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    June 12th, 2010

    ♫ Hold you in his arms yeah, you can feel his disease
    Come together, Right now, Over me..♫

    Lyrics and Music by Lennon & McCartney.

    There is a conference going on in at Duke University School of Law on May 10/11. Judges, lawyers and others are going to be gathering to see if they can ‘fix’ the US federal civil justice system.

    Seems that they see a bit of problem:

    “To prepare for the meeting, the Institute for the Advancement of the American Legal System canvassed chief legal officers and general counsel who are members of the Association of Corporate Counsel from around the country. Fifty-five percent agreed the civil justice system is “too complex,” while 97 percent agreed that it is “too expensive.” In addition, 80 percent disagreed with the statement: “Outcomes are driven more by the merits of the case than by litigation costs.”

    This sounds eerily familiar, considering our new BC Supreme Court Rules coming into effect on July 1. One can ask: If the same symptoms are felt in different jurisdictions, perhaps all of the jurisdictions are feeling the same disease?

    Albert Einstein once said: “We can’t solve problems by using the same kind of thinking we used when we created them.” To me this indicates that perhaps the problems with the current system are inherent within the system itself since that is how it was designed. To follow this further, then adjusting the rules – in any fashion – and no matter how well thought out – may be the legal equivalent of rearranging the deck chairs on the Titanic.

    Aside from the comments of the ACC noted above related to complexity, cost and other factors, what are some of the structural weaknesses of the current civil justice system?

    • Synchronous: The current system calls for all parties and their counsel, the judge and others to be physically present in the same location at the same time, usually on multiple dates. Lives are complex today and setting aside that time to be at a location can take time and has a cost – particularly if the date ends up being rescheduled for one reason or another.

    • Geographically tied: Time is money and having to physically travel to a set location – time and time again – has a cost in terms of lost time (opportunity cost) as well as the actual costs of travel.

    • Institutional costs: Courts, Judges, court staff – all have costs associated with them. Governments which must bear these costs can either absorb them or seek to recover them from the parties themselves. However, seeking to recover these from the parties only acts as a further disincentive to seek justice.

    • Procedurally detailed: Individuals come to the justice system to seek redress. While process is important, dealing with complex rules can also serve as a barrier to those with smaller claims that do not justify the hiring of lawyers to assist. Process can also be manipulated by those crafty enough to figure out how; which results in the frustration of justice.

    • Adversarial: Perhaps the most central feature to the civil justice system is its reliance on the adversarial approach to justice. Problem is that the public these days seems to be favouring approaches that take the parties from a problem (ie adversarial) mode to a solution mode.

    • Intervention: The judicial system renders a judgement at the end of the process, only after the parties have subjected each other to long and drawn out processes. Parties, however, wish to have a degree of reality and objectivity injected at an early stage to prevent the process from becoming long and drawn out.

    One of the new dispute resolution systems is ODR – Online Dispute Resolution. Vancouver will host an international conference on ODR in November that will involve the UN, governments, industry and representatives from many nations, all centred around the use of ODR in consumer disputes (the writer is on the organizing committee). Come together – lawyers and judges – attend and perhaps ODR can be grafted into the system to solve client disputes in different ways that may be faster, less-stressful for the client and cheaper.

    (This post was originally written for the Canadian Bar Association – British Columbia Branch’s newsletter “BarTalk” in the column “PracticeTalk”).

    This blog post has been cross-posed to:

    This entry was posted on Saturday, June 12th, 2010 at 10:58 pm and is filed under Law Firm Strategy. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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