While some of these initiatives have certainly been helpful, I would propose something that is more radical — a reformation of the Rules of Civil Procedure, starting with the strategic removal of motions with a better tool for triage. (I note that this article deals mainly with civil litigation and does not deal with the family or criminal contexts).
In the grand scheme of procedural reform, motions should be the first to be changed because of the delay, cost and ultimate unfairness they create in our system.
Motions have unfortunately become an integral part of our civil litigation process. While they were originally intended to serve a fair trial, they have become ripe for abuse creating the opposite result. The constant barrage of motions has led to the congested docket, in a large part causing delays that undermine the very fairness the legal system is meant to uphold. I first noticed this earlier on in my career, and I’m sure my colleagues would agree. I represented a client who paid a refundable deposit to acquire a commercial building but was not satisfied with diligence and requested their deposit back — the seller refused. A simple lawsuit to return refundable deposit money evolved into a motion to transfer the case to a different court and another motion to adjourn a third motion and a discussion of case law to discuss the philosophies of whether orders should be granted in each of these motions. As the costs and delays continued to mount, my incredulous client accepted 50 per cent of the deposit back as a settlement to move on, creating another individual who has lost faith in our justice system.
I’m certain lawyers and clients who are familiar with civil procedure have similar stories: parties who go bankrupt or pass away during the time it takes to get past the pleadings stage and many other matters left in limbo with the courts.
Many of the motions that are argued in courts today are junk that create delay and backlog. Of course, it could be argued that many of these motions are vital to a case — a motion to set aside default judgment because a party was not properly served does not create unnecessary delay — and the delay is justified. This might be true, but many motions including this example do not need to be handled by a set hearing date by the few judges we have on the bench, but can be triaged by the very clerks who noted the party in default in the first place.
The other issue with motions is the costs to the client. Litigation is an expensive endeavour to clients and motion materials are very time-consuming to prepare between affidavits, exhibits, factums — all to argue a point that most of the time may not even be significant in the grand scheme of the case. The prohibitive costs and time required for these legal proceedings discourage many from seeking recourse and many lawyers are paid for the time without the client’s feeling they are getting the requisite service.
Some may argue that regardless of whether motions are argued, litigation will always be an expensive process. Which is why the lawyer’s Rules of Professional Conduct encourage lawyers to promote settlement and deter litigation. However, clients should be encouraged to settle as a solution to their issue, not because the alternative litigation process is too costly, and not because the alternative litigation process is too costly and inefficient. Also, in many cases, the expenditure on motions is unnecessary and if it can be eliminated, it would be a worthwhile goal. Simply modifying the way a lawyer can get off record from their client rather than by a motion will save significant costs to all involved.
The cost and delay leads to a general unfairness that negatively impacts public opinion of the justice system. Defending parties simply ignore deadlines, orders and rules which force parties to spend money to bring motions, so the plaintiff abandons their case. In addition, public perception is further harmed with the creation of a parallel universe where parties are arguing about one thing (a refundable deposit) while paying lawyers and the court to argue something else no one is concerned with (should this be heard in Toronto or Ottawa).
You might ask: it’s all well and good to get rid of motions but how do we deal with these interim issues? What happens when crucial undertakings are not provided, or a party has not been properly served? This involves a larger discussion on reforming civil process entirely but in any business the concept of delegation is crucial to handling growth. The current legal system has made attempts at delegation with the creation of masters and written motions but does not go far enough in removing the sheer quantity of matters away from judges. With all the technology we have today, it should not be a large exercise to gather all motions heard and determine what percentage of motions are being heard by subject (for example, 50 per cent of motions are related to discovery and exchange of documents).
Appointed judges (like presidents in a company) should only be required to rule on the final merits of a claim. Everything else can be delegated and processed in a more streamlined way. One example is by triage — creating case managers who review pleadings early on and who assist in streamlining a case. These managers do not need to be judges; they can simply be clerks who act as project managers who follow the rules and deadlines and refer matters to judges for substantive review. These positions would be held with some prestige because they are getting real experience making judgments. If a matter is ripe for summary judgment, it can be stated at the pleadings and referred to a judge for ruling — if he requires more evidence, it goes back to the case manager. It is not perfect, but the benefits of this approach rather than motions will preserve judicial resources and create more efficiency, lower costs and improved public perception in the legal system.
We lawyers need to get real about improving delays in our legal system and the small changes here and there have not been making enough of a difference. It’s time for larger reform and that starts with the removal of motions in our court system.
Jacob Murad is the managing partner and general counsel to BlueStar Equity, a private equity family office in Toronto, as well as president of KPA Lawyers Professional Corporation, a full service law firm in Mississauga, Ont. He has served as general counsel and director for a large number of private companies throughout Canada and responsible for the negotiation of complex mergers and acquisitions across a variety of industries. He is a member of the Law Society of Ontario’s Coach and Mentor Roster. He can be reached at firstname.lastname@example.org.
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