Mediation is a cornerstone of the justice system in this province.
Ontario Chief Justice Warren Winkler, April 21, 2008
The view counsel takes of mediation will drive your approach to the case from the first meeting with your client until the dispute is resolved.
Less than a generation ago, litigation lawyers gave advice on based only on how the trial judge or the judge and jury were likely to view the facts and the law of the case. In retrospect, this was rather surprising because even in the last decades of the previous millennium, when the trend to mediated settlements was in its infancy, more than 90% of cases settled before trial.
Back then, however, lawyers approached pleadings with a minimalist philosophy. Good young counsel were taught by their senior principals in the fine art of "skinny pleadings." The objective was to give away as little of the case as possible and get to trial as quickly as possible. Senior counsel spoke of "knocking off a Statement of Claim in five minutes" and using as much "boilerplate" language as possible. A pleading, replete with evidence and full of "he said", "she said", was typically the mark of a lawyer who did not practice much litigation or of counsel who was too busy to properly mentor his freshly-minted junior.
Upon further reflection, the old approach was understandable. Before the advent of mediation as an ubiquitous and highly effective dispute resolution mechanism, settlements were all too frequently driven by a call from the Trial Office that the case would be called for trial "next week" and the Trial Scheduling Judge was not tolerating requests for adjournments lightly. Amid cries of Yikes!, and Where's the file! a small voice whispered, How about calling the other side to negotiate a settlement? What a brilliant idea! Many cases settled as much to avoid having to prepare for trial than on the basis of the merits of the case. Some cynics may argue not much has changed. Some traditionalists will claim we are being too cynical.
At the end of 2009, we have entered the Enlightened Age of Mediation. As Ontario Chief Justice Winkler said 18 months ago, Mediation is the cornerstone of the justice system in this province. Mediated settlements, not trials and appeals, not even summary judgment motions, have become the most likely way to resolve a dispute.
Aha, you say: So, how much can get for my dusty court robes? and Thank goodness, we won't have to spend any more money on those expensive CLE programs on written and oral advocacy. Not so fast, Mickey. In the "Enlightened Age of Mediation, written and oral advocacy skills are more important than ever.
Good advocacy begins with excellent and persuasive pleadings. Excellent and persuasive pleadings require an insightful appreciation of the litigation process in the context of the new Rules of Civil Procedure which come in to effect on January 1, 2010. Persuasive pleadings must, more than ever, be drafted with mediation in mind.
Some things have not changed. Wordy, unpersuasive pleadings are still the mark of counsel who has failed to appreciate the importance that a good first impression of your client's case makes. Unpersuasive pleadings are also the mark of the litigator who has not identified the target audiences of his/her client's case and may be missing out on important opportunities to achieve a successful and possibly, early resolution of the dispute.
The theme of Igor Ellyn's 2003 paper was that since the prospect of reaching trial was less than 5%, pleadings should be drafted with target audiences who are most likely to be persuaded by your client's case in mind. The target audiences of the statement of claim or statement of defence and counterclaim you draft in the privacy of your office will be read by a surprisingly large number of people, including:
o Other lawyers, law clerks and students in your firm
o Your client
o Members of your client's family
o If the client is a corporation, members of the corporation's management
o The client's in-house counsel or corporate solicitor
o Your referring lawyer
o The opposing party or parties
o Members of the opposing party's family
o If the defendant is a corporation, members of the corporation's management
o Opposing party's counsel and others in her/his firm
o The defendant's insurance adjuster and insurance claims manager
o The mandatory mediator at a pre-discovery mediation
o The case management Master at a motion or case conference
o The judge or master on pleading or particulars motions
o The judge or master on a motion for summary judgment
o The master on a post-discovery refusals motion
o The judge or master at the settlement conference or pre-trial conference
o The private mediator at a post-discovery mediation
o The judge who conducts the in-trial settlement conference
o The trial judge
o The judges of the Court of Appeal
Many of the above readers, other than the summary judgment, the trial judge and the judges of the Court of Appeal, will be key parts of the process of finding a voluntary, alternative resolution of the dispute by negotiation or mediation. Even if each category of reader represents only a single person (which is unlikely), there are more than 22 potential readers of your first public presentation of your client's position in the action: the Statement of Claim or the Statement of Defense and Counterclaim.
Attitudes to Mediation and Settlement
While we are not sure which is the chicken and which is the egg, the enlightenment of mediation is either the result or the cause of a new approach to advocacy. Gone are the days when the advocate's role was solely to careen toward trial like an out of control train. Clients may still be looking for the toughest lawyer and the lawyer who will not compromise under any circumstances but we now know that this is not what produces the results our clients are looking for.
In fact, a study published in the Journal of Empirical Legal Studies in September 2008, quantitatively evaluated the incidence and magnitude of errors made by lawyers and clients in unsuccessful settlement negotiations. The study analyzed more than 2000 cases in which settlement negotiations broke because the plaintiffs refused to accept the defendants' last offer and proceeded to trial. The study found that in more than 60% of the cases, the plaintiffs recovered less at trial than the settlement offer. The study concluded that overall, clients are happier when the case settles because of the avoidance of risk and closure the settlement produces.
In an anecdotal 2001 study by Windsor law Professor Julie Macfarlane, forty commercial lawyers in Toronto and Ottawa were interviewed to determine their attitudes to mediation. Professor Macfarlane summarized lawyers' attitudes towards mediation into five categories:
The True Believer finds that mediation has significantly affected his/her practice; sees conflict between the adversarial litigation role and that of peace facilitator in mediation. The Pragmatist finds mediation attractive due to time and cost efficiencies; generally sees no conflict between the mediation and litigation roles. The Instrumentalist views mediation as a strategic tool to promote adversarial interests and goals. The Dismisser sees mediation as equivalent to traditional negotiation; considers mandatory mediation an intrusion by the court. The Denier sees mediation as a threat to the integrity of the role of the lawyer; strongly opposes mediation.
While it is too much to expect all litigators will become True Mediation Believers and Mediation Pragmatists, the Dismissers and Deniers have to accept that the Mediation Train has left the station and enlightened litigators simply have to be on it to succeed. In the Enlightened Age of Mediation, the question is not Will there be a mediation? but rather, how can the mediation be made more effective to increase the prospects for settlement of the dispute? We submit that the successful mediated settlement track begins with persuasive pleadings.
Our point that persuasive pleadings are your first opportunity to communicate the righteousness of your client's case to the opposing party while underscoring the weaknesses of the defendants' position and their exposure to adverse consequences was also recently made in a well-written paper recently submitted to an OBA CLE seminar by Renato Gasparotto and Michael Polvere. The authors emphasize that at the heart of good advocacy is the effective of use of language and a realistic understanding and assessment of the supporting facts, well-organized and clearly expressed. To this we add, that there has to be a mindset, a format and an understanding of the law.
The New Ontario Rules of Civil Procedure
The new Rules of Civil Procedure, which come into effect on January 1, 2010, are intended to make the civil justice system more accessible and affordable for Ontarians. There has been a shocking increase in the number of unrepresented litigants. The November 2007 Civil Justice Reform Project under the able chairmanship of former Ontario Associate Chief Justice Coulter A. Osborne, QC recommended better and less expensive access to the Courts with more mechanisms to promote early settlement.
Most of the amendments make it easier to take a case off the litigation track and put it on the mediation track. Of course, this does not mean litigants lose their opportunity to have their day in Court if settlement is impossible. However, the new system recognizes that most cases will settle by mediation or by counsel applying mediation principles and negotiating settlement themselves.
Under the new Rules of Civil Procedure, more cases will settle before trial, because:
o more cases will be subject to mandatory mediation. All cases in Toronto, Ottawa and Windsor which do not fall within the specific exceptions in new Rule 24.1.04(2) are subject to mandatory mediation.
o All simplified rules cases in Toronto, Ottawa and Windsor are subject to mandatory mediation.
o The cap or ceiling for simplified rule cases increases to $100,000.00.
o There is more flexibility as to the timing of a mandatory mediation. Rule 24.1.09(1) permits the mediation to take place within 120 days after the first defence was filed. Also, the parties may consent to postpone the mediation to a later date. This flexibility enables counsel to delay the mediation until enough documentary and oral discovery has taken place to enable parties to better understand each other's positions and what evidence will be adduced at trial.
Matters to consider before you draft your pleading
It is not enough to draft the bare minimum when it comes to pleadings. A good lawyer will use every tool s/he has to advocate on behalf of a client, and a strong pleading is the first step.
Preparation and Investigation
Pleadings should not be skinny. They should be used by counsel to present the best face of their client's case with the information available to them at that time. Much can be done to prepare persuasive pleadings even before discovery. Before you begin to draft your pleading, make sure that you have done the following:
o Speak to your client(s) at length and get their full story in detail
o Speak to potential trial witnesses
o Hire a private investigator
o Ask your client for a chronology of key events in the case
o Review the chronology in detail and identify what documents are likely to exist
o Press your client to provide all documents related to the case in any way
o Don't forget documents in electronic format; get all of the emails
o Organize and read the documents your client sends
o Prepare your own chronology of the events from an advocacy perspective
o Identify the factual and legal issues in dispute
o Identify the remedies your client hopes for
o Now is the time to research all of the applicable issues of law
o Balance your client's hopes with an analysis of what is achievable
o Identify all your causes of action and ensure you have the proper "test"
o Identify all applicable statutes, rules, regulations and maxims
o Identify all defences, including limitation periods, which are now very short
o Assess whether to Crossclaim, Counterclaim or Third Party
o Critically review precedent pleadings in your office or on databases
Oral and Documental Discovery
Under the new Rule 29.1 counsel are required to agree to, and to update, a written discovery plan. In their discovery plan counsel will jointly decide when the Affidavit of Documents will be exchanged. Where the parties have failed to agree to or update a discovery plan in accordance with Rule 29.1, and where a party has brought a motion under Rules 30-35 (the discovery rules) the court may refuse to grant any relief or to award any costs.
As for examinations for discovery, gone are the days of endless hours and days of examinations. Under Rule 31.05.1(1) there is now a 7 hour time limit on the length of examinations for discovery per party.
To encourage counsel to discuss settlement earlier in the action, parties in Rule 76 Simplified Rules cases will have the opportunity to examine an opposing party for discovery but it shall not "exceed a total of two hours of examination, regardless of the number of parties or other persons to be examined." As there are no transition rules, claims between $50,000.00 (the old simplified rules cap) and $100,000.00 (the new simplified rules cap) will also only be allowed two hours of examinations for discovery; whereas before they were allowed unlimited days for examination for discovery.
Drafting effective pleadings
Instead of drafting skinny pleadings, which limit the information provided, counsel should see pleadings as an opportunity to persuade the primary target audiences of its merits. Persuasion is in part a presentation art form. As set out in Igor Ellyn's April 2003 paper, a good pleading should not:
o lack eye appeal or is unreadable due to font size or other factors
o be too wordy or contain spelling or grammar errors
o be vague, unparticularized and difficult to follow
o contain more than one major thought per paragraph
o exaggerate or misstate important facts
o fail to disclose a reasonable cause of action
o raise remedies without pleading the elements required to prove them
o contain allegations bound to anger the other party
o allege fraudulent conduct without sufficient particulars or that cannot be proved
o allege fraudulent conduct which makes insurance inapplicable
o seek damages for "pie in the sky" unrecoverable amounts
o seek punitive damages when they could never be recovered
o seek punitive damages for unreasonable amounts
In 1996, Justice Paul Perell, whose expertise about pleadings was well-recognized before he was appointed to the Ontario Superior Court of Justice in 2005, published an excellent article entitled "The Essentials of Pleading". Although the article was published 13 years ago, it is still a useful guide for what should and should not be pleaded. Persuasive pleadings should be civil, reasonable and measured. Good pleadings are a powerful advocacy tool to present the strengths of your client's case while exposing the weakness of the opposing party's position.
You know there will be a mediation
Almost as sure as the sun will rise tomorrow, there will be a mediation in your case; unless your client gives up or the defendant goes bankrupt early in the case. We recognize that there some obstinate litigants who refuse to participate in a mediation and some who want their day in court "no matter what". In our experience, even most of these will eventually find their way to mediation, which may settle the whole case. Rule 24.1 requires that early on, before discovery is completed, a mandatory mediation be held. Non-mandatory mediations are also arranged in most cases.
Drafting pleadings with mediation in mind means that the statement of claim should be a more thorough statement of the plaintiff's claim than it has been in the past. To the extent that the Rules allow, the statement of claim should prepare counsel for the mandatory mediation which will soon take place. Under Ontario's mandatory mediation process, the parties are required to submit a Statement of Issues. A well drafted pleading assists counsel in drafting their statement of issues or mediation brief.
Well-drafted pleadings will assist counsel in settling the case. An effective pleading assists in the preparation of the Statement of Issues or Mediation Brief. A lot of the work required for the mediation has already been completed:
o the facts of the case are already set out in an easy to follow chronology
o it may be easier to forge an agreed statement of facts
o turned their mind to the issues in dispute in the action
o researched the case law
o identified and referred to the applicable statutes, rules and maxims
The only difference between the pleadings and the Statement of Issues and Mediation Brief is that the pleadings will not contain matters which compromise the claim. The pleadings are not without prejudice whereas the mediation brief is.
Pre-Trial Conferences
All parties of cases that fall under the new Rule 76 Simplified Rules are required to attend a pre-trial conference in front of a Master or Judge; arranged by the registrar within 90 days after the action is set down for trial.
Rule 50, which deals with pre-trial conferences, has been completed revamped. When the Rule amendments were introduced, the Attorney General noted that the government hopes to encourage settlement and the narrowing of trial issues by mandating pretrial conferences. The purpose of Rule 50 is to provide an opportunity for any or all of the issues in a proceeding to be settled without a hearing. The new rules also will require parties to file a detailed conference briefs. Parties and counsel must appear at pre-trial conferences, and courts will be empowered to order a timetable for moving forward when matters are not settled at the conference, said the ministry.
Judges are more knowledgeable about mediation than they were a decade ago. Indeed many judges are very skilled mediators. The pre-trial conference is a mediation opportunity. Counsel knows that the pre-trial judge will read the pleadings. Well- drafted pleadings, which tell a clear, concise, persuasive story in short sentences and short paragraphs will assist the pre-trial judge in understanding your case.
A few words of wisdom from the pre-trial judge can have a major impact on the direction of the case. A party quickly begins to talk settlement when the pre-trial judge says: "Look, we assess risk here every day. You don't have to settle but if I were the trial judge, you'd have a still uphill climb to persuade me of your position. Another judge might see it differently but... If the defendant is represented by counsel for an insurance company, the lawyer will have report to his client. An acceptable settlement offer may soon follow.
In such situations, the likelihood of reaching a settlement depends on good advocacy and effective negotiations. Good advocacy begins with good pleadings, which put your client's best foot forward and persuade the opposing party that you are competent counsel who will effectively advance the strengths of your client's case and expose the weaknesses of the defendant's case at trial if there is no settlement.
Case and Settlement Conferences
Old Rules 77 (Civil Case Management) and 78 (Toronto Civil Case Management) are revoked as of January 1, 2010. In its place, the new Rule 77, which applies to proceedings in Ottawa, Toronto and Windsor, incorporates the old Rules and adds some new elements. The new rule mandates case conferences and settlement conferences throughout the action. Each of these events represents an opportunity to obtain the assistance of the Court in narrowing the issues and possibly, settling the action. Good pleadings may assist in achieving these objectives.
Conclusion
In the Enlightened Age of Mediation, the trial is no longer the usual end game of the litigation process. With the ever increasing cost of litigation, the most likely resolution will be a mediated settlement. It is likely to save money and achieve a better result than the risk of a trial and an appeal. Coincidentally, this is what your clients are hoping for.
Pleadings which make a strong but reasonable case to your target audiences are more likely to be persuasive and will assist you in negotiating a better settlement for your client at mediation or sooner.
Toronto, November 2009.
Igor Ellyn, QC, CS is the senior partner of ELLYN LAW LLP Business Litigation & Arbitration Lawyers, a Toronto law firm specializing in business dispute resolution and international judgment and arbitral award enforcement. He is a Specialist in Civil Litigation and a past president of the Ontario Bar Association. Evelyn Perez Youssoufian is a commercial litigation lawyer at ELLYN LAW LLP Business Litigation & Arbitration Lawyers. She has practiced law since 2005 and is an LL.B./J.D. graduate of the Faculty of Law, University of Windsor and University of Detroit Mercy. Ellyn Law LLP Business Litigation & Arbitration Lawyers is a proud member of two prestigious international networks, the International Network of Boutique Law Firms (http://www.inblf.com). For more information about the authors and their litigation services, please visit http://www.ellynlaw.com.
![Separate But Equal [VHS]](http://information-plat.info/510GYV35SALSL500.jpg)
One of the most pivotal moments in 20th century American history is bracingly dramatized in Separate but Equal. In telling the detailed story of the Supreme Court's 1953 decision to abolish racial segregation in schools, this superb 1991 TV movie covers a broad spectrum of issues, never taking its "eyes off the prize" while its first-rate cast conveys the importance of the Supreme Court's ultimately unanimous decision. It was the culmination of a lengthy, legally complex, and morally compelling struggle that began humbly in South Carolina in 1950, where future Supreme Court Justice Thurgood Marshall (Sidney Poitier)--then a New York-based lawyer for the NAACP--fought on behalf of an underprivileged black community facing social injustice despite the 1896 decision (Plessy v. Ferguson) that promised "separate but equal" treatment in the wake of slavery's abolition. Both direction and script by George Stevens Jr. are utterly conventional, but with so much dignity and fine acting in the service of a noble undertaking (including Burt Lancaster's final performance, as opposing counsel John W. Davis), Separate but Equal achieves a lasting importance of its own. --Jeff Shannon
Mickey Haller has fallen on tough times. He expands his business into foreclosure defense, only to see one of his clients accused of killing the banker she blames for trying to take away her home. 
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TO KILL A MOCKINGBIRD - DVD Movie
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