During the month of April, 2014, Canadian Defence Lawyers (CDL, Canada’s voice of civil litigation defence lawyers) surveyed its Ontario membership in order to identify areas of unnecessary conflict between plaintiff and defence lawyers in personal injury litigation. CDL will be participating as a stakeholder in a consultation by the Ontario Trial Lawyers Association (OTLA, Ontario’s leading association of plaintiff-side personal injury lawyers) in its campaign to improve standards and civility in personal injury litigation. CDL Board member and Gilbertson Davis LLP lawyer Lee Akazaki has been asked to represent the defence bar in this worthwhile project.
OTLA has embarked on this project after recognizing that professional lapses are an impediment to client service. Because of the pool of lawyers surveyed, respondents were more likely to complain about plaintiffs lawyers than fellow defence lawyers. Nevertheless, we intentionally inserted a third question in order to elicit constructive self-criticism. That OTLA has invited CDL to take part in its internal working group demonstrates the value of CDL to its own members in opening a channel between the plaintiff and defence bar to share common concerns. By taking steps to make lawyer interaction more responsive to corporate and insurance defence litigants, CDL empowers its members in the justice system.
In the survey, CDL asked members the following questions:
Q1: In your view, what is the element of professional interaction between plaintiffs’ and defence counsel which poses the greatest obstacle in serving their respective clients?
Q2: In relation to your answer to Q1, are there any practices among plaintiffs’ counsel which you would like to see improved?
Q3: In relation to your answer to Q1, are there any practices among defence counsel which you would like to see improved?”
As surveys go, 43 responses for a limited-term confidential email questionnaire of this kind was quite good. The answers were intentionally left open (as opposed to multiple choice), in order to gauge consistency. By far the most consistent responses were the first three, regarding communication and facilitating settlement. Defence counsel are saying that they need information to assess cases and to obtain settlement instruction – and the earlier this is provided the better:
timely responses to communications by email and telephone
timely production of documents especially medical
counsel for plaintiffs advising their clients about early settlement and realistic expectations
counsel for defendants advising their clients to attend mediations with sufficient settlement authority
expertise in a particular area of law
posturing and egotism on both sides
claims for punitive damages where none are warranted under law
preparation for significant events such as examinations for discovery and motions
accountability for the consequences of steps taken or delayed
unnecessary or defensive crossclaims and third party claims by defence counsel
regional differences (some local bars are more collegial than others)
At the end of the day, plaintiff and defence lawyers are adversaries under a barrister’s oath to effect a just result for their clients. Acting within the law also means knowing what the law is. Civility means respect, and also means a recognition that both lawyers’ clients are participants in the greater community. Fearlessness does not mean aggression. Intelligence does not mean underhandedness. Honour does not mean there can only be one winner. The modern face of litigation demands a fresh approach to litigation and conflict resolution. Are you ready for this new era? Is your lawyer?