This is not the first time that this question has been asked of me or opposing counsel during one of my files. I understand from colleagues they are also more frequently being asked by the court to account for why they, as capable advocates, are unable to resolve the file and instead are asking for judicial intervention.
While being asked to defend the need for adjudication can be nerve-wracking for some counsel at the outset of a big case, it is becoming a more routine inquiry to confront, particularly during interlocutory phases of a case.
I was surprised the first few times that I was asked by the court why my friend and I had not been able to resolve a file that was “ripe for settlement.” I was able to rest in the confidence that I had canvassed the possibility of resolution (usually at least once) on the long path to court.
However, I have realized the critical need for the courts to be vigilant and fiercely protective over their resources. While counsel may feel an inherent right to access the judiciary as and when we feel it is necessary, we can be certain the courts are far more taxed than us as a result of increased litigation and fewer and fewer resources to mete out justice.
At the present time in British Columbia, it is difficult to obtain trial dates within the next few months even on the most straightforward claims. This is not the fault of the court administration, the judiciary, or counsel. This is simply a current fact of life in a province known for having a healthy and thriving litigation bar.
Counsel are required to advance a client’s case to resolution in as timely a fashion as possible. While this aim can be difficult to achieve without the immediate access to the courts we may have historically enjoyed, the courts are being pressed from all sides. Not only is the judiciary expected to mete out justice in an expeditious, fair, and impartial manner, but they are also required to do so with a speedily growing docket and fewer and fewer resources from the government.
Most, if not all, jurisdictions have rules of court that contain a provision that aims to ensure a fair and efficient outcome to a claim, but with a proportional amount of resources. For example, Rule 1-3(1) of the B.C. Supreme Court Civil Rules states: “The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.”
It is important counsel remember that these are objects rather than guarantees. We need to weigh the monetary amounts at stake and the importance of the issues at play in our disputes. We have an obligation to ensure that the cases we bring to the judge are prepared and organized, and warrant the judicial resources we are requesting for a fair determination.
The onus is on us as trial counsel to assure that our case is not taking up a disproportionate share of the court’s limited resources, bearing in mind the amount involved in the case and the complexity of the case. Counsel are, to some extent, gatekeepers for the courts. If we do our job, the courts can do theirs more effectively.
I have come to understand that being asked by the court why a matter is before it is a means of keeping us true to our obligations. This question regularly reminds me to go back to the object of the rules when assessing my case strategy. I now also treat this question as an invitation to engage in dialogue with the court to try to win over the judge before submissions have even really begun. We, as counsel, should use this request for an explanation as an opportunity.
Rather than setting off on an adversarial tone with the finder of fact trying to justify why you are there, the court’s candor with counsel can be a fantastic segue to highlight the most contentious issues on the file and potentially pre-empt your opponent’s biggest arguments.
So the next time you head into court intent to do battle but are asked why the file hasn’t settled, you might want to consider the following:
1. Use this moment as a segue to punctuate the major issues in the case and your client’s strongest position(s);
2. Be sensitive to the fact this inquiry from the court is a necessary facet of measures aimed at avoiding unnecessary litigation, and to minimize the backlog and delays plaguing the courts and leading to increased litigation costs;
3. While we may feel entitled to get into chambers as quickly as we feel necessary, arguably this is not an absolute right in all cases just by virtue of our status as lawyers. We bear an obligation to assure that we are using our access to justice and our share of judicial resources wisely;
4. Use the opinions of the judge on the appropriateness of settlement where appropriate to bolster your advice to your client on settlement, where appropriate; and
5. Should the case go to trial, rest assured the court is just keeping counsel to its obligation not to use judicial resources needlessly.
Richard B. Johnson is a lawyer with Kent Employment Law in Vancouver. He can be reached at firstname.lastname@example.org