Civil Procedure – Pirie – 2010 – Final Outline
Asif Abdulla
The Adversarial System of Justice (September 15):
Preamble:
The adversarial system of justice has been the foundation of our Western model of civil procedure for a long time. What are its strengths? Does it have weaknesses or failings? How does it fit with your style of lawyering? How does an adversarial system of justice shape the roles of judges, lawyers, and the parties themselves? Are there alternatives to this system of justice? In this lecture we examine the adversarial system of justice in order to understand its important impact on the civil litigation process. We also consider alternatives to an adversarial model.
Conflict Styles – Assertive vs. Cooperative:
1. Competitive: highly assertive and very unconcerned with others’ needs
2. Avoiders: very unassertive, not focused on own needs or other person’s needs
3. Accommodator: highly unassertive and acquiescent to other’s needs
4. Compromiser: values own interests but is open to other’s needs – willing to negotiate
5. Collaborators: highly assertive but will also recognize other’s opinions – not willing to back down, but knows the other position well and is open to their points
CBA Code of Professional Conduct Ch IX, pg 61:
Guiding Principles: The advocate’s duty to the client is to “fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case” and to endeavour “to obtain for his client the benefit of any and every remedy and defence which is authorized by law” must always be discharged by fair and honourable means, without illegality and in a manner consistent with the lawyer’s duty to treat the court with candour, fairness, courtesy and respect
The Adversarial System
- Based on two grounding principles: Party Autonomy and Part Prosecution
- Party Autonomy: parties have the right to pursue or dispose of their legal rights and remedies as they wish
o Creates the responsibility to represent the client with every defence available
- Party Prosecution: parties have the primary responsibility to choose without interference from the judge, the manner in which they go forward with the case
- Characterised by: orality, single climactic trial, party control and belief that “the best and fairest way of resolving a dispute is by a contest between competing adversaries”
Advantages:
- There is always an actual outcome in each case – someone is right and someone is wrong
- Equal process and procedures – cross examination, evidentiary rules, etc
- Full examination of the story
- Procedural Justice
- Transparent and Impartial
Disadvantages:
- The outcome may not always be the “fair” result
- Slow and costly procedure
o The judge may have to lend assistance to parties that can’t afford proper counsel
- Inequitable – rich have a much higher access to the law
- Matters are translated to legal issues, and very important actual non-legal matters may be missed in this process
Alternatives to the Adversarial Process:
- Inquisitorial system
o European based – founded on judicial involvement in the process – judge is involved in the determination of relevance, which issues to explore, etc
- Indigenous system
- Non-Adversarial Justice systems
o More attention to behaviour of the parties involved
o Collaborative law
o Therapeutic jurisprudence
- Reasonable Expenses – costs should be proportionate to the magnitude, value, importance, complexity
o Legal costs in the current system usually ¾ of total judgement obtained
o Adversarial system does not have costs in mind
Proper Functioning requires lawyers to act in honest, ethical and competent manner
- “to promote the interests of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity”
Common Law vs. Civil Law – Main Differences
- Adversarial (CL) – primary responsibility for development of case is the parties
- Inquisitorial (Civil) – responsibility is on the judges
Major Themes Of Civil Justice Reform
Goal of the Civil Justice System:
- Just resolution of disputes through a fair but swift process at a reasonable expense
The Problem:
- BCSC civil action prohibitively expensive – takes far too long, overly complex
The Causes:
- System is designed not with costs in mind, but to resolve through competitive adversaries
o Lawyers task becomes to take every step possible to advance the client’s claim
o Puts a premium on disclosure, often at great expense
- The legal community is firmly entrenched in the “billable hour” model
o Extensive advocacy, wasteful or unnecessary – financially rewarding
Legal Culture
- Resistance to change within the profession in spite of crisis of access to civil justice system
- Fear and uncertainty of changing a long-established remuneration model
- Duty to client seems to trump all other duties, results in “zealous advocate”
- Power of fact: lawyers often unwilling to negotiate until full discovery, at which point a great deal of time and money have been spent by the client and other parties involved
- Billable Hour System has become frenetic and competitive, resulting in negative impact on balance, mentoring, associate training and collegiality
Legal Ethics and Professional Responsibility (September 22):
Preamble:
In the civil litigation process professional responsibility and ethical issues can often arise without warning. These matters can seriously jeopardize, even end, a lawyer’s career. It is the lawyer's duty to recognize these professional responsibility and ethical issues and to respond to them in a professional and ethical manner. In this lecture we will examine rules of professional responsibility that guide a lawyer in the civil litigation process, the relationship between professional and personal values, consider a fact situation that raises ethical issues, and develop an appropriate framework to respond to ethical challenges when they arise in the context of civil litigation.
Professional Responsibility:
- Ethical responsibility is an essential overarching concern with every issue
- What action needs to be taken to effectively resolve/respond to the issue(s) identified
- Identifying a professional responsibility issue – there will almost always be a conflict of duties, usually between duty to the client and another notion of duty
Professional Conduct Handbook – The Law Society of BC
Chapter 1 – Canons of Legal Ethics
- It is a lawyer’s duty to promote the interests of the state, serve the cause of justice, maintain the authority and dignity of the courts, be faithful to clients, be candid and courteous in relations with other lawyers and demonstrate personal integrity
1. To the State:
(1) …duty to the state, to maintain its integrity and its law…should not aid, counsel, or assist any person to act in a way contrary to the law
(3) Lawyer should accept without hesitation, and if needed, for free, the cause of any person assigned to that lawyer by the court – exert every effort on that client’s behalf
2. To Courts and Tribunals:
(1) Conduct at all time should be characterized by candour and fairness. Maintain a courteous and respectful attitude and insist on the same from clients
(2) Judges are entitled to the support of the legal profession against unjust criticisms
(3) Lawyer should not attempt to deceive the court
(4) Lawyer should never privately try to influence a court either directly/indirectly
3. To the Client:
(1) Lawyer should obtain sufficient knowledge of the facts and law before advising
(2) Lawyer should disclose all circumstances of the lawyer’s relations to the parties
(3) Where fair settlement is available, the client should be advised to end litigation
(4) Treat adverse witnesses, litigants and counsel with fairness and courtesy
(5) Should endeavour by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence which is authorized by law
(6) Lawyer’s right to undertake the defence of an accused person regardless of the lawyer’s own personal opinion as to the guilt/innocence of that person
(7) Lawyer should not purchase any interest in the subject matter of the litigation
(8) Lawyer must record, and promptly report to a client the receipt of any money or other trusts of property – to only be used as authorized by the client
(9) Lawyer is entitled to a reasonable compensation for services rendered, but should avoid charges that are unreasonably high or low
(10) Lawyer should avoid controversies with clients about compensation
(11) Lawyer who appears as an advocate should not submit their own affidavit to testify before a court on the matter
4. To Other Lawyers
(1) Characterized by courtesy and good faith
(2) Neither give nor request an undertaking that can’t be fulfilled and should fulfil every undertaking given
(3) Lawyer should avoid sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter
5. To Oneself
(1) Assist in the maintaining the honour and integrity of the legal profession
(2) Guard the Bar against the admission to the profession of any candidate whose moral character renders the person unfit for admission
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Chapter 8 – The Lawyer as Advocate
1. A lawyer must not:
a. Abuse the process by instituting proceedings that are clearly motivated by malice
b. Knowingly assist the client to do anything or acquiesce in the client doing anything dishonest or dishonourable
c. Appear before an officer that the lawyer has a personal relationship with
d. Directly/indirectly attempt to influence the decision or actions of the court
e. Knowingly assert something for which there is no reasonable basis in evidence
f. Deliberately refrain from informing the court of any pertinent authority directly on point that has not been mentioned by the opponent
g. Dissuade material witness from giving evidence
h. Knowingly permit a party or witness to be presented in a false way
i. Appear before a court or tribunal while impaired by alcohol or drug
False testimony:
2. When client advises lawyer that he/she intends to give false testimony, the lawyer must explain to the client the professional duty to withdraw if the client insists on going forth
3. When counselled in accordance with 2., but still advises that they will give false testimony, the lawyer must withdraw from representing the client
4. A lawyer that withdraws under 3 must not disclose to the court or anyone else the reason
5. A lawyer must not call a witness who has advised the lawyer that they intend to give false testimony under oath
Inconsistent statements or testimony:
6. Mere inconsistency is insufficient to be considered false testimony. The lawyer must explore the inconsistency with the client/witness to determine if rule 2 applies
Duty to withdraw:
7. When a client wishes to do something contrary to this chapter, the lawyer must do everything reasonably possible to prevent it
8. If despite actions under 7, the client does anything prohibited under this chapter, the lawyer must withdraw from representing the client
Lawyer as a witness:
9. A lawyer who gives viva voce or affidavit evidence must not continue to act as counsel in that proceeding unless
a. The evidence relates to a purely formal or uncontroverted matter OR
b. It is necessary in the interest of justice
10. A lawyer who was a witness in proceedings must not appear as advocate in any appeal from the decision in those proceedings, when the lawyer’s evidence may reasonably be expected to be an issue on the appeal.
Pleadings (September 27):
Pleadings Generally:
- The plaintiff/applicant must issue originating notice that:
o Identifies the parties; Sets out the facts upon which the claim for relief is based; and states the relief sought
- The originating notice sets out the parameters of the case and determines which facts are conceded and which are in issue – this goes to the evidentiary burden
Exchanging Allegations of Fact:
- When the defendant receives the claim, they can respond be making a challenge to the claim or they may chose to defend it on its merits
o Statement of Defence is used to defend a claim on its merits
§ Respond to each allegation – either admit or deny
Additional Claims:
- Sometimes the plaintiff wants to respond to a specific allegation made by the defence in their statement of defence
- Where a counter-claim is made, the plaintiff can respond with a statement of defence against the counter claim (this is separate from a reply)
Amending Pleadings:
- Instead of filing subsequent pleadings, the original pleading can be amended
- Parties are free to amend during the pleadings time, provided no amendment to parties
- After pleadings are over, amendment requires consent of other party or court approval
o Courts are hesitant to allow pleadings where they become costly and lengthy
Facts, Law and Evidence:
- Parties must plead the “material facts” relied up to support their claim or defence
- Just a series of factual allegations and not a complete review of evidence
o Evidence may not be revealed until discovery
- Where there are insufficient facts, the other party can ask for “particulars”
- Need not include evidence by which facts are proven
Variance:
- It’s unfair to raise new issues at trial or present evidence that relates to issues that have not been pleaded
o Amendments are allowed up to trial, but concerns must be balanced
§ Freedom to present a full position vs. fairness in the civil process
Substantive Adequacy:
- Notice of Civil Claim must contain facts that disclose a reasonable cause of action
- Statement of Defence must contain facts that disclose a meritorious defence
Actions and Applications:
- Actions are the usual trial process – live testimony
- Applications are used where issues of fact can be determined on documentary evidence alone – available upon approval of the court
o Used to expedite the process (wills/trusts/interpretive/etc)
- Claimant need only issue the notice of proceeding and prepare for the hearing