E-BRIEF - Jan-Feb 2004 - The Advocates' Society

More documents

Recommendations

Info

OUR TEAM MAY NOT SEEM VERY INTIMIDATING. UNTIL THEY TESTIFY. Complex business disputes require a sophisticated analysis. We have experienced investigative and forensic accountants, computer forensic specialists, civil litigation consultants and insurance claims specialists ready to objectively analyze the facts underlying a dispute and testify to their findings in court. Our worldwide network and resources enable us to overcome geographic boundaries. For more information, please contact: Toronto Daniel Edwards 416 941 8330 David Griffiths 416 941 8229 Steve Henderson 416 941 8328 Bob Martin 416 941 8306 John Seigel 416 815 5087 Bruce Webster 416 815 5250 Ottawa Ron Jackson 613 755 4343 Hamilton Jim Forbes 905 972 4105 London Bruce Webster 519 640 8009 PricewaterhouseCoopers is proud to sponsor Advocates’ Society events and programs. www.pwcglobal.com/ca © 2003 PricewaterhouseCoopers LLP. “PricewaterhouseCoopers” refers to PricewaterhouseCoopers LLP, an Ontario limited liability partnership, or, as the context requires, the network of member firms of PricewaterhouseCoopers International Limited, each of which is a separate and independent legal entity. 4 VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004
Litigation Tips & Traps - “Southren” Style By Jane Southren McDonald & Hayden LLP One of the challenges that may face a newly-called litigator in a smaller firm is that the firm may not offer the breadth of knowledge and diversity of experience that one may call upon at larger firms when one runs across a situation that is not clearly dealt with in the Rules of Civil Procedure or in the case law. Don't be discouraged. There is a storehouse of legal information out there that will be available to you if you take the time and initiative required to develop a network of lawyers, at all stages of call, to whom you can turn, and who can turn to you, for advice and assistance as issues arise that are unfamiliar to you. This month's column was prepared using that approach. I have contacted numerous lawyers, at all levels of call, to obtain the benefit of their experience, ideas and advice on the thorny issue of: How and When to Nudge the Judge The problem revealed itself to me recently when a colleague of mine approached me for advice. The issue was whether or not she should contact a judge to ask that the judge expedite the delivery of a costs decision. The judge had rendered reasons on the merits of a matter, but not yet on costs. The decision on the merits had been appealed and counsel needed an issued judgment to include in an Appeal Book that she was required to file within a couple of weeks. At or around the same time, another colleague advised me that he was awaiting reasons from a master on a motion seeking to have an action dismissed for delay. In that case, a case management ordered pre-trial date was looming. The lawyer was anxious to get the reasons prior to the pre-trial date and, accordingly, was considering sending a letter to the master asking him to expedite the reasons. His intentions were laudable; he did not want his client to incur the expense associated with the pre-trial only to find out subsequently that the motion had been successful, the matter dismissed and the attendance at the pretrial unnecessary. I had no answers or advice to offer, as I had never confronted the issue myself, so I started calling for the assistance of the lawyers I customarily call for advice. The advice was consistent across the board: a resounding "Do Not Nudge the Judge." In one case a very senior lawyer I consulted modified the advice slightly to "Don't nudge the judge unless the circumstances are absolutely dire and there is absolutely no alternative." Because I was surprised by the advice, I enquired into the rationale for it and was advised as follows: 1) You almost always can deal with the problem that has arisen as a result of the delayed reasons by taking certain steps on consent, or by using procedures available under the Rules of Civil Procedure and, in particular, under the case management rules. In the first example cited above, the lawyer could have obtained consent to the extension of the time to perfect the appeal from counsel for the respondent. If such consent was not forthcoming, she could have brought a motion before the Court of Appeal seeking an extension of the time to perfect the appeal, and sought the costs of that motion from the respondent who failed to consent. Alternatively, the lawyer could have had a judgment issued on the merits, included that judgment in the appeal book, and then issued another judgment pertaining to the reasons on costs when they were released. If counsel thought it necessary to appeal the decision on costs, the appeal on the merits could be amended to include the costs issue. In the second example cited above, the lawyer could have initiated a case management teleconference, at minimal inconvenience to himself and reasonably little expense to his client, and asked the case management master to adjourn the pre-trial date, pending the release of the reasons on the motion. 2) By taking the steps available on consent or under the Rules you are more likely to obtain effective results for your client. Each of the lawyers I spoke with Jane Southren advised that judges and masters generally have a legitimate reason for a delay in releasing reasons and that the cause of the delay is unlikely to be resolved by a letter from counsel asking the judge or master to speed it up. Accordingly, there is a good chance that the reasons would still not be rendered even after your letter and you would have to resort to the relief available on consent or under the Rules in any event. I did not canvass the views of any judges or masters in the preparation of this column and therefore cannot warrant the degree to which they would agree with this advice. I would be interested to hear from anyone who might have a view that is different from that outlined above and who would be willing to share the reasons for their view. Please send your comments or your ideas for future columns to me at jsouthren@mchayden.ca. “The Advocates’ Brief” welcomes your comments, articles and announcements. Please forward them to: sonia@advocates.ca Fax: 416-597-1588. Mail: 2020 - 438 University Avenue Toronto, ON M5G 2K8 Tel: 416-597-0243 x.112 VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004 5
Page 1 and 2: The Advocates’ E-Brief Don’t mi
Page 3: (Continued from page 2) facilitate
Page 7 and 8: Paying Tribute to Our Remarkable
Page 9 and 10: The New Voice in Forensic Engineeri
Page 11 and 12: (Continued from page 10) unnoticed,
Page 13 and 14: President’s Festive Receptions in
Page 15 and 16: Order Material from Conferences and

E-BRIEF - Jan-Feb 2004 - The Advocates' Society

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?