Should you institutionalize those days where the court gets educated in certain areas?
I think it’s a good idea. We do have them from time to time. You have to be careful that you’re not being instructed in some issue that is currently before the court or about to reach the court. But I think this exercise in nanotechnology was exceptionally useful because you were not only exposed to the substance of what they were doing but what they thought about what they were doing.
We talk about evidence. Scientists do too. But we don’t mean the same thing. To them, it’s some support for a hypothesis. For us, its probative to a result in the lawsuit. You have to somehow get on the same page with areas of controversy in society at large that the lawyers are not expert in. One of the great advantages and joys of being a lawyer is you get into all sorts of areas other than the law because you are constantly dealing with other people’s problems that bring you into their world. I think the courts have to be more systematic. I think the courts recognize they have to be more systematic. And, of course, one of the issues we haven’t discussed is this whole business of alternative dispute resolution. The courts have to offer a credible alternative to the parties saying, ‘Well, let’s get three nanoscientists on a panel of arbitration and they’ll decide.’ Because they might know the science, but they know nothing about the law. You got to bring these worlds together.
What sort or problems do you see with access – it goes beyond simply lawyers charging too much? Are there any particular reforms to court system that we ought to direct ourselves to?
I think there is enough fault to go around. I think that lawyers expand disputes way beyond what it’s worth because they want to win the case and they don’t know whether this avenue they are abandoning might, in fact, lead to the winning piece of evidence or the winning argument. So, they will push the envelope on pre-trial arguments or pre-trial disclosure or pre-trial discovery or Charter applications and motions as far as they can in hopes of finding the pot of gold that will get the result they want.
Judges, on the other hand, are very concerned about cutting off potential avenues of getting to the right result.
The problem is, that in attempting to get to the right substantive justice, you work a procedural injustice. Because if I have a Volkswagen problem, I can’t afford a Rolls-Royce solution.
The trial judges are concerned. We had a criminal case a couple of years ago where they had spent something like 130 days on pretrial motions. It wasn’t that complicated a case. At least, it didn’t appear to be once it got to us. But the trial judges are concerned that well, if I cut the lawyers off, the court of appeal is going to reverse me and send it back for a new trial. Better to sit here and listen.
I think that eventually, trial judges have to take back control of the courtrooms and I think they’ll only do that if they are confident they will be backed up by the appellate courts. Personally, I think that we may reach the point they have in some of the states south of the border, where they tell people you have three weeks to try this case: ‘I don’t care what witnesses you call. I don’t care how you go about it. I’m telling you that after three weeks, I’m out of here.’
It started with jury cases in criminal matters. It expanded to jury cases in civil matters. I gather it is now broadly done in judge-alone cases, and it works. Because the lawyers say, ‘I’d like to argue about a hundred issues, but if I’ve only got a week and a half of the three weeks, then I’d better pick four or five of real significance and then call my evidence on those issues. And my learned friend will do the same and we’ll have a compressed, highly focused trial on the issues on which we, the lawyers, agree ought to be the fulcrum on which the case turns.’