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Losing the litigation bloat

Trials & Tribulations
|Written By Margaret L. Waddell
Losing the litigation bloat

Swimsuit weather is finally upon us! For those people who have been trapped indoors for months sitting on their ever-expanding behinds basking in the soul-sucking glow of a computer screen, now is the time to start working on slimming those waistlines and enhancing the carb- and coffee-laden diets with the odd fresh offering from the local farmers market. Perhaps even getting outside for a stroll on a beach, a hike up a hill or down a ravine, or a spin around town on a bicycle?

Now is also a great time to think about slimming down some litigation bloat. What pray tell, you ask, is this unctuous phenomenon? Litigation bloat is all those nasty globules of heart attack inducing, good mood destroying, fatty nastiness that clog up the arteries of the justice system. It is the congealed slime floating on top of what looked like a great case until the initial warmth of novelty was cooled by the icy breath of bureaucracy tainted with the rancid stench of rigid observance of process over product.

Litigation bloat is made up of all the layers of unnecessary steps, forms, procedures, demands, and obstructions that are foisted upon us in the current state of our adversarial system. It includes, in no particular order, such things as:

•    discovery plans;

•    antagonistic and obstructionist opposing counsel;

•    motion scheduling court;

•    excessive reliance upon expert witnesses; and

•    document management programs.

All of these supposed innovations have had the same effect on litigation as the North American fast-food diet. (OK, except for the obstructionist counsel, which is as old as the profession itself, and can be like a hunk of Roquefort cheese left in the sun too long — its butyric stench permeates the file and leaves a foul miasma hanging over everything in its vicinity.) Our court system has become obese, gorging on a diet of empty steps that layer on costs to clients and add no meaningful value.

In my opinion, we have become too dependent on expert witnesses. For example, does the court really require a business valuator to opine that there is no goodwill in a specialist sole practitioner’s business, when the work she performs is based upon her own uniquely developed expertise and is entirely referral driven? Yet this seems to be the expected norm.

Then the CBV’s own standards of practice are layered on top, so that the expert cannot simply say there is obviously no goodwill, he or she has to undertake an extensive and expensive analysis. At the end of the day, the client ends up paying thousands of dollars for a report that authoritatively states the obvious. Do we really need that whipped cream with a cherry on top?

While I appreciate that document management systems have their place, and can be enormously helpful in cases involving massive amounts of documentary production, the time required to code, scan, and enter every single possibly relevant document that may or may not be produced in every case can be, and often is, excessive and unwarranted. It’s like carb-loading for a marathon before you head out for a walk around the block.

Many times this electronic document management process ends up being much more costly to the client than is warranted by the quantum or nature of the claim, and the value the ability to search documents electronically adds to the prosecution of the action is minute. This is an easy area to cut back on litigation bloat. Instead of pulling this technology treat out of the snack cupboard every time a new file is opened, take a hard look at the case and think about whether it is really necessary. Perhaps an old fashioned, well-organized binder and list of documents will suffice. Choose the bowl of berries and not the chocolate soufflé, and you will still be satisfied.

Triage court was a brilliant idea — it accumulated everyone with an ex parte motion in a room at the start of the day before court was in session, and sorted out getting those requiring the immediate attention of a judge where they needed to be. Here was the court system at its best — working efficiently, effectively and serving the client’s needs. “So why not make a good thing even better?” must have been the thought, and motion-scheduling court was born. Maybe it was created by the same people who dreamed up the KFC Double Down, I don’t know. What I do know is that motion-scheduling court has created another layer of delay and cost, with no appreciable increase in efficiency.

For those who practise outside Toronto, motion-scheduling court is a process whereby you have to schedule a date and go to court to get a date to go to court. Yup. That’s right. Imagine how helpful this system is for the litigant whose primary objective is delay. They just got handed a coupon to supersize their free meal at the greasy-burger joint of their choice. It’s adipose heaven.

Finally, for me the worst cause of litigation bloat is the requirement to prepare a litigation plan. I can’t count how many hours I have wasted wrangling with opposing counsel over the scope of productions, electronic keyword searches, length of discovery and the like. Rarely have we reached a consensus, unless it is to agree to disagree. At the end of the day, every litigator worth their salt knows what documents their clients will have to produce, and they will advise their clients accordingly. The litigation plan doesn’t change this advice or the litigant’s obligations to produce relevant documents.

While a plan may make sense in some cases that are document intensive or particularly complicated, those are the same cases that qualify for, and typically have, case management. In my opinion, for virtually all other cases, the requirement to complete a litigation plan is meaningless and this mandatory process is another example of a well-intentioned curative that has resulted in unintended bloat-producing side effects.

So, now that we are deep into the lazy, hazy days of summer, let’s make the effort to drop some of the dead weight we’ve been dragging around in our litigation bags. Let’s shed a few pounds of extraneous lard out of our cases and grease the wheels of the litigation grind with a drizzle of olive oil and aged balsamic instead.

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