LITIGATING: PANDEMICALLY SPEAKING

There is an old axiom, what does not kill you makes you stronger. Since finding ourselves litigating in a pandemic, I think the axiom should be changed to: what does not kill you makes you weaker for your next battle with the thing that “does not kill you”. There is a compound fatiguing effect that the pandemic has ground upon us.  

Previously I wrote about the importance of being decent to each other and how this is especially critical given the current state of our world. I believe there is a more selfish reason to be decent to each other; we are running out of time and all need each other healthy.  

Litigation like life has a certain energy and momentum, we rely on that energy and momentum to get things done. While we are frustrated sitting in traffic on a Friday afternoon, we understand that the energy of the community is driving us to our collective destination. We rely on each other to provide mutual breaks in traffic so as to avoid what can be dangerous situations. And when the energy is good, with the sun shining and our windows down, the drive home can be relaxing, efficient and safe despite taking a long time.

Prior to the pandemic our system of litigation was fraught with inequities and delay. We were routinely surprised by how long an average file took to resolve. The court system was labouring with understaffing, outdated technologies and massive user demand. The recent legislative amendments affecting rules of evidence, procedure and how trials are conducted did little to streamline the process. This coupled with the use of Juries in civil trials puts a major strain on our community and industry in handling civil disputes.

Despite the pre-pandemic situation, many people in the system did their best to move things along. Counsel would work together to book discoveries, motions and trial dates. If counsel were not being cooperative, access to judicial intervention was available in a number of ways which for the most part provided the Parties with enough “encouragement” to ensure the matters were processed in a reasonable manner. This did not mean it was easy for the Parties. The Parties still often did not understand how a trial could be booked a year away? Why would it take 6 months to obtain an expert report? Why was a discovery booked 4 months from now, could it not just be scheduled next week?

Prior to the pandemic I was a firm believer that the entire system of compensation for injured people needed a dramatic overhaul. In other entries I will discuss this further, however for the purpose of this Blog I want to briefly touch upon the Pandemic’s effect on our system. 

What we could not have realized before COVID was that our system, pre-pandemic as flawed as it was, was about to get infected. Post pandemic we are seeing trial dates set years in the future with no certainty when they will actually proceed. Motions and filings are difficult to accomplish. Assessment hearings are ground to a halt. Small claims courts were virtually shut-down for a year and as a result there is major access to justice issues which is particularly affecting lower income participants.   

We are seeing jury notices being struck in certain circumstances to allow Parties to proceed to a judge alone trial, but these situations are the exceptions rather than the rule. We are seeing lawyers routinely failing and/or being unable to answer calls and emails from colleagues and clients. We are seeing Parties using delays and system restraints to obfuscate their obligations.  COVID’s effect on our vulnerable system has produced further delay and significantly negatively affected injured persons.

In saying this, with great challenges come great opportunities. The opportunity we have now, is to work with each other in a direct, honest and meaningful way. Lawyers as Officers of the Court have never been tasked with so much responsibility. Lawyers must take the role as Officers of the Court to heart. We owe it to the Law Society, colleagues, the Court and profession at large to answer our emails, calls, along with promptly returning requests for scheduling and production of documents etc.  

While we may have little control over when our matter is assigned a court date, we must give our clients professional and clear communications about the state of their case and positions of each Party. We must empower our clients with knowledge and decision-making opportunities where available. 

I believe Mediation is now more important than ever. The courts are all but begging the Parties to resolve their claims without judicial intervention. There is a real community benefit of doing just that. I have always believed that Mediation can be successful without leading to an immediate resolution. There is a real power in understanding what and why an opposing Party is taking a position. With respectful honest and timely dialogue, we can accomplish so much to ease the burden the pandemic has ignited.