Time was once a friend of Justice. The process for the settlement of civil disputes was largely focused on the trial:
Document production and oral discovery were largely manageable and brief. Trials were advanced by sophisticated barristers with civil and criminal experience. The trials were managed and heard before equally sophisticated judges who themselves had much experience in openings, closings, pleadings, evidence, cross examinations and motions with a skeptical oversight of tactical manoeuvres.
Time is no longer a friend of Justice. The intimate connection was jilted into an adverse relationship. The judges in this divorce are the very public that the civil justice system was meant to serve. Excessive time delays caused by over-sophisticated processes and a complex system focused on documentary and oral discovery have brought the trial itself into disrepute. The public is not willing to bear the burden of lengthy time periods, unrealistic costs and unpredictable outcomes. Because of the failure to meet realistic time and cost limitations, lawyers are viewed as untrustworthy and self-serving. The barrister was a much trusted and admired part of the civil justice system 40 years ago. Judges were viewed with admiration and awe.
As any litigator and litigant in the modern era will tell you, so much has changed for the negative that the civil justice system and the rule of law have fallen into disuse and disrepute. Some of the causes of these concerns relate to the modern communication systems that permit extensive documentation in any business transaction through email and social media, the inability to impose reasonable time frames on pretrial processes, the lack of trial experience of counsel and judges, the tendency to allow evidence based on relevance as opposed to strict exclusionary rules, the tendency toward causes of action and remedies which have a high degree of discretion and the availability of judges and courtrooms sufficient to deal with matters in realistic time frames.
If the civil justice system is to robustly survive into the future, complexity will be diminished, time will be fixed, outcomes will be more predictable and costs will be directly related to outcomes.
To meet these demands, here is a vision of ways in which the trial could be adapted:
First, trial judges in civil cases outside the family law area would not be involved in pretrial processes. All motions and mediations would be managed privately before court-appointed arbitrators. Trial judges will only hear and decide trials. All actions would be certified ready for trial within one year and be tried within the second year. Except to maintain the status quo, motions for summary judgement and injunctions would only be available through court-appointed arbitrators which the parties will pay for themselves.
In these ways, the rules would remain as they are except for the changes regarding time. It would be compulsory that pleadings be completed with strict time frames with no extensions; and documents to be produced on time and formatted in a universal electronic system so they can be merged into a single document set. Failure to produce documents that are relevant would result in dismissal of the case. Costs would not be based on the loser pay system, thereby increasing the predictability of expense of the civil justice system.
While there are many variations that could be instituted along these lines, the point is we could bring time and justice, including access to justice, closer to reality. Those who choose to become judges would know that their careers will be largely focused on trials. Counsel who agree to represent a particular client would only do so if they can conduct the work of the pretrial process within one year and a trial within the second year. The parties who wish to have lengthy and excessive motions would pay for the privilege. Production of largely irrelevant email traffic would be made the subject of agreement to limit or eliminate. A litigant would not bear excessive costs of the opposite party. More cases would settle earlier as the pressure of pretrial deadlines and trial dates allow for parties and their counsel to realistically assess the issues and damages in their cases at the earliest possible opportunity.
The result would lead to a more accessible civil justice system, wherein time and costs are reduced and more predictable, excessive motion work and tactical pre-trial processes including document production are discouraged and trials take centre stage in the resolution of disputes.
John Campion is a partner at Gardiner Roberts LLP.