Thursday, February 08, 2007

What I Don't Like About the B.C. Justice Review Report

As I wrote here, on the whole, I like the B.C. Justice Review Task Force's report Effective and Affordable Justice. But, there are a few recommendations I don't like. I will write about a couple of them. I approach this primarily from the perspective of a lawyer who handles estate litigation cases. I suspect that the Task Force was more focused on other types of suits, especially personal injury claims.

First, I don't like the idea that someone who initiates a claim or responds to a claim should be required to certify that the facts he or she alleges are true. When a court process is started each side makes allegations in writing, which defines the issues in the law suit. In some cases, the person making the allegation does not know if the allegations are true. No, I am not suggesting that people should make outlandish claims without any basis. But, sometimes people start a suit believing that something is not quite right, but not knowing what. (I will give an example later.) Through the pretrial discovery process, they gather the evidence to prove their cases. In some cases there is no other way to get the evidence than to start a suit and make allegations.

Secondly, I don't like the proposed restrictions on the pretrial discovery process. The Task Force is recommending that written interrogatories (questions put in writing to the other side) be eliminated. The Task Force also recommends that oral examinations for discovery be eliminated for cases valued at $100,000 or less, except by agreement or with permission from the court. The Task Force also recommends significant restrictions on the length of examinations for discovery in cases valued at more than $100,000.

I agree that interrogatories and examinations for discovery can be abused. One side can attempt to make the other side settle for an unfair amount by driving up the legal costs through lengthy interrogatories or discoveries. It happens. Sometimes, I think discoveries take to long because the lawyers don't prepare well enough, and are not focused in their questioning.

But, costs work both ways. Each side has a financial incentive to use the pretrial discovery process efficiently. I have not met anyone who likes to pay high legal fees.

Most litigants and lawyers do not abuse interrogatories or examinations for discovery. Used effectively, each side can find out the necessary facts to get an idea of the strength of his or her case, and of his or her opponent's case. These tools are often necessary for the parties to have sufficient information to engage in meaningful negotiations. Its just like business people who do due diligence before making a business deal.

Interrogatories can be particularly effective in estate litigation matters. I have developed a form of interrogatories for Wills Variation Act claims, seeking financial information from each of the opposing parties. I find that most of the time, the other lawyer sends me identical interrogatories addressed to my client. I have settled some cases after each side answered the other's interrogatories, without any oral examinations for discovery. This can save thousands of dollars.

The combination of requiring each side to certify the facts alleged when a case is initiated and limiting or in some cases eliminated the pretrial discovery process will make it very difficult for someone to challenge suspect wills or transactions made by someone who was not competent or who was improperly influenced. Conversely, it will allow more people to get away with financially abusing vulnerable people.

Let me give a fictional example. Sally was her father's only child. Her mother passed away five years ago. Sally lives in Halifax, and her father lived in Kelowna. They had a good relationship, but because of the distance, Sally was only able to see her father once a year during the last ten years of his life. A couple of years ago his health deteriorated. He had a mild stroke, but seemed to recover mentally. Physically, he became increasingly frail. Sally's father developed a friendship with a younger person, who spent more and more time with him. A year ago, Sally's father started transferring his savings to his younger friend. He made a will two months ago, appointing his friend as his executor, and leaving his estate to his friend. Sally's father dies. Sally finds out about his father's friend and the will after her father's death.

Sally tries to get information about what happened. She calls her father's doctor. His doctor says that because of privacy laws, she cannot give her any of his records or other information about her father's mental condition during the last year of his life. She can only release the information to the executor of his will. She goes to her father's bank, and gets a similar response. She goes to the lawyer who drew the will, but the lawyer says that he cannot ethically give her any information.

The circumstances may be suspicious, but Sally does not really have any evidence that her father was defrauded, unduly influenced, or did not have capacity. Can she certify any of those things if she starts a lawsuit under the Task Force's proposals?

If she does start a lawsuit, under the current rules she can probably obtain an order requiring her father's doctor, the bank and even the lawyer to produce their records. (I am not aware of any recommendations to do away with these types of orders, but I am concerned about the direction the recommendations may take us.) Under the current rules, her lawyer can also question her father's friend in an examination for discovery.

I am concerned that if the various pretrial procedures are emasculated, it would be difficult for Sally, or someone like Sally, to either build her case, or at least find out what happened if she does not have a good case.

I think a better approach would be to allow a judge or master at a case conference put some initial limits on pretrial discovery, subject to a review if either side believes he or she needs more discovery.

No comments: