Saturday, December 16, 2006

What I Like About the B.C. Justice Review Report

I have now read the full British Columbia Justice Review Task Force report, Effective and Affordable Civil Justice. I summarized the main recommendations here. I like the general approach proposed by the Task Force, and I will write a little bit about that today. Not surprisingly--I am a lawyer--I have some concerns about a few of the details in the proposals. I intend to write a future post about my concerns, which I will probably cleverly entitle, "What I Don't Like About the B.C. Justice Review Report."

The proposals are intended to address the problems in civil disputes of high costs, delay, and dissatisfaction with the process.

The report is proposing a shift in how lawyers, and the legal system, looks at civil dispute resolution. Instead of a straight line from the filing of the court documents, through discoveries (getting information from the other side), to a conventional trial, the Task Force is proposing a model that looks more like a wheel with spokes from the inside to the outer rim. At the center is an early case conference with a judge or master, in which the parties discuss the issues, procedure, dispute resolution, and timelines. The spokes are the different paths from the center to a resolution at the outer rim. Some spokes might lead to mediation, others to a summary trial, and others to a full trial. Some spokes may have experts, and full pre-trial discovery processes, and others may have less pre-trial process.

The idea is to make the system proportional to what is at stake in the dispute. It does not make sense to have the same procedures in a $30,000 claim as in a $10 million dollar claim.

What I like most about this proposal is that it will force lawyers to think through their cases, and get the parties to talk about how to proceed, early in the process. There is a certain inertia in lawsuits. Like other people, lawyers work toward deadlines. In many cases most of the work is done as court motions, discoveries, or trial dates approach, instead of at the outset. Similarly, the people involved in disputes sometimes don't negotiate until a trial or other major event is near.

If sufficient time is allocated to a case conference, and everyone takes the process seriously, the case management conference will assist in resolving many disputes much earlier than is currently the case. There may be some more costs for clients upfront for their lawyers to prepare for and attend the case conference, but I agree that the case conference will save costs in many cases. Lawyers spend a great deal of time preparing for trials, although a small percentage of cases--less than 3 percent, according to the report--are decided by a trial. If the case conference can result in short-cutting the process to resolution, the overall costs should decrease.

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