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| Marcel Strigberger |
I am talking about the civil justice system.
Common gripes are that it is adversarial, not affordable and above all, it takes years to get your day in court. Is this anything new?
When I started my civil litigation practice in the 1970s the complaints were similar. I would tell clients my hourly rate was $50 and some would hem and haw. I noted that inflation was high, citing the examples of having to pay $3,000 for my new first car, a Plymouth Duster, 50 cents for a gallon of gas and a recent increase to 19 cents for a single scoop of Baskin-Robbins ice cream. They still hemmed and hawed.
As for court delays, the 1970s here did not yet readily see pre-trial/resolution conferences or alternate dispute resolution processes such as mediation. Many more cases went to trial. At my initial meeting on a personal injury case, I would point out the window to an old maple tree, saying to my client, “Those leaves will fall off and regrow a few times before your case ever gets to trial.“
I now realize it may have rattled them a bit as my own patience is quite finite. I get annoyed when I bring home a rock-hard avocado and I have to wait three or four days for it to ripen.
The problems presumably are confined to the civil justice system per se, solicitor’s corporate/commercial work. I have yet to see a client say, “I needed a will. I had to wait three days to see my lawyer and another week or so until it was completed. The justice system is in shambles.”
Are we too litigious? Too many lawyers? Ontario, with a population of over 14 million, has about 55,000 lawyers. That’s one lawyer for every 254.5 people. (I guess two of those halves with a similar issue have to get together and see the same lawyer).
Japan, with a population of over 126 million, has approximately 40,000 lawyers. That’s one lawyer or “bengoshi” for every 3,150 people. (Even!)
I cannot speculate why this is but from my deep research (Wikipedia), it seems there is a cultural aversion in Japan to lawsuits. Historically Japanese customs instituted an avoidance of legal involvement as it disrupted harmony.
I can attest to this theory as I got sued once and when served with the claim, it certainly disrupted my previous harmonious state.
I note that Japan has over 60,000 people over the age of 100. Many reside in the fishing villages of Okinawa. Could it be that many lawyers or would-be lawyers decide on foregoing a legal career for a shot at longevity, opting for a career of catching mahi mahi? I will admit that while in practice this theory never crossed my mind.
Speaking of longevity, what are some of the notable causes of delays in getting a case to trial?
Shortage of judges? Lack of court space? Maybe. How about procedural hurdles? One is the jury system for civil cases. Eats up time, big time. Imagine something similar in medicine, where 12 lay people sit in the operating room and provide directions to the surgeon. I would sooner see doctors resorting to leeches.
Then there are other time-consuming procedural wrangles. I am not talking about the court registrar opening the session bellowing, “Oyez, oyez, oyez.” For example, I am not sure the public is impressed with displays of pomp and tradition such as judges and lawyers wearing robes or wigs. Nor would it help much if they cut it down to one oyez.
I am talking about the lengthy delays suffered in moving a case forward given the rules of discovery, production of documents, etc. You just hope opposing counsel will comply with the rules and disclose. But if they decide to play hardball, the adversarial element rears its nasty head and the parties become more polarized. Which gets me back to Japan.
There is no automatic right there to disclosure. If you really need some information, you have to ask the court to order the opponent to disclose it. However, it might be awkward to ask for something you don’t know exists.
Of interest also is that there is no provision for the courts to award the successful side legal costs. This gap in jurisdiction might certainly discourage that fishing expedition (the proverbial one, not the one for mahi mahi)).
Another problem we see everywhere is the frivolous case. These are numerous and they must impact the court resources. I recall that case where a customer sued a dry cleaner in Washington for US$54 million following the disappearance of his pair of pants. Fortunately for the dry cleaner the action was dismissed. But I am sure the case must have thrown off his harmony. Here we had a litigant who tried to take a cleaner to the cleaners.
Is anything better?
With COVID-19 we have seen the courts resorting to virtual hearings. Of course there have been hitches and glitches, such as images freezing, voices going mute and occasionally, the background image of the ornate courtroom gave way to a glimpse of the judge’s real background.
I suppose given that everyone was likely at home, they could be a bit discretionary about their attire, especially if they were behind a desk. It reminds me of that Groucho Marx comment in the movie Duck Soup, where he discusses military strategies, saying, “Dig the trenches big enough, the soldiers won’t need pants.” That is almost a line that dry cleaner might have used in defence of that lawsuit.
I do not recommend during a virtual hearing that anybody ever ask a judge for disclosure about that one.
Will increased use of technology help the situation? It is a good start.
And so, is the system broke? It ain’t perfect. But as my favourite philosopher Yogi Berra said, “if the world were perfect, it wouldn’t be.”
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available in paper and e-book versions where books are sold. Visit www.marcelshumour.com. Follow him @MarcelsHumour.
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