Archive for January, 2014

How Do You Fix the Legal System? Two Different Views

Tuesday, January 28th, 2014

I was in a mediation a couple of weeks ago with a very respected, recently retired commercial court judge. As commercial litigators like to do, we spent a few minutes shooting the breeze. Myself and one of the other lawyers are both arbitrators and the retired judge now does mediations and arbitrations as well. Our discussion quickly turned to an initiative that the other lawyer had started by which motions would be taken out of the court system and handled through private arbitration. The problem is that the system is too backlogged to deal with motions and some types of motions end up being too expensive to bother fighting over. The judge was keen to discuss this private arbitration process for motions because, in his words, the lawyers should be focusing on doing what they do best – trying cases. For him, that should be the focus of litigation – getting to trial faster and with less expense.

There is certainly a good argument to be made for streamlining the process and for moving on to trial and actually having the trial. After the mediation, I put the discussion in the back of my mind and really didn’t give it any further thought until I happened to read the Supreme Court of Canada’s recent decision in Hryniak. The opening words of the case set out that Madam Justice Karakatsanis (who wasn’t that long ago a trial judge in Ontario) has a different view of things. She wrote:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity.

Interestingly, both the retired commercial court judge and Madam Justice Karakatsanis are in agreement that the system isn’t working to its proper capacity and that there is a need for a “culture shift”. They also both agree that the system is bogged down by pre-trial motions and other procedures. More interestingly, however, is the divergence that one thinks the answer lies in speeding the way towards more trials while the other thinks that the answer lies in finding alternatives to trials. Which side is going to win the debate? Stay tuned. But I fear that this might end up like my dog chasing her tail – the final decision might just be the result of going around in circles until everyone’s too tired to care which side wins. In the short term, though, while everyone agrees that a culture shift is required, don’t expect much shifting since it’s harder to turn around a battleship than a speedboat – and the justice system has shown that it isn’t the speedboat.

Something to think about.


Why Don’t I Recommend on LinkedIn?

Sunday, January 5th, 2014

A question was asked of me by a friend the other day about why I hadn’t recommended him on LinkedIn when he had recommended me?  A very fair question and there was certainly no personal slight intended.

The problem is that the rules for conflicts of interest are not clear right now for arbitrators when it comes to social media relationships.  Clearly, if someone is my best friend and I am asked to be an arbitrator on his case there is a conflict of interest.  But what if I have “recommended” the person, or the person’s lawyer, or the person’s expert on LinkedIn?  Is that enough to show that I am somehow biased and either I should be removed as an arbitrator or (if the recommendation is found after the fact) any arbitral award that I render should be set aside because of bias?  Put simply, nobody knows the answer for certain.

The Supreme Court of Canada stated back in 1954 in a case called Szilard the general test for when there will be a “reasonable apprehension of bias” that is sufficient to remove an arbitrator:

It is the probability or the reasoned suspicion of biased appraisal and judgment, unintended though it may be, that defeats the adjudication at its threshold. Each party [to an arbitration], acting reasonably, is entitled to a sustained confidence in the independence of mind of those who are to sit in judgment on him and his affairs.

Especially so is this the case where he has agreed to the person selected.

It is one thing to know someone professionally and even to have a good rapport with that person.  But is it something else when the one person goes the extra step to make a recommendation of the other person?  At least an argument can be made that in going this extra step, the recommending person has indicated that he/she has a very favourable view of the person recommended such that, if that recommended person were to appear before the recommending person that the recommending person, as arbitrator, may have a natural preference for the recommended person and his/her position(s) in the arbitration.  Does that lead to a “reasonable apprehension of bias”?  Possibly.

And it is because of this very possibility that I have refrained from giving recommendations on LinkedIn.  It’s not that I do not want to give the recommendations – because I know many people very worthy of recommendation (which I would wholeheartedly give) – but until there is a bit more clarity in this area, I will have to keep my recommendations to myself.  So, please do not think less of me because I haven’t recommended you on LinkedIn.

[February 27, 2014: As an update to this decision, I recently learned of the decision of the California 2nd Appellate Decision in the case of Mt. Holyoke Homes v. Jeffer Mangels Butler & Mitchell (decided September 24, 2013 - no easy link to the case but can be found via a Google search and then going to the Court's web site to see a Word copy of the decision).  In that case, the arbitrator was a retired judge who had an online resume that was approximately a decade old and it included some potential references for the arbitrator.  One of the people listed was a partner in the defendant law firm - but the judge had simply put that partner's name on the resume as a potential person that people could contact and he hadn't even asked the partner if his name could be put as a reference.  Despite the facts that this reference was unsolicited and had been put on the resume approximately a decade before the arbitration and the arbitrator had had absolutely no communication with the defendant (or the partner) related to this matter, the Court still found that the arbitrator should have disclosed the reference on his resume and the failure to do so was sufficient to set aside the arbitral award.  This decision is being significantly criticized as setting the bar far too high - and I personally agree.  However, it is yet another illustration of why this area is a bit of a minefield right now.]

Something to think about.




My New Year’s Wish

Wednesday, January 1st, 2014

A new year and time for some reflection – and a bit of a rant (it’s been a while after all and the older I get the more these start to spring out of me).  I was thinking about it yesterday and my New Year’s wish is that everyone gets what they deserve.  I know that the typical New Year’s wish is that everyone has a happy, healthy and wealthy New Year but I’m going to break from that tradition this year.  I’m not sure if it’s a sense of justice that underlies my New Year’s wish – perhaps, but then this gets us into questions like “well, what, really, is ‘justice’?”  But in doing my job for all of these years, I’ve seen situations where the “bad guy” wins and the “good guy” loses.  I’ve seen situations where nobody is clearly the “bad guy” or the “good guy”.  I’ve even been fortunate in more than a few cases to have the “good guy” win.

What is clear, though, is that (for whatever reason – I’m not privy to the “grand plan”) God [fate, destiny, or whichever other deity or supernatural cause you may wish to subscribe to - for me it's God] lets the “bad guys” win sometimes and the “good guys” lose and/or suffer.  Are these the type of people that I would want to wish a happy and prosperous New Year – when that result would likely come as a result of some “good guy” suffering?  No, I don’t think so.  But are they people that I wish to have harm befall them?  No, that goes against my background also.  Similarly, though, if none of us is completely good or completely bad, then what becomes the dividing line between properly deciding whether someone should get wishes for a happy and prosperous New Year – at best it becomes an artificial demarcation line.

If I were younger, I’d probably accuse my position of being the “great cop out”, but as I grow older I have come to realize that there’s far less black and white and far more grey than previously imagined.  And so, I wish all of you a New Year that brings you exactly what you deserve.  If you truly are good, then I hope you get nothing but peace, prosperity and good will.  If you’re somewhere in the middle, then I hope you get a decent year with nothing terrible befalling you mixed in with good times.  And if you’re truly a “bad guy”, then I hope that in 2014 you get knocked around from pillar to post and forced to make amends to those you have harmed in the past.  As for me, well, we’ll see what 2014 brings me and hope that it turns out to be a peaceful and prosperous year.  And if it isn’t, then I hope that I am able to realize whatever were my mistakes, to repair any damage caused, and to prosper in the sense of learning and growing as a person.

OK, now that I’ve got that off of my chest, leave me alone, I’ve got a lot of beer to drink and Bowl games to watch on the TV for the rest of the day!

Something to think about.