How are we ever going to manage the enormous volumes of electronically stored information that need to be reviewed for many of today’s legal disputes?
One of the most promising technologies to handle this task is “predictive coding “of electronic documents. What this means is that through the use of skilled reviewers to take random samples of the electronic documents and to code those, that the software “learns” what is relevant and what is not, so that after a statistically valid sample of the documents is coded, the computer software can very quickly and accurately replicate the choices made by the reviewers on the remainder of the database.
The results from the use of this technology are now as good as the document reviews by teams of human reviewers, while the costs are a very small fraction of the cost of human reviewers. See for example Herb Roitblat, Is predictive coding defensible?
This is very good news for clients facing the enormous costs of electronic document review on large cases.
It was my privilege to take part in an important international gathering of experts in dispute resolution and online systems on November 2 and 3, 2010 in Richmond, British Columbia. The meeting was an opportunity for the development of proposals for an international system of online dispute resolution particularly geared to small value consumer to consumer or business to consumer disputes. The communiqué and links to the conference materials are here.
The development of internationally recognized standards for dispute resolution which was the topic of this conference, is the subject of ongoing consultations at the United Nations Commission on International Trade Law (UNCITRAL), the links to which are here.
I would particularly like to thank David Bilinsky of the Law Society of British Columbia for his important role in organizing this conference and for inviting me to take part in this important work which has prospects of transforming both international and national methods of dispute resolution.
I had the honour of participating in a panel presentation on “Corporate Perspectives on Business Conflict Management” to the International Bar Association Conference in Vancouver on October 5, 2010.
This panel was chaired by F Peter Phillips of Business Conflict Management LLC, Montclair, New Jersey, USA and Jane Player of Bird & Bird LLP, London, England. The panel also included presentations by Roland Schroeder, Senior Counsel Litigation and Legal Policy, General Electric Company, Fairfield Connecticut, David H. Burt, Corporate Counsel, E.I. du Pont de Nemours and Company, David Talbot of Coca-Cola Enterprises of Boise Idaho, Albert Hilber of Swiss Reinsurance America Corporation, Armonk New York, and Patrick Green of Henderson Chambers and Resolex, of London, U.K.
The focus of most of the submissions on the panel was on techniques for the management of disputes in order to achieve economic savings. It was generally noted that the adoption of such dispute management programs also helped improve key business relationships and thus, the reputation and trust in the business enterprise.
A striking example of efficiency was illustrated in the presentation of Patrick Green. He spoke of the U.K. company that he founded, Resolex which provides a project dispute management service which, for example, on a construction project would resolve disputes as they arise in “real time.”
My remarks were entitled “Dealing with Disputes: from Litigation Management to Dispute Management to Relationship Management”. The presentations on behalf of leading companies such as those represented on the panel reflected these shifts in emphasis. Without exception, the speakers maintained that their companies had moved far beyond the management of litigation in their approach to disputes, although that remains an important aspect of their professional responsibilities.
Current practices generally focus on dispute management, i.e. to the careful handling of disputes with a view to optimizing the outcomes of those disputes with a view to minimizing unnecessary waste of time, and money.
Best practices integrate yet a further dimension of analysis, i.e. how to best manage the key relationships of the business with a view to strengthening those relationships, developing mutual trust, and thus, creating an environment where disputes are worked out as part of the business relationship before they get ugly and turn into costly, time-consuming conflicts.
At the conference, I urged open recognition and express careful handling of the emotional component of disputes and in the improvement of those relationships based on adherence to core values of mutual respect, truth and integrity.
It is now generally the case in English speaking Canada that an apology cannot be used in evidence in a civil trial. However this is not true in criminal cases.
In 2006, British Columbia enacted the Apology Act, S.B.C. 2006, c. 19, the first such legislation in Canada. Other provinces have subsequently enacted similar legislation so that all provinces except Quebec, New Brunswick and Prince Edward Island now provide similar protections. Such legislation had ample precedents in the United States and in Australia. (For a critical history and analysis of such legislation see the thesis of Graham Barr Disingenuous or Novel? An Examination of Apology Legislation in Canada.
Various grounds were argued as reasons to enact such legislation in Canada. Some argued that such legislation was good social policy in encouraging early and less costly resolution of disputes. Some referred to experience in the U.S. particularly in the field of medical malpractice where early apologies to patients coupled with early and fair offers of compensation had dramatically reduced volumes of litigation and the overall cost of compensating for medical errors.
Some argued that making an apology for causing harm was simply the “right thing to do” on moral grounds.
Some saw the enactment of such legislation as a step in moving towards less adversarial means of dispute resolution.
It is perhaps early days to assess the extent to which the actual experience in Canada with such legislation shows progress in meeting these aims.
However. because criminal law in Canada is exclusively under the jurisdiction of the federal government such legislation would have to be enacted by the federal government before such protections would apply to criminal proceedings.
In criminal law apologies made to a victim of a crime or perhaps to a related person are generally considered to be “admissions” which may be used in court to help prove the guilt of the party making the admission. In some situations where the person to whom the apology is made is considered to have some ability to control the laying of a charge, the more stringent legal rules which apply to the proof of confessions must be met.
In a case before the Supreme Court of Canada last year, the charge was one of sexual assault upon a child by a step father. An apology made in an email to the mother of the child was held by the Supreme Court of Canada to be admissible against him. R. v. S.G.T., 2010 SCC 20,  1 S.C.R. 688
Such decisions affirm the obvious point that in criminal matters, the courts are applying rules in the treatment of apologies from the rules that now govern civil matters in most provinces. Those considering the advisability of making an apology will obviously continue to bear this important distinction in mind.
Filed in: Litigation
This month the Court of Appeal has posted its Annual Report for 2009.
So how is the Court of Appeal doing? In fairness, the Annual Report does not seek to answer large questions about the quality of justice. Understandably there is no attempt to assess the quality of the decisions of the Court of Appeal, a task that must be left to academics and others. This report gives the statistics on the operations of the Court of Appeal and includes general updates on the operations of the Court and the Court’s plans for the present year.
The number of appeals are down from their level of say five or ten years ago. This is consistent with the decline in the number of trials in British Columbia and elsewhere. Without doubt one of the main causes for decline in use of the courts has been the cost of legal representation. The Court is mindful of this issue. It backs the pro bono duty counsel that appear in the civil Chambers. The report also notes that the number of civil appeals heard with at least one self-represented party more than doubled from 2008.
The financial burden of seeking redress in the courts is a well known issue for the government and for the Court but the government has not gathered specific data on these costs. Research is needed to measure the costs of litigation including appeals and to put those costs in a meaningful context, as for example by comparison to average family incomes and cost of living data .
So too there should be more data gathered on the speed at which appeals are determined. The Annual Report does not report on the average length of time that it takes to have an appeal determined from beginning to end although it would seem that this data is available. The court tracks the numbers of appeals disposed of compared to the number of new filings, and this figure hovers near 100% so that the Court is not falling behind in its work. The Annual Report also notes that decisions are handed down within six months of hearing in 84% of the civil appeals. However the longer delays may occur between the Notice of Appeal and the time of hearing.
On the criminal side, the Court has on May 14, 2010 announced a pilot project to establish a new regime to ensure that conviction and acquittal appeals are heard within one year of the filing of the notice of appeal. The pilot project has been developed in consultation with representatives of the federal and provincial Crown, defence bar and the Legal Services Society. The project is going to be monitored and feedback from those involved in the project will be obtained for consideration by the Rules Committee of the Court. Such a process provides a useful model to improve the civil side as well.
It is important to keep in mind that disputes in British Columbia are overwhelmingly resolved through negotiations. Only a very small fraction of disputes, perhaps on the order of one in a thousand disputes make it to the Court of Appeal. Although quite properly the Court’s immediate focus is on the cases before them, by far the greater influence on justice flows from the indirect effect of the Court’s judgments on other disputes. To the extent that the Court’s deliberations are predictable, principled, economical, and swift they will favour principled resolution of disputes throughout the province. Conversely where the result in court is unpredictable, or a result comes only after burdensome expense and delay, justice suffers.
These realities are generally clear to all those who have had first hand experience of civil disputes in the province. But improvement in the cost, speed, and level of public satisfaction will come only through initiatives which set specific goals and which monitor progress towards those goals, as for example with the criminal pilot project. It may be too much to expect that an Annual Report of the Court of Appeal should fulfill that function, but perhaps this could be undertaken by the government. There is no doubt that there would be a significant benefit from such an effort.
Logic can tell us important things about settling disputes. For example:
- That a settlement can’t happen without both sides (or all sides) agreeing.
- That settlement may be difficult without understanding the perspective of the other side(s).
- You can’t understand something without knowing about it. (We are talking logic here.)
But this is about as far as logic can take you. Logic cannot tell you how the other side sees the issues in dispute. More significantly logic cannot tell you how the other side feels about those issues. It is most unwise to assume that you understand that perspective without hearing it from them. (Here is something you can try at home. Try telling your spouse that you understand their perspective completely without listening to them. See how well this works.) Similarly since settlement is a reciprocal process, it is unwise to assume that the other side understands your side of the dispute without you telling them about it.
Listening includes demonstrating that you have heard what has been said. You should be able to repeat back the sense of what you have been told. If you can’t, get them to elaborate, i.e. to repeat themselves, so that you can do so. Take notes if you need to. Then paraphrase fairly what they are saying. Get them to confirm that you have understood what they are saying correctly. When they correct you, similarly confirm that you have understood the correction.
Take your time so that there is a moment when you have fairly put their position, and they can see that you have understood it. Unless and until you have understood and absorbed the other side’s best points, it may be difficult for the other side to listen to your best points.
Filed in: Resources
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%.
There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled.
Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier .
The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.
Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society.
In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion see: http://en.wikipedia.org/wiki/Barrister#Differences
Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits. But many claims are resolved without litigation – by negotiation, mediation or arbitration.
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia. The functions that are restricted to members of the Law Society [from the definition of "practice of law", section 1 (1)] include:
a) appearing as counsel or advocate,
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
e) giving legal advice;
These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.
I find it useful to break down the issues in disputes into:
- factual and evidentiary issues – what happened and how can that be shown
- legal issues – what does the law say about situations like this
- financial issues – what are the costs and benefits of various options for dealing with the matters in dispute
- tactical issues – issues of timing, the sequence of dealing with issues and procedural choices for resolving the dispute
- emotional issues – how the parties feel about the dispute
Lawyers in dealing with disputes have traditionally focused on legal issues and they have focused on the courts’ litigation procedures. But now, in a time when almost all cases outside court lawyers must also deal with this larger range of issues.
Of these different kinds of issues, the emotional issues are often the most important. Lawyers see many cases when the facts, the law, finances, and their tactical considerations all very much against them, but they will not settle. Anger or some other compelling emotion governs what they will do, and that emotion must be given at least as much attention as the other issues if settlement is to be achieved.
Lawyers and others often make the mistake of believing that settlement is, or at least should be, governed by the same rules of evidence, relevance and logic as the legal issues that are the substance of legal analysis and of the court process for adjudicating disputes.
But these different sorts of issues have their own dynamics and considerations, especially in the context of negotiations leading to settlement. Lawyers need to be alive to these differences and to expand the range of approaches that they bring to bring to the table.
For there is no doubt that the reality is that parties in dispute are affected by all of these sorts of issues and the skill of counsel is often in balancing the particular balance of trade-offs among these factors in coming to a settlement which best meets their clients’ interests.
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Everyone expresses concern that the high costs of legal services necessary to conduct a dispute in the courts of Canada make it practically impossible for many people to effectively seek redress in court. Usually the problem is not identified in this plain spoken way. Usually the problem is discussed euphemistically as one of “access to justice.”
But the problem is not one of “access.” We have a court system that is admirably open, honest, and principled in how it deals with disputes. In very many respects we are fortunate in Canada with the quality of our justice system. But it has a serious problem. The problem is how to pay for the legal representation that is necessary to present a case in court.
For large businesses and government this is not a serious problem. Rather it is an unacknowledged feature of the system. For them, an expensive justice system works well. They can bear the costs of litigation. At the same time people of average means often cannot effectively bring claims against them. In the case of businesses, when they are sued, they can pass along those costs to customers, or call on insurance, and they can tax deduct necessary legal expenses. In the case of government, the costs can simply be passed along to taxpayers.
It is not a secret that inequality of economic power can affect the outcome of a dispute. This gives rise to a problem of “justice”, plain and simple.
Many claims for redress cannot be effectively brought. Many claims must be compromised on unfavourable terms because of the disadvantages citizens face in undertaking litigation against well-funded defendants.
This “legal injustice” is but an aspect of social or economic injustice. We are accustomed to understanding that social and economic injustice does not get addressed effectively without political pressure for change.
We recognize in our democracy, that political issues are everyone’s legitimate concern. We must extend that recognition to issues of legal injustice. Reforms to our court process are not just the business of lawyers and judges, who after all are not themselves, the ones adversely affected by this problem.
Filed in: Resources