Back in law school I had (and thankfully today still have) a very good friend and partner in the moot court competitions named Bryan Haynes. While Bryan and I were very much alike, his desire lay in practicing pure corporate / commercial law while I was happy to focus more on litigation. As the years went by, he practiced corporate / commercial law in Vancouver and then Calgary at the big law firms (he’s now a partner at Bennett Jones) while I focused on litigation with the big firms in Toronto. But that was about where our views on the practice of law ended and have remained divergent.
Bryan writes an article every month or so in Canadian Lawyer magazine. This month his article deals with a recent decision of the Supreme Court of Canada in a case involving a tender process in British Columbia where the plaintiff lost the contract to what turned out to be an ineligible bidder. The contract, however, said that no claims could be brought against the government that issued the call for tenders. The Supreme Court held that the parties could not have really thought that this meant that they would allow no claims for ineligible bidders to sneak in, make a bid and win. Bryan’s response to this result was one of displeasure and criticism and, to be honest, I share his view. I agree that the law of contract should be focused upon certainty in contractual terms and the ability of businesses to know what their contracts mean and to be able to rely upon their provisions.
While I agree wholeheartedly with Bryan and his views, though, I always have to view this and every other case through a certain context: the prism of litigation. I am asked on a daily basis: “Will we win?” And almost always my answer is something along the lines of “… it depends …” It depends on the judge – they are human after all. It depends on how the facts come out in evidence – it isn’t a matter of simply putting in the facts but how persuasively those facts are assembled and presented. Sometimes it depends on timing – for example, I once won a significant decision that appeared doomed to fail except a few days before the hearing the Court of Appeal set out new rules which completely supported my client and a “likely loser” suddenly turned into a “sure winner”. It depends on the law. But it also depends on the concept of equity. Put simply, equity is the all-powerful tool of the courts to determine that whatever the law says shouldn’t always be applied for reasons of fairness and justice. Does this mean that judges can run around making whatever decisions they simply feel like? No, there are definite rules and constraints within which equity is to be used.
The point of all of this is to say that there is no definite set of criteria to establish whether a case will win or lose. And while Bryan and all other commercial lawyers desperately search for certainty in contracts, the litigators all sit back and quietly smile and think “keep dreaming”. Over 95% of all lawsuits settle. Why? Because one side realizes that the other will win? If that’s the case then (not counting those who sue or fail to settle for purely non-legal reasons) there is usually little reason why a lawsuit would settle on the eve of trial as opposed to before the lawsuit even begins. Rather, in my opinion, one of the largest factors for lawsuits to settle – especially as one gets closer to a trial – is the inherent uncertainty of how the trial will end. If it was a foregone conclusion that one side would win, then that side would bring a summary judgment motion and there would not be a need for trial since judgment would be granted.
So, the next time you come to see me (or a fellow litigator) and say that you want to sue and then after giving all of the facts you ask whether you will win and the answer given to you is far from conclusive and lacks the certainty that a commercial lawyer would want, now you’ll know why. And, conversely, if you get close to trial and your lawyer gives you a statement of support that is full of certainty (“how can we not win?” / “the other side has no case” / “it’s like taking candy from a baby” / etc.), you might want to ask your lawyer why, if it’s such a good case and a clear winner, that there’s even a need for going to trial. Your lawyer may have a very good reason why that is the case, but, if nothing else, you should go into any lawsuit with the knowledge that the only certainty is that there is always some level of uncertainty.
Does that frustrate commercial lawyers like my friend Bryan? Sure it does. Does it frustrate our clients. Again, yes. But that’s why trials and lawsuits are more art than science. And maybe that’s why he has more hair than I do because he doesn’t tear his hair out worrying about how to “paint a masterpiece”
Something to think about.