Civil and Criminal Justice – Political Interference by Governments and the Senior Judiciary

 

When politics enters the courtroom, then though the other doors exits justice.

Adam Michnik, Polish Intellectual

November 7-8 2009

1. Introduction

This posting deals with the issue of how governments and the senior judiciary politically interfere with the course of justice in the trial courts. The following represent four different situations where goverement and ssenior political beliefs affected the course of justice.

21. The rough upper limit of personal injury damages

A posting of 6 December 2007 discussed the 1978 reasons of the Supreme Court of Canada (the SCC). They set a rough upper limit of damages of $100,000 for three plaintiffs who suffered catastrophic injuries caused by the defendants’ negligence.

Without mentioning any studies or referring to any trial evidence, the SCC based its decision on unproven facts stating that:

• 1. large awards of general damages are a "social burden" on society;
• 2. the area is open to wildly excessive claims;
• 3. awards in the United States have soared to dramatically high levels in recent year.

   The SCC is an appellate court. It does not see and hear witnesses testify. Therefore, it cannot find facts. It must reach a decision based on the facts found by the trial judge or jury. Then and now, common and statute law states that the amount of damages is a "question of fact." The SCC ignored this law in its rush to judgment. Had trial judges written such a decision they would have been severely criticized by the appellate courts for their lack of scholarship and relying on their private political prejudices. The allegation of soaring general damage awards in the U.S. has no foundation in fact. In 1978 the average for general damage awards was around $5,000.

   The $100,000 figure adjusted for inflation represents the maximum any plaintiff may recover for pain and suffering. Those with less severe injuries have their awards scaled downwards to reflect the $100,000 maximum.

   The 1978 decision of the SCC brought judicial politics into the courtroom. When it did, justice went out the back door. Since 1978, hundreds of thousands of injured plaintiffs have been deprived of a reasonable award of damages by the SCC political ruling.

3. B.C. Government civil procedural rules and tariffs of fees

   B.C. Provincial government cabinet ministers (politicians) enact the rules of court for the Supreme Court of British Columbia. To the best of my knowledge, when the Cabinet met to approve the new Rules effective 2010, the Attorney General was present to support his proposal. Those who did not agree with many of the rules and the failure of the AG to examine other jurisdictions were not invited. Politics entered the Cabinet room and justice exited another door

   The B.C. Cabinet also set the tariff of filing fees, hearing fees and jury fees that B.C. litigants must pay to access the civil justice system. For example, a 10 day civil jury trial costs the loser about $10,540. Similar fees in Seattle’s Superior Court would be about $480. The B.C. Attorney General’s office describes the B.C. fees as "Affordable" justice.

   The Lord Chief Justice of England recently said: "... there will be mayhem if ordinary members of the public are priced out of the civil court system ... access to civil justice is a fundamental principle of society and if denied people could resort to a brick through windows or worse. If changes are not made, then only the wealthy or big corporations will be able to take action and that is not acceptable."

   By their indifference to the civil justice system, B.C. politicians have made the civil justice system so expensive that they pushed justice out the back door of the courtrooms.

4. Charter of Rights issues

  In 1982, the British government amended our Constitution by adding a Charter of Rights and Freedoms. It had the effect of turning judges into politicians where there was a Charter issue.

   On the one hand the Charter was a noble idea because it tended to restrain law makers from enacting legislation that interfered with the normal rights of Canadians. On the down side, it turned judges into politicians. The ultimate decision maker on Charter issues is the SCC. Its political views might be quite different from those of the lower courts.

   Often, the political application of a Charter right pushes justice out the backdoor of the courtroom when judicial decisions are reached based on judges’ political preferences.

5. Criminal law – time from arrest to trial

   In the infamous 1990 criminal case of R. v. Askov the SCC applied political guesswork when reaching its decision. The Charter says any person charged with an offence has the right to be tried within a reasonable time. The issue in Askov was what is a reasonable time?

   The SCC decided that a reasonable time limit was around 18 months from the time of arrest. It did not commission any studies to ascertain the state of the case processing systems in provincial criminal trial courts across Canada. The 18 month limitation was a political figure snatched out of thin air.

   It turned out that thousands of cases across Canada had not gotten to trial within that 18 month deadline. They had to be dismissed. Defendants did not have to face justice: victims were denied the justice that many deserved.

   This is one more example of private judicial politics entering the courtroom and justice exiting through the other door.

Bottom Line:

• To bring consistency in damage awards, other jurisdictions allow trial judges to add or decrease the amount of any jury award. That decision is subject to appeal. This assists the parties in reaching a settlement and avoiding the costs of an appeal and a new trial.
• Before ordering a new trial on the issue of damages, the test in the appellate courts should be whether the award was a miscarriage of justice: a grossly unfair amount; either too high or too low
• To provide B.C. litigants with access to the civil justice system the fee schedule should be based on the 1960 schedule adjusted for inflation.
• Most Charter issues should only be decided on studies and research papers, not on personal judicial political leanings
• American criminal courts have case disposition standards of resolving 90% of the criminal cases within 120 days or fewer after arrest; 98% within 180 days or fewer and 100% within 356 days or fewer. Canadian courts have no standards. A rough guess is that most Canadian criminal jury cases are resolved within three to five years from the time of arrest. Canada should adopt the American standards.

17 November 2009

 

 

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BRITISH COLUMBIA RULES OF COURT, 2010 – COST AND EFFECTIVENESS

1. Introduction

   B.C. government rule makers persuaded the B.C. Cabinet to enact Civil Rules of Court for the Supreme Court of British Columbia effective 1 July 2010.

http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilRules07-07-09.pdf

   They are a modest improvement over earlier drafts but still reflect the heavy hand of provincial bureaucrats. Several visitors to this site rightly mentioned how complicated and expensive these rules will be for the average litigant. That appears to be the case.

2. Proportionality – May 2008 Rules 4-1 to 4-5

    The theme of the original drafts ending on 15 May 2008 was to stop almost all proceedings at the beginning of an action by condemning the parties to attend a proportionality or Case Planning Conference. It was a thinly disguised government proposal designed to ration justice for those claims deemed unworthy of equal justice.

http://bcjusticereviewforum.ca/civilrules/downloads/CivilRules_ConceptDraft_May2008.pdf

   Because of the organized Bar’s rejection of the idea, a Case Planning Conference or proportionality hearing is no longer compulsory; Rule 5-1(1) of the 2010 Rules.

3. DEPOSTION OF WITNESSES – RULE 7-5, 2010 Rules

   Instead of allowing the parties to depose or examine witnesses before trial if they so chose, the 2010 Rules have elaborate and costly provisions requiring them to apply for a court order to accomplish the same thing. An application to obtain such an order probably will cost each litigant about $3,000 to $5,000 in legal fees.

   Why should the parties who cannot afford these costs have to wait for the trial when the witness then discloses a vital ingredient that could have resulted in a settlement without a trial?

   American litigants do not have to go through this costly bureaucratic exercise. Their lawyers do it without a court order. Where are the B.C. government research papers proving that such orders are needed? Is this in keeping with the government’s promise of "Effective and Affordable Justice?"

4. Civil jury trials – Rule 12-6 – 2010 Rules

   B.C. adopted the 1883 English Rules in 1893. They imposed severe restrictions on the right of litigants to a jury trial because of lack of juror literarcy. They seem based upon the lack of educational standards at the time. For example, in 1876 England, 16% of men and 22% of women could not sign their name with a mark. Apparently, it was thought that the average juror could not understand complicated medical and scientific terms or issues of a complex character. These same provisions are in the new 2010 Rules.

   But today, many jurors have university degrees or equivalent and are quite able to understand these matters. Once more, there are no published B.C. government research papers justifying the continuation of such antiquated prejudices in its 2010 Rules.

   At the very least, the bureaucracy could have reduced the number of jurors from eight to six as it is in most North American jurisdictions. Apart from saving the parties from cost of the government’s exorbitant hearing and jury fees, a six person jury would deliver justice of as good a quality as could be done by an eight person jury. Again, no research papers.

5. Trial Management Conference - Rule 12-2, 2010 Rules

   At least 28 days before the trial date, lawyers and the parties themselves must attend a Trial Management Conference (TMC) before a judge or master. Most of the time, it will be held before a judge. Even if it is held before a master, the logistics will be challenging.

   B.C. courthouses were not designed for conducting such Conferences. Judges Chambers or offices cannot accommodate more than two or three other persons, say two lawyers and a Court Clerk. If the litigants must attend, there is no room. So, most of the TMCs must be held in a courtroom. Because these will be occupied with trials, the TMC litigants and their lawyers must come back at some future time when the same thing may happen again; all at great cost in legal fees to the litigants.

   To avoid having lawyers and litigants standing around for hours on end waiting for a TMC, it is likely the Registry will only schedule about two or three TMCs a week.

   At the TMC, the judge must hear submissions from counsel or the lay litigants on about 19 different issues such as "a plan on how the trial will be conducted." Considering all these 19 issues and resolving them in one meeting could take days of discussion particularly if there are numerous parties. The time spent by lawyers preparing for and attending at a TMC will cost litigants around $250.00 to $350.00 per hour.

   To do a decent job judges will have to prepare a written decision setting out their conclusions on all the issues argued before them at the TMC. Conducting other trials and delivering judgments on them could easily delay the delivery of a TMC decision for many months.

   The historical time from filing to trial in the Supreme Court of B.C. (SCBC) is three to five years. Under the 2010 Rules litigants cannot get a firm trial date until a TMC order is made. Delays caused by the TMCs could easily delay trials on the waiting list up to five to seven years or more from filing.

   The B.C. government calls this "Effective and Affordable Justice." As with other B.C. 2010 government Rule’s initiatives there are no published research papers on these issues.

6. B.C. Attorney-General’s Report 2009

   Recently, the Attorney-General published a document titled "Annual Service Plan Report."http://www.bcbudget.gov.bc.ca/Annual_Reports/2008_2009/ag/ag.pdf.

  At page 17, the Attorney General’s Department set out the public’s perceptions of the civil justice system. The government’s goal to achieve a satisfactory public perception of the civil justice system was set at 12%. In 2008/2009 it met that 12% goal. Its goal for achieving a public perception of ensuring access to the civil justice system for all parties was set at 26%. In 2008/2009 the public perception on that issue was only 23%.

   Setting its own expectations at such a low standard of relieves it from providing the public with a modern and efficient civil justice system. Most citizens would expect the government to do far better.

   For providing justice quickly and ensuring access to justice to all parties, the public perception standards should be set at 70% to 80%. The government should then strive to meet that perception. There are many ways of raising the public’s perception of the civil justice system as I have recommended in other postings but the government won’t even debate them.　

Bottom Line:

1. After ignoring the plight of B.C. civil justice litigants over the last 50 or so years it is a shame that the government’s 2010 Rules will cost them more and delay their access to the civil justice system.

2. The lack of government scholarship, published research papers justifying its many new costly procedures, and its failure to reform outdated Rules sadly reveals its complete indifference to modernizing B.C’s. civil justice system.

9 September 2009

CIVIL JUSTICE REFORM – RULES OF COURT – PROPORTIONALITY

Everyone knows … that for the ordinary citizen unqualified for Legal Aid

a lawsuit is quite out of the question

Lord Devlin

1. Introduction

   Visitors to this site will find many postings that illustrate the failure of the B.C. government to enact modern civil rules of court for the Supreme Court of B.C.  Its long awaited initiative was the first major overhaul of the 1883 English rules it previously enacted for the Supreme Court of B.C. in 1893. After spending a few short “research” days in England, it decided to impose on B.C. litigants new English Rules based on the questionable concept of “proportionality.”
   The B.C. Trial Lawyers Association and the B.C. Law Society did not approve the proportionality idea, nor did any local Bar Association to my knowledge. Only one judge of the 100 or so B.C. Supreme Court judges spoke publicly in favour of the idea. Despite this lack of support on 7 July 2009 the B.C. government announced that the rules it wants will come into force on 1 July 2010.
   These final rules are supposedly published on the government’s website at: http://www.ag.gov.bc.ca/justice-reform-initiatives/publications/pdf/CivilRules07-07-09.pdf.   Unfortunately, the site is not available because: ”files are damaged cannot be repaired.” Hence, the following comments depend upon information acquired from recent press releases.
   Recent press releases indicate that the fuzzy concept of proportionality would only be voluntary and not mandatory as it consistently proposed. That is a step forward. Apart from this issue and a few other minor changes the new Rules will be little different from the old 1883 Rules.

2. Proportionality

    The B.C. government’s proposed new rules used the meaningless word “proportionality” as its theme. Apparently, the government expected judges to ration justice at the earliest stage of the litigation by denying litigants with minor claims the full right to certain discovery processes.  The underlying purpose was to prevent as many cases as possible from going to trial.
   At the beginning of any lawsuit the issues are not clearly defined. What may look like an insignificant claim when the parties file their initial pleadings can blossom into a substantial dispute involving hundreds of thousands of dollars. The opposite is also true. 

3. The English civil justice system and “proportionality” 

    In 1893, the B.C. system of justice was similar to the English system. Over time they drew further apart. England always had a divided Bar. Before aggrieved litigants can recover judicial compensation for a wrong done to them they must first see a solicitor. After that, the solicitor prepares the case for trial and employs a barrister to actually try the case. 
   The apparent reason for England instituting the concept of proportionality was because the average citizen could not pay for the cost or employing a barrister or pay the costs of the defendant if the plaintiff lost. It was thought that early intervention by the court would help the parties settle their differences without having a full scale and ruinously expensive trial.
   Here is an example of English barrister’s fees taken from a 24 August 2009 posting on the web. It reveals the briefing and refresher (daily) fee for four randomly selected trial barristers in Legal Aid cases:
   “The following table lists how much was paid by way of brief fees and refresher fees to barristers that were paid a brief fee in the action.
£
Barrister                 Brief Fee, Refresher
Lord Brennan Q.C.  250,000, 97,500
Robin Oppenheim   134,500, 58,000
William Edis             114,500, 54,750
Richard Hermer       104,500, 40,000

   Other barristers were also paid for work on the case but they were not paid brief fees or refresher fees and did not take part in the trial.” http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061101/text/61101w0003.htm
    For a five day, English plaintiffs in motor vehicle accidents involving damages of about $100,000 (Cdn.) Legal Aid would have to pay a top barrister around $370,000 (Cdn.). Often senior barristers insist on employing a junior. Add another $250,000 for an approximate total of $620,000. These are approximate figures for the English system. It has many unwritten practices that may not apply in every instance.
    Assuming the amount of these Legal Aid fees are reasonably close to barristers’ fees in a non-Legal Aid civil action, few English litigants could afford the cost of pursuing a civil trial. If they lost, they would not only have to pay their own barristers and solicitor, they would have to pay the fees for the defendant’s barristers and solicitor. 
   In an article written by Professor Herbert M. Kritizer of the University of Wisconsin and published n the ABA Journal in November 1992, Vol. 78, pp. 54-58, he compares the English system of fees and costs with those in American courts. There might be changes since then but probably they are not that significant.
http://users.polisci.wisc.edu/kritzer/research/law_misc/engrule.htm
    Quoting from Lord Devlin, Professor Kritzer says “Everyone knows … that for the ordinary citizen unqualified for Legal Aid a lawsuit is quite out of the question.”
   Professor Kritzer found that in a 1986 English study, plaintiffs in civil litigation avoided the risk of bankruptcy using at least two main aids. First, if they had few means or income, Legal Aid paid part of their costs. An estimated 28 percent of personal injury plaintiffs received legal aid. Even if they lost, they did not have to pay the costs that institutional defendants incurred in a similar action.
   Second, English plaintiffs who are members of a trade union do not have to pay their lawyers in a civil action. About 29% of accident cases in England are pursued by solicitors retained by unions.
    A mid-1980 study of settlement negotiations in 220 High Court cases found that defendants made a settlement offer to plaintiffs in just 53 percent of privately funded litigation. This compares to 66% of litigants funded by Legal Aid and 90% of cases financed by unions.

4. The Canadian civil justice system

   Canadian plaintiff’s lawyers may enter into a contingency agreement with their clients where plaintiffs pay their successful lawyers about one-third of the amount recovered from the defendants. But if plaintiffs loose at trial usually they do not have to pay their own lawyer any fees. However, they must pay the winner’s costs calculated from a published scale set by the government.
    In a B.C. accident case where a plaintiff recovers $100,000 in damages there is usually a contingency agreement where the plaintiff’s lawyer receives about one-third of the award or $33,000. If not successful, the B.C. plaintiff does not have to pay his or her lawyer anything since payment was “contingent” upon success.
    These figures compare with the English barrister’s fee where plaintiffs succeed in recovering $100,000. Since there are no contingency fees, English plaintiffs must pay their own barristers a briefing fee, a refresher fee and perhaps a junior’s fee of about $620,000. If not successful the English plaintiff would also have to pay the defendant’s barristers’ fees of $620,000 plus the defendants out of pocket expenses and the defendant’s own solicitors fees.

5. The American civil justice system

    America’s civil justice system is quite different from the English and Canadian systems. It has some similarities to the B.C. system since it does not have a divided Bar.
   However, unlike England and B.C., successful plaintiffs and defendants in an American civil action cannot recover from losers any fees and disbursements the winners had to pay their lawyers.  At most losers might have to pay winners the court filing fees and the sheriffs’ fees. Similar to B.C., plaintiffs do not have to pay their lawyers if the plaintiff loses. Using contingency fee agreements, they only have to pay a portion of their recovery to their lawyer if they win.

Bottom line:

1. Proportionality is an English invention designed to compel average litigants to settle without going to trial. It has no place in B.C. law where circumstances are quite different.
2. A real issue the B.C. government should have considered is whether the idea of loser pay costs should be abandoned thus allowing B.C. litigants greater access to a trial.
25 August 2009

CIVIL JUSTICE SYSTEM – MODERNIZING CANADIAN TRIAL COURT DECISION MAKING

And it must be considered that nothing is more difficult to transact ,nor more dubious to succeed, nor more dangerous to manage, than to make oneself chief to introduce new orders. Because the introducer has for enemies all those whom the old orders benefit, and has for lukewarm defenders all those who might benefit from the new order.

                                                                                                Machiavelli

                                                                                                 The Prince

 

1. Introduction 

   An article in the 4 April 2009 edition of the Economist caught my eye. It bemoans the fact that Canada’s federal/provincial criminal justice system is as “shockingly slow as many in Latin America.” The same may be true with respect to provincial civil justice systems.
   In a previous posting dated 15 December 2008, I discussed the inordinate time delays that arise after complet ion of a non-jury criminal trial. At that time trials judges must begin writing reasons in order to meet Canadi an appellate courts’ standards of perfection.
  This posting will compare the standards that American trial court judges must meet when they decide guilt or innocence in a judge alone or Bench trial. It will also review the standards that Canadian trial judges must meet in providing appellate courts with written reasons.
  Despite substantial research on the American judge alone trial system, I admit there may be instances where I may have missed something.

CIVIL TRIAL FEES – B.C. GOVERNMENTS' WAR ON JUSTICE

To no one will we sell, to no one will we refuse or delay,
right or justice
                                                        Magna Carta
                                             1215

1. Introduction

   Numerous earlier postings on this site discuss the outrageously high sheriff’s fees, jurors’ fees and hearing fees that litigants must pay the B.C. government in order to access the B.C. civil justice system.
   Civil justice systems allow people to settle peacefully disputes between themselves. Otherwise, they could resort to violence. Foreign investors often factor into their investment considerations the efficiency and fairness of these systems as one of the costs of doing business.
   Sadly, successive B.C. government leaders ignore these features. They tend to look upon B.C.’s system as a “cash grab” source of money. In a democracy, criminal and civil justice systems are not designed for economic self sufficiency.  They are a public service. Legislators as law makers do not charge the public fees to access their services. Why should the public have to pay fees to access the services of civil court judges as the laws’ interpreters?
   This posting reveals that B.C. governments’ often use unlawful means to extract fees from civil litigants who seek access to justice.

COURT FEES – CIVIL JURIES – DAMAGES – QUEEN OF THE NORTH

To no one will we sell, to no one will we delay right or justice

   King John,  Magna Carta
   1215

1. Introduction

   While sailing from Prince Rupert to Port Hardy on Vancouver Island on the night of 22 March 2006, the Queen of the North belonging to the B.C. Ferry Corporation went off course, struck Gil Island and sank
   Mr. Gerald Foisey was a passenger on the vessel but did not survive the sinking. His two daughters brought an action for damages in the Supreme Court of B.C. (SCBC) against the Corporation and some of its ship’s officers. As daughters of the survivors they are entitled to a limited amount of damages under provincial legislation.
   Counsel for the plaintiff said that the daughters could not afford to have a jury trial for the purpose of assessing damages since the B.C. government’s hearing and jury fees were so excessive. These were estimated at $15,000 for a judge hearing the trial and $25,000 for jury fees totaling $40,000.
   Similar fee items charged in other jurisdictions are estimated as follows: Alberta: $800; Ontario: $645, and Washington State: $ 480.00.

CIVIL JUSTICE REFORM – RULES OF COURT – EXPERT EVIDENCE

1. Introduction

  Rules 8-3 to 8-5 in the B.C. executive’s proposed 2008 Rules of Court describe; the process for the Appointment of Joint Experts by the parties; the Appointment of Own Experts; and the Court Appointment of Experts. Here is the URL address for the Rules. Go to page 89.
http://bcjusticereviewforum.ca/civilrules/downloads/CivilRules_ConceptDraft_May2008.pdf
  This posting briefly examines these Rules, the English Lord Woolf’s Rules and the Washington State Rules dealing with expert evidence.

2. Executive’s proposed 2008 Rules governing experts

   Presently, amendments to the 1883 Rules dealing with expert evidence seem to work reasonably well. However, they do not provide for the appointment of joint experts by the parties – Rule 8-3 - or the appointment of similar experts by the court – Rule 8-5
  All three proposed new Rules contain controversial provisions. They probably will attract a great deal of unproductive pre-trial legal work over such new matters as drafting joint expert agreements, attending judicial conferences and bringing court applications over the enforcement of these Rules.
  They will add substantially to the cost of litigation with no proven benefits to the litigants. There is no research proving that court appointed experts deliver a better quality of justice than experts selected by each side.

3. Appointment of joint experts selected by English judges 

  This idea came to the B.C. executive after reviewing Lord Woolf’s Rules. However, there are a number of practical and subtle differences between the English/Wales judicial systems and B.C.’s system. 
  First, England/Wales have a divided Bar. English Rules do not allow for the pre-trial discovery of parties or lay and expert witnesses. The reason for this seems to occur because only English/Wales Barristers can examine witnesses orally. Solicitors cannot. It would be very expensive if English/Wales litigants had to hire Barristers for these pre-trial procedures. On the other hand, B.C. has a unified Bar so we don’t have that impediment.
  Second, England/Wales no longer have civil jury trials except for defamation actions. They lose the benefit of well educated jurors who can sometimes better understand expert testimony than can judges.
   Third, is the different way that England/Wales judges treat awards for non-pecuniary damages. At common law an award of any type of damages was always a question of fact not one of law. B.C. and most other provinces’ legislation codify this principle in their legislation.
   But in England/Wales, the Judicial Studies Board publishes a book containing high and low award figures for most types of personal injuries. While not legally binding, on trial judges they must be very persuasive since from time to time the English Court of Appeal reviews them for their adequacy.
http://www.jsboard.co.uk/publications/pdfs/14_damages.pdf
   The book is not available on line but it can be purchased at the following URL address:
http://www.eruditor.com/books/item/9780199548583.html.en
   Arguably, there will be situations where the expert evidence is overwhelmingly in favour of one side or the other but the judge will feel obliged to keep the award within the scale. Hence expert evidence may not have the same impact on the case as it might in B.C., particularly with a jury.
   With respect to court appointed experts here is some information I gathered from English judges:
   • Two commercial organizations solicit applications from professionals to be considered for appointment as court experts.
   • Presumably, those organizations charge experts a fee for putting the experts’ names on their lists and that fee is passed along to the litigants.
   • Once the court gives the parties permission to appoint an expert, they choose one from these commercial lists or from any other source.
   • Trial judges reserve the right to refuse the selection if they think it is inappropriate.
   • If the parties cannot agree to a joint expert the court selects one based on that expert’s CV or on the judge’s previous satisfactory experience with that expert.
   • The parties pay the expert’s fee jointly in equal shares.
   • The amount of the fee is a matter for negotiation between the expert and the parties.
   • In the majority of cases the expert’s evidence is accepted by the judge.
   • Judges retain the right to disregard the expert’s evidence if they find it untrustworthy.
   • Most English judges and most Continental civil court judges like the idea of joint experts.
   These features differ from proposed B.C. Rule 8-5 – Court Appointed Experts. Instead of allowing B.C. counsel to negotiate the fee, B.C. judges will fix it themselves.

4. Washington State Rules – experts - depositions

   Here is the URL address for the Washington State Rules:
http://www.courts.wa.gov/court_rules/index.cfm
   The guiding discovery principle is expressed in these words: Parties to an action in Washington State may obtain discovery, not privileged, which is relevant to the subject matter involved in the pending action … Rule 26(b). That discovery includes the identity (name, address and telephone number) of every person likely to have relevant information. Experts fall within this category. Parties must also give information about the basis for the expected testimony of their expert trial witnesses.
   Discovery of trial experts normally begins with interrogatories. Consulting experts cannot be questioned. Parties may also depose – examine orally for discovery – each person whom any other party expects to call as an expert witness at trial: Rule 26(b)(5)(A)(i).
   The obvious benefits of the Washington State Rules over the English/Welsh/ B.C. Rules are:
   • Parties do not have to wait for the trial to see and hear their opponent’s experts or the court appointed experts testify under oath.
   • This avoids the expense of making a court application or attending a court conference for the purpose of getting a judge to select an expert.
   • Pre-trial settlements have an elevated and fairer quality after the pre-trial deposition of experts since each side is better informed about the strength or weaknesses of the experts’ evidence.

Bottom Line:

1. There is no need for the executive’s Rule 8-3, 8-4 and 8-5.
2. They just amount to additional costs to the litigants with no proven benefit.
3. In their place, parties should have the right to depose or examine one another’s experts before trial.

16 October 2008 (revised 22 October 2008).

CIVIL JUSTICE REFORM – RULES – OBJECTIVE RESEARCH

To go ahead with reform proposals that are not
grounded on objective knowledge and
real understanding of the systems …
is not a serious way to proceed.

      Professor Michael Zander (Ret.)
      London School of Economics
      1997. 

Introduction

   Rule makers in B.C., Alberta and Ontario are hard at work trying to invent a better system for processing civil cases through their superior courts. Most, if not all, seem to do it in the old fashioned Canadian way.
  First, they discuss one another’s techniques by exchanging research papers. Then they may communicate with one another via email or telephone. Occasionally, their papers will footnote papers written by an English or Australian researcher. Almost never will they travel to England, America or Australia and conduct objective research of these other systems in action.
   Historically, most provincial governments and the federal government have shown little enthusiasm for law and court reform: Less so when it comes to spending public money on travel for researchers to conduct objective research. This posting discusses Canada’s unsatisfactory reform systems and recommends a more comprehensive approach.

2. The current fad – “proportionality”

  It seems that B.C., Alberta and Ontario civil rules reformers enthusiastically bought into the superficially attractive buzz word “proportionality.” To many it means rationing justice. Prominent litigants likely will get full access to the civil justice system. Most others will not. Its main purpose is to reduce the few number of trials that now take place.
  In a previous posting dated 28 September 2008, I argued that the concept of proportionality probably is a non-starter. It discriminates between litigants and thus offends s. 15 of the Charter.

3. Objective Research – legal professionals

   As Professor Zander mentions above, objective research is vital before adopting any reform process from other jurisdictions. Without taking this step, the research is just one-third done. It means spending time observing a different system in action and talking to all the participants. Legally that converts into discussions with judges, lawyers, court administrators, academics, court clerks, Sheriff’s officers, etc. and watching them perform. Canadian civil and criminal justice reform projects seldom if ever carry out these necessary investigations. 
  Apparently three government officials from B.C. went to London in or around the early 2000s for three days. To do a half decent job they should have spent at least three months. They came back promoting Lord Woolf’s English case management rules as the answer for B.C.

4. Objective Research – other Canadian professionals

  Probably no other group of Canadian professionals such as doctors, engineers, architects, dentists, etc. would ever adopt new ideas from related professionals in other countries without first visiting those countries and examining how they work in practice. For example, engineers would want to examine first hand new techniques in building bridges. Doctors would want to examine first hand a new way of using a body scan machine. Neither would just rely on reading research papers.
  Nevertheless, most of the Canadian legal and governmental hierarchy seem content to rely only on the written word and ignore reality. On paper, a process might look attractive. In practice, it may not fit Canadian circumstances and turn out to be a disaster.
  Even if it does not work, experience proves that the authority which initially authored the disaster will just dig a deeper hole blaming the failure on others.

5. Examples of Objective Law Reform Research

  Here are a few examples of this kind of research:

• Australia – New South Wales Law Reform Commission – Deposing Witnesses Before Trial - 1978
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ConP5CHP5
• Australian Law Reform Commission –Managing Justice – Review of the federal justice systems – a four year inquiry – 31 December 1999
http://www.austlii.edu.au/au/other/alrc/publications/reports/89/Exesum.html#Heading7

• United States - Rand Report – Evaluation of Judicial Case Management Under the Civil Justice Reform Act 1990 – Federal District Courts - 1995
http://www.rand.org/pubs/monograph_reports/2007/MR802.pdf

6. Rule reforms - government financial support

   Governments pretend they are committed to change. Yet, they are notorious for their failure to finance change in the amount needed.
  This may be the scenario if the executive imposes its new Rules on the people of British Columbia. Judges and lawyers will be unable to fairly and efficiently administer justice due to the executive branch’s complete lack of objective research and the almost certain need for additional administrative and human resources.
  Governments rarely admit fault. When the new Rules fail in their practical application, the executive will do one of two things. It will unfairly blame the judges and the lawyers who opposed the Rules. Or, it will say nothing and allow judges and lawyers to unfairly take the brunt of public criticism.

6. Examples of failed objective research

  Because of the B.C. executive’s failure to conduct any objective research, its 2008 proposed Rules will not meet the needs of British Columbians. Here is a partial list of objective research failures:
• Failure to investigate the advantages of the Individual Calendar System.
• Failure to investigate the advantages of deposing witnesses before trial.
• Failure to investigate and recommend civil jury trial rule reform since the present rules are based on England’s 1883 literacy levels.
• Failure to comparatively justify the government’s punitive filing and hearing fees that are 300% higher than the rate of inflation since 1960.
• Failure to comparatively justify its arbitrary sales tax on lawyers’ legal bills to their clients.
• Failure to investigate the need for party and party costs.
• Failure to investigate the need for lengthy trial judge’s reasons.
• Failure to investigate the need for a new civil justice Evidence Code.
• Failure to investigate the advantages of a decentralized court system that would allow judges in each judicial district to govern themselves and make Local Rules to meet the needs of their local communities.
• Failure to recommend Case Disposition standards.
• Failure to correct the Rules on settlement offers that unfairly benefit defendants over plaintiffs.
• Etc.

Bottom Line:
1. Without doing the necessary objective research the executive’s 2008 Rules lack the authority for the system it recommends.
2. At the very least, the executive’s 2008 Rules should be confined to a four year pilot project in one provincial judicial district. 
8 October 2008

CIVIL JUSTICE REFORM – LORD WOOLF’S RULES – THE WRONG MODEL

1.  Introduction

   British Columbia’s executive branch Rule makers rely heavily on Lord Woolf’s 2004 English Rules as a precedent for their 2008 reform recommendations. Because the executive did little objective research, the practical advantages of copying the new English Rules remain unconvincing.
   Here is a brief summary of how the English judicial system works and why it is not a useful model for British Columbia. It is based on information I recently received from an English judge.

CIVIL JUSTICE REFORM – RULES OF COURT - PROPORTIONALITY - A SECTION 15 CHARTER BREACH

                What has destroyed liberty and the rights of man
           in every government which has ever existed under the sun?
             The generalizing & concentrating all cares and powers
                             into one body.

                                                                  Thomas Jefferson
                                                                  1743-1826
1. Introduction

   British Columbia’s executive branch of government has sole authority to enact and amend the rules of court for the B.C. Supreme Court. As the above quote mentions it then has the power to affect the liberty and rights of every B.C. litigant. These powers can only be challenged in a court of law.
   This posting discusses one way the courts may restrain the executive’s abuse of those excessive powers by applying section 15 of the Charter of Rights and Freedoms (the Charter).