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Capable advocates understand the importance of focus and minimalism. The ability to hone in on the essential matters in dispute is a key to effective advocacy. Through the use of strict time limits, appellate courts impose this discipline on counsel. The misuse of time, for example with lengthy introduction to the issues or regurgitation of the factum, takes away from the force of the presentation.

These controls are largely absent from the rest of the civil justice system. Boilerplate pleadings, requests for every document under the sun and the inability of lawyers to focus their case in trial and motion courts, adds much to the cost and delay in the system. With the Supreme Court of Canada calling for a “culture shift” in Hryniak v. Mauldin, 2014 SCC 7, minimalism is more important than ever.

The culture shift we need is not for new or different procedures to resolve disputes, but rather for lawyers to exercise more rigorous judgment about how much procedure is actually needed in an individual case. It is this exercise of judgment that has the potential to reduce legal costs, to justify the high hourly billings faced by clients and, ultimately, to pay dividends in the form of more effective advocacy.

Hryniak v. Mauldin was about making use of summary judgment to control cost and promote access to justice. I am sceptical of this, however there is much of value in the decision that supports the idea of minimalism more broadly. At para. 28: “The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.” And at para. 32, on the responsibility of lawyers: “Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.”

Justice Paul Perell picked up on these themes in The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2014 ONSC 660 (S.C.J.). Proportionality, he says, requires that lawyers cut down on procedure and exercise judgment:

[88] Proportionality recognizes that perfection is the enemy of the good. Naturally enough, a litigant wants to know everything that might possibly be known to prove his or her case and a litigant wants to know everything about their opponent’s case so as to not be taken by surprise and to be ready to disprove the opponent’s case. But what a litigant wants is not necessarily what he or she needs, and the development and settling of a Discovery Plan should be approached by needs not wants.

[89] And what goes for discovery and disclosure needs must be approached having regard to the proportionality principle that means that a litigant – and more precisely his or her advocate – must be re-cultured to accept that the adversary system needs far less in procedure than a perfectionist and sometimes obsessed advocate might wish for.

If we’re going to be less obsessed, we will have to adopt minimalism and focus on what matters. Minimalism means: (a) deciding what points are important; (b) saying and writing only what’s necessary to put those points into context; and (c) having the courage to discard the rest. This requires hard work and, most of all, judgment. The rewards, in the form of more persuasive presentations and coincidentally a more streamlined system, are substantial.

Our best teachers of advocacy have been saying this for years. In Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums (1999), 18 Adv. Soc. J. No. 2, published in 1999 but still packed with fresh insights, Justice John Laskin talked about “context before details” and “point first writing”, linking it directly to effective persuasion: “With the context, the judge can better absorb and understand the details to follow.”

Justice Laskin’s plea for more careful writing, however, is at its core an argument for focus and minimalism: “Writing concisely is harder than writing at length. But taking the time and trouble to write better will make you a much better advocate for your clients and will enhance your reputation with the court.” The inability to focus itself creates unnecessary cost:

Many counsel list far too many cases in their factums. The Court of Appeal storage area is filled with casebooks cluttered with cases never referred to by counsel. My guess is that over 90% of cases cited in most factums are not referred to in oral argument and are not used in our judgments…

Why are factums too long? Time and fear are two main culprits. We do not take enough time to write a shorter more concise factum, and we are afraid of writing too little or leaving something out. Effective writing requires selection and clear thinking. Conciseness is often a by-product of knowing what your case is about and where you are going.

These insights apply well beyond factum writing. The effects of a lack of focus are perhaps felt most strongly in the length of trials. Here is where judges can play a big role. A good place to start is the antiquated notion that trial judges must walk into court armed only with the pleadings. Thus blinded, judges are at the mercy of counsel to frame the issues and presentation at their leisure. It would be far preferable if the parties were required to file document briefs, facta and authorities, and make them available for a judge’s reading in advance of trial. In consultation with counsel, the judge would then be in a position to narrow the issues.

Hybrid trials are gaining favour and offer savings in trial time. In Bosworth v. Coleman, 2014 ONSC 4832 (S.C.J.), Justice Fred Myers took some helpful steps forward:

[20] Neither counsel has proposed mechanisms to ensure that their clients receive the proportionate, timely and affordable resolution of their dispute that they want. Are all of the painstaking examinations of seven years of medical treatment records really required? Can they not be summarized? Do any proposed in-court examinations involve facts rather than credibility and, if so, might they be conducted out-of-court before the trial? Might it be possible for counsel to conduct shorter, tailored examinations? Might opening and closing arguments be submitted in writing or be made briefly? Can examinations-in-chief be adduced by will-say or affidavit? The latter is often used in trials on the Commercial List while the former is used in nearly all civil trials in the United Kingdom.

[21] The defendants’ counsel submitted that it is the role of counsel to determine if the trial will extend more than 10 days. This is an anachronistic view. Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.

[22] Issues can be limited to those that matter. Examinations can be brief and focused. It may take more work for counsel to prepare a short examination. [1] Any lawyer can raise every possible issue and ask every possible question. It takes little preparation to ask “What happened next?” as one leads a witness through a chronological book of documents. Doing so is easier and perhaps less risky than actually focusing on the key issues and determining a strategy to deal with them briefly and efficiently. Yet, counsel are expected to exercise such judgment for their clients. [2]

[23] At minimum, the culture shift required by the Supreme Court of Canada makes efficiency a key priority in trial planning. It is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate. [3] For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management. This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak, at para. 79.” (Emphasis in original)

The theme running throughout is that of focus and minimalism. We have moved a substantial distance away from these ideals. Undoubtedly, billing targets, the fear of missing something important and inexperience have all played a role in getting us to this point. The result has been an approach of looking under every rock and making maximum use of the elaborate procedures available under the Rules.

Clients are dependent upon lawyers to make the hard decisions about what is needed to bring a case to completion in a cost effective manner. The expectations of more sophisticated clients have changed as well. It is the rare case where a lawyer can justify the need, and cost to the client, of looking under every rock. Fear must give way to proportionality.

No doubt this will place greater demands on the participants in the system. Our system of justice is too precious to demand anything less.

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