Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Do Judges have a Public Relations Problem?

Recently the TV show This Hour has 22 Minutes did a piece on Canadian judges. It’s a riveting piece on the public’s perception of judges.

The skit called “Judges: a Danger to Canadian Women” can be viewed here: http://www.cbc.ca/22minutes/videos/clips-season-24/judges-a-danger-to-canadian-women. At first viewers think the show is commenting on xenophobia, then it turns out to be about judges.

The judiciary should take this piece seriously. It is a current temperature read on the public’s feelings towards judges.

Is it fair that judges are seen negatively?

No. Most judges are excellent, care about justice, and are deeply competent.

Despite this, the public sees things differently. The internet has transformed the way we receive information. However, our courts have failed to reflect this change. Simply rendering decisions in dense, legalese is not enough. The public expects and requires our courts to communicate with them in a way that they understand.

I hope that our courts can adapt new ways of explaining itself to the public. Including explaining our judicial system, explaining the law, and explaining their decisions in novel ways.

To find new ways of doing things, we need to ask questions. Why are decisions only provided with written reasons? We now can create videos. We can create flowcharts. We can create graphics. We can use social media.

Also, why do we televise Supreme Court proceedings and not others? What about matters at the Ontario Court of Appeal? What about trials of national importance or of great public interest? Wouldn’t seeing great lawyers and great judges in action increase our faith in our judiciary?

Of course the medium would need to be adjusted accordingly. But if our courts want to continue to maintain the public’s trust, then it needs to look seriously at how it communicates with the public. Public trust in the judiciary is integral to democratic order.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Commentary on the “Unintended Consequences: The Regressive Effects of Increased Access to Courts”

In “Unintended Consequences: The Regressive Effects of Increased Access to Courts“, law professors Anthony Niblett and Albert Yoon analyzed users of the small claims court system. In 2010, the small claims court’s jurisdiction increased from $10,000 to $25,000. When Niblett and Yoon examined if that change increased access to the courts, they found a paradoxical result.

Niblett and Yoon looked at the postal codes recorded with the court and compared the postal code data to data from Statistics Canada. Following the change in the court’s jurisdiction, they found that the plaintiffs were on average from richer neighbourhoods. Household income increased from $80,052 to $82,868.

“As plaintiffs increasingly come from more affluent neighborhoods after the jurisdictional change, we also observe that defendants come from more affluent neighbourhoods after 2010. This trend is similarly true of both individuals and business defendants.”

Further, after the change in jurisdiction, over 30 percent of all claims filed alleged damages in excess of $10,000. Below is a chart of the average amount claimed per year:

2006 $3,174
2007 $3,385
2008 $3,647
2009 $3,593
2010 $6,704
2011 $6,852
2012 $7,055
2013 $7,011

As a result of the increased amounts claimed, Niblett and Yoon suspect that more complex cases have infiltrated the small claims court system. This in turn has increased the backlog. “Cases now take longer to be resolved. Cases are heard first-come, first-served, with no preference for expediting “very small” claims.”

In my opinion, the demographics revealed in this report are consistent with a pattern. Groups that are often forced to deal with the judicial system (e.g. through criminal proceedings) tend not to be the groups that choose to engage with the court system. We frequently see marginalized groups disproportionately represented in prisons but do not see those same groups voluntarily resolving family or civil disputes through the courts. Revealing that although our courts are technically open to all, in actuality they are not.

Sometimes it seems that not much has changed since Sir James Matthew (an Irish judge at the turn of the 20th century) quipped that “justice is open to all, like the Ritz hotel”.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

The Hillbilly Elegy: One Man’s Ploy Into Politics

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In the Hillbilly Elegy, J.D. Vance tells the tale of his struggle to attain the American Dream. From his humble roots of “white trash” (self-described) to Yale law school graduate, Vance paints the story of a home life in crisis. He then extrapolates from his personal experience to comment on the sociological causes of poverty.

Although touching at times with some poignant insights, this memoir reeks of white, male privilege. Vance recognizes his privilege in passing. But his acknowledgement rings hollow, especially as he compares his plight to that of impoverished black Americans.

Vance is a tall, attractive, white, Christian, heterosexual, healthy, able-bodied man. He can walk into any room and command an audience by virtue of these characteristics. A privilege that he comments on, more for lip service and optics, than for anything else.

Rather the narrative is constructed perfectly and tactically for a future career in politics (my prediction). At its core the narrative is simple – a must for any political campaign. He worked hard. He escaped poverty. He enlisted in the army. He went to Yale. He got married. And he clerked for a judge.

Now at 32 years of age, he feels empowered to tell you what’s wrong with America. No doctorate needed. Just personal experience.

Vance explains why his people are poor:

“We spend our way into the poorhouse. We buy giant TVs and iPads. Our children wear nice clothes thanks to high-interest credit cards and payday loans… We spend to pretend that we’re upper middle class… Our homes are a chaotic mess. We scream and yell at each other… At least one member of the family uses drugs… We don’t study as children, and we don’t make our kids study when we’re parents… We choose not to work when we should be looking for jobs… We talk to our children about responsibility, but we never walk the walk… Our eating and exercise habits seem designed to send us to an early grave…” [Emphasis added.]

There are kernels of truths in his statements. But his under-valuing of the systemic roots of poverty goes to show how deep his own luck and privilege runs. Poverty has nothing to do with iPads.

Not everyone can just pick themselves up by their bootstraps and attain the American dream.  Systemic barriers run deep.

 

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Is Justice Blind?

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Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

Paper Filing: For Shame!

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In Ontario, our courts love paper. Maybe the judges and the staff loved the 1990s. I certainly did. But some things are better left in that decade, like the annoying toy Furby and paper filing.

This past week, I had to file two motion records with the court. Unfortunately, I was cutting it close to the deadline. Both motion records had to be filed the day they were due. In other jurisdictions, at a click of mouse, I could file the material from my office. But instead, in Ontario litigants have to wait in line to file the material with the court. And what happens if you’ve waited there all day, just to be told at 4:00pm that something is deficient and the court won’t accept it? You are out of luck.

This is unacceptable!

In 2016, entire industries are being disrupted by the Internet. Taxi cabs, the food industry, the music industry, just to name a few. So why does our court think that they are invincible? Why do they insist on paper filing? Are they just trying to keep legions of people employed, whose jobs depend on moving paper around the court system?

In Israel, the courts have implemented the Next Generation Court System. It has five basic features: an electronic file, the judge’s workspace, task assignment, calendar, and e-filing. Under this system, the public has access to publicly available court documents, while the litigants and judges have access to the entire court file through smart cards and passwords.

The judge’s workspace displays all outstanding matters that require attention and includes court documents like pleadings, affidavits, and exhibits. The inclusion of court documents allows judges to search for a key term while writing or hearing testimony. The task assignment feature assigns each step in a proceeding to the appropriate person. The calendar feature allows judges to schedule matters without cumbersome hearings, like scheduling court. The e-filing of complaints and motions reduces the cost of storing and transmitting documents and enables people to access court documents from anywhere. Further access from anywhere helps judges too. The ability to view all materials digitally during trial or at home shortens proceedings and the time needed to write decisions.

Other jurisdictions have entered the new millennium. And so should we. Our government should be ashamed of the lack of resources invested in our judicial system.

Judge Richard Posner: Let Fairness Prevail

A man walks into your law office. He asks: “what are my chances in winning this lawsuit?”

The answer?

Ask yourself, “how would a wise, moral man, with no legal training, decide this case?”

In Divergent Paths: The Academy and the Judiciary, famous American Judge Richard Posner explains that “most judges evaluate cases in a holistic, intuitive manner, reaching a tentative conclusion that they then subject to technical legal analysis.” This is because judges simply want to do what is fair.

Fairness is why the Courts have applied Rule 2.1 of the Ontario Rules of Civil Procedure so robustly. Sometimes litigants initiate outlandish lawsuits that have no right in clogging up the justice system. Recognizing this, the Courts have welcomed the careful application of Rule 2.1 to dispose of abusive claims.

Rule 2.1.01 (1) states that a court may dismiss an action if it looks to be frivolous, vexatious, or an abuse of process. An example of an abusive claim could be a case where a person sues another person for the fifth time over the same dispute. Or, maybe it’s a claim for $93.9 million in reference to “the illegal relationship between the defendant and the “Superior Court of Toronto; its judges and officers” (Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801)

In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal of Ontario explains that:

[8]         … the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.

Rule 2.1 is simply Judge Posner’s theory in motion. Judges really are just trying to do what’s fair.

How to Stop Our Civil Courts from Atrophying

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law… [W]e must change our ways and work to re-invigorate our public civil courts.” Justice David M. Brown of the Ontario Court of Appeal in “Commercial Litigation in the Next 10 Years: A Call for Reform”

Currently, our courts are hemorrhaging civil cases. Instead of disputes being heard by judges, they are being heard by private arbitrators or tribunals. Oftentimes the reason for this diversion is cost. People proclaim that it is simply too slow and too costly to use our judicial system.

The atrophying of our civil courts means that our democracy pays the price. Democracy only thrives when everyone, including small businesses and individuals, have meaningful access to an independent court. This is because public dispute resolution maintains order in our society and ensures that our laws keep pace with the times. By doing so, it supports the public’s faith our governmental structure.

Tribunals are not a good enough substitute to our courts. Partly because tribunals, as creatures of statute, can be abolished at any time, including at a political whim.

In “A Call for Reform”, Justice Brown offers several strategies for stopping the reduction of our civil courts. In particular, he cites adopting a “Front-End-Assignment-of-Trial Dates” System. Trial dates would be assigned upon the close or deemed close of pleadings. And once assigned, these dates would be carved in stone. I would go one step one further. I would say these trial dates should be assigned upon the issuance of the Statement of Claim and then set in stone.

Forcing people to adhere to a strict timeline incentivizes lawyers to work quickly and not let their cases languish. To incentivize lawyers, Justice Brown recommends that parties be mandated to disclose the documents that they intend to rely upon at trial when they file their claim or defence. By forcing lawyers to think about the trial, we can begin to chip away at the culture that sees the skilled civil barrister as the “motions specialist, [rather than] the final hearing expert”.

To change the order of production and to assign court dates at the beginning of a lawsuit, we need to adopt technology in our courtrooms. “[L]et the light shine in, dispel the ghosts of the past, and have the Bench, Bar and provincial government move ahead to modernise our court technology systems.” Hopefully in doing so, we will move our culture from one that praises the motion specialist over the civil trial lawyer.

Expert Witnesses and The Extinction of the Civil Trial

Trials play an important role in developing the law. Unfortunately, as Justice Edwards stated at the conference Tricks of the Trade, civil trials are at a real risk of becoming extinct if we do not collectively work together to shorten trials.

One of the main reasons that trials have increased in duration is the use of expert witnesses. Lawyers have outsourced aspects of their traditional role to expert witnesses because they would rather speak through these experts than use their own voice. I believe the trend of the hired gun started with lawyers’ lacking the confidence to establish their own case on their own talents.

It is time that we reversed the trend of the hired gun. It is time we stopped trying to out-hire one another with expert witnesses and investigators.

We are only hurting our cases. Client lose because prosecuting or defending their case takes longer and costs more. Lawyers lose because they lose the opportunity to truly understand their case because they are delegating the thinking and the investigating to someone else. Courts lose because trials take longer. And worst of all, they take longer because of “empty calories”. Expert witnesses’ testimonies are often tainted by the smell of money, even if it is unconscious bias on the part of the expert. This causes judges to place less weight on their testimony.

It is time that we entered a new culture. A culture that devalues experts and sees them as a resource to be used in the rarest of circumstances. It is time that we started shaming other lawyers for retaining the known hired guns, the experts that only do plaintiff work or only do defence work. We all know who these experts are. Even the judges know it. So who are we fooling?

Let’s reverse the culture and take back the civil trial. Let’s stop the continual deprivation of the common law by privatizing cases through settling at mediation. It’s time we started trying civil cases more often and more quickly. We don’t need three weeks to go through someone’s injuries in a car accident.

More civil trials, more often, and more quickly should be our aim.