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But how does our court system maintain its legitimacy if it remains out of date.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.)

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.”

 

 

 

 

An Evening Reception with Justice Myers: Summary Judgment Motions & More

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Last week I had the honour of chairing “An Evening Reception with Justice Myers” at the Ontario Bar Association. Justice Myers spoke about summary judgment motions and drafting proper motion materials.

SUMMARY JUDGMENT MOTIONS

Summary judgment motions are a procedure that can dispose of an action without the use of a trial.

Justice Myers emphasized how Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 changed the court’s approach towards summary judgment motions, citing paragraphs 44 and 59 in facilitating this change. The test for granting summary judgment motions went from: “is there a genuine issue for trial” to “is there a genuine issue requiring a trial”. This means that trials are no longer the default procedure. Consequently, counsel can ask themselves in each case: “can I use a summary judgement motion instead of a trial?”

I venture that many counsel do not use summary judgment motions in every case because of the energy and foresight required to put together a summary judgment motion. Currently, the civil court system rewards parties that delay preparation of their case to the later stages of the litigation life cycle.

In a summary judgment motion, counsel must address (1) why it is fair and just for a dispute to be resolved by way of summary judgment AND (2) why the case turns on a discrete issue. On a summary judgment motion, counsel must provide all the evidence that they would have used at trial. It is a return to the old days when trials took a day or two.

WRITING MOTION MATERIALS

In preparing motion materials, lawyers should avoid words like: surely, certainly, and obviously. Just get rid of them and use plain English. You are allowed to say “I attach” as opposed to “Attached hereto to this may affidavit is….”.

In the Notice of Motion, keep it brief. Carefully draft the relief sought. Force the judge to read your affidavit.

In an affidavit, lawyers should provide the facts that establish the relief sought. Too often lawyers indiscriminately throw in everything. Instead, highlight the important facts. And do not overstate your case. Judges hate being deceived.

Also, lawyers can dispense with the saying at the end of an affidavit: “This motion is made for no other improper purpose”. This saying came about in the time of writs, and it no longer serves any use today.

 

For factums, structure it accordingly:

  1. State what you want
  2. Address the key facts. Pinpoint the source of the fact.
  3. Address the law.
  4. Conclusion.

Again, I would like to thank Justice Myers for his time.

Patrong v Banks et al., Pleading a Drive by Shooting

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In the recent case Patrong v Banks et al., 2015 ONSC 3078 the defendants are calling for an end to the lawsuit before any evidence has been put to the court. Justice Myers writes:

Why should a defendant be able to end a lawsuit that is just at its very beginning?  The defendants have not even denied the story told by the plaintiffs yet.  Nor have they written their statement of defence to set out their side of the story.  But lawsuits are expensive.  They are also a big intrusion into peoples’ lives.  They are stressful.  Because lawsuits are so important, stressful, expensive, and intrusive, the procedural law allows defendants to try to show that they should not be forced to go through the ordeal of being sued…

Mr. Patrong and his mother want to sue the police for compensation for injuries that they suffered due to the negligence of the police.  The story set out above has not yet been proven.  It is the Patrongs’ claim.

Rules have been developed to help the court test the validity of claims in cases like this.  … The law is supposed to change and develop.  If it is reasonably possible that the facts alleged by the plaintiffs might push the law in a novel but plausible way, then the claim should be allowed to proceed. If, however, assuming the facts to be true and reading the claim generously, it is plain and obvious that the plaintiffs cannot win, then I must dismiss the lawsuit now and save everyone the trouble of dealing with it further for no reason.  R. v. Imperial Tobacco Canada Ltd.2011 SCC 42 (CanLII)Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC)[1990] 2 S.C.R. 959.

Ultimately Justice Myers allowed the statement of claim to stand. He states that it is not plain and obvious that the case cannot succeed. He notes in passing that “one stops to wonder whether Detective Banks would have made the same decision … if Riley had been headed into Rosedale or Forest Hill rather than into Malvern.  But that is for another day. There are good reasons to find a duty of care on the facts alleged...”

Find the excellent case here: http://bit.ly/1K4xD9d

Motions in Law

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San Antonio’s Bankruptcy Judge Leif M. Clark wrote these noteworthy remarks:

Before the court is a motion … The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible. [FN 1]

[FN 1] Or, in the words of the competition judge to Adam Sandler’s title character in the movie, “Billy Madison“, after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

At the Motions in Law Proceedings hosted by the OBA, Melvyn Solomon discussed the importance of motions (a formal request made to a judge for an order or judgment).

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Solomon states that if you can bring a motion that supports the theme of your case, then it is worthwhile. The theme = two sentences that captures your case. You should be able to explain your theme to a stranger.

Motions can be helpful if they bring people to the table or if they put your adversary at a disadvantage. When writing the material for the motion, go about it methodically.

  • First you should write the draft order (that way you know what you want and what evidence and law you need to support it).
  • Second, write a brief closing argument (while doing this it is useful to have a document brief and chronology).
  • Third, list your good facts and bad facts (see if you can neutralize the bad facts through the motion).
  • Fourth, write the story of the client’s case in 10-15 sentences. A concise overview of the case is the foundation of persuasion.

At the oral hearing, outline a roadmap for the motion judge, hand-up a draft order, and lead with your strongest argument. Always remember, it is a dialogue. You can draft the first five sentences to help with nerves but otherwise rely mostly on a one page outline at the hearing. On the top of the page, you should write “SPEAK SLOWLY”.

Pathways to Power: Women in Politics

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Lord Varys: Power is a curious thing, my lord. Are you fond of riddles?
Tyrion Lannister: Why? Am I about to hear one?
Lord Varys: Three great men sit in a room: a king, a priest, and a rich man. Between them stands a common sellsword [mercenary]. Each great man bids the sellsword kill the other two. Who lives, who dies?
Tyrion Lannister: Depends on the sellsword.
Lord Varys: Does it? He has neither crown, nor gold, nor favor with the gods…
Lord Varys: Power resides where men believe it resides. It’s a trick. A shadow on the wall. And a very small man can cast a very large shadow. – Game of Thrones, Season 2

Last night I attended the Ontario Bar Association’s event Pathways to Power: Women in Politics.

Former politicians Barbara Hall, Martha Findlay, and Gina Branman encouraged us to get involved in politics and to be principled in our partisanship, honest, and confident. They warned that the media can smell dishonesty. “If you’re dishonest and lack in principle you will get nailed.”

They also touted experience and encouraged women (and men) to enter elected office later in life. Often times, we discuss how to get young women involved. But, mature women have a lot to offer and bring a wealth of experience with them.

Furthermore, they all emphasized the importance of a thick skin. “Let it roll off your back.” Gina quoted Martha Findlay and said:

I can’t tell you the number of women who say, I don’t know if I have a thick-enough skin, or I don’t know if I have what it takes. And I look at them and think: Okay, you told me you have three children. You started your own business. You now employ 73 people. And you tell me you don’t have a thick-enough skin and you don’t think you have what it takes? Look in a mirror. Why is it that some people who are so capable and so accomplished somehow still don’t think they have what it takes?

Martha Findlay also quoted the premier of British Columbia Christy Clark’s response to the media when asked by journalist Bill Good how she planned to balance her role as a mother with the responsibilities of serving as provincial premier:

Stephen Harper manages to go home for dinner with his kids every night, or most nights when he’s in the country, and he has breakfast with them in the morning, and he’s a pretty busy guy. He does a pretty good job. Every family has their own circumstances and makes their own decisions. I’ve talked about this with my family. My son is no longer a toddler. We’ve had this conversation. And we can handle it.

Hopefully, one day we will see just as many women casting shadows on the wall as men.

Oral Advocacy Boot Camp

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Yesterday I participated in the Oral Advocacy Boot Camp held by the Ontario Bar Association.

I would like to share a few pointers from the event.

  1. There is only one podium. You own the podium until you start speaking, after that you share the floor with the judge and the witness.
  2. Pauses: Use pauses to help punctuate your points. Leave spaces on your paper to remind yourself to pause so the listener knows when one point ends and another begins.
  3. Take a breath instead of filling your statements with filler words like um, and, so, like etc.
  4. If you think that you are talking at the right pace, then you are talking too fast. The brain can only absorb so much information at a time.
  5. Persuasion: it is not what you say. It is what the listener hears.
  6. Be organized with your arguments – Point first.
  7. Keep eye contact with your audience.
  8. Regulate the tempo of your argument. Be arrhythmic.
  9. Speak simply. Always use a smaller word instead of a bigger word. Do not clutter the record with unnecessary phrases like: “I put it to you…”.
  10. Open-ended questions begin with who, what, where, when, how, and why.
  11. Closed-ended questions begin with a passive verb. The cross is the lawyer’s narrative said through simple, declaratory statements. Only one fact per question!
  12. Use a header question to signal to the judge when you are changing topics.
  13. Do not interrupt opposing counsel.
  14. Do not over identify with your client. Otherwise, you will lose perspective and provide less effective advice.
  15. Manage your appearance. No messy outfits. No messy collars. Do not wear vests that are too tight. Keep your hair out of your face. Do not play with change in your pocket. Do not sway back and forth. Basically, minimize all distractions so the judge can follow your argument. Watch your hand movements – do not over use them. Do not provide the judge with the opportunity to say (or think) “I can’t hear you over your brown shoes”.
  16. You have the right to be in the courtroom, to be heard, and to be treated fairly.