Perhaps a cure is something entirely different...

By David J Bilinsky

Hold you in his arms yeah, you can feel his disease. Come together, Right now, Over me... – Lyrics and Music by Lennon and McCartney

There was a conference held at Duke University School of Law on May 10-11. Judges, lawyers and others gathered to see if they could “fix” the U.S. federal civil justice system (http://bit.ly/cEG9S0).

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 per cent agreed that it is “too expensive.” In addition, 80 per cent 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 B.C. Supreme Court Rules come 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.” Perhaps the problems with the current system are inherent within the system itself. 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, 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 is challenging, particularly if the date ends up being rescheduled.

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 can either absorb costs or seek to recover them from the parties. 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. Process can also be manipulated by those crafty enough to figure out how and this may frustrate justice.

ADVERSARIAL: Perhaps the most central feature to the civil justice system is its reliance on the adversarial approach to justice. The problem is that the public these days favour approaches that take the parties from a problem mode to a solution mode – quickly!

INTERVENTION: The judicial system renders a judgment at the end of the proceedings, 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.

ALTERNATIVES: 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 (full disclosure: the writer is on the organizing committee). Come together – lawyers and judges – 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.

The views expressed herein are strictly those of the author and may not be shared by the Law Society of B.C. David J. Bilinsky is the Practice Management Advisor for the LSBC. Email: daveb@lsbc.org; Blog: www.thoughtfullaw.com.

This article originally appeared in the June 2010 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.