1.the ability to make considered decisions or come to sensible conclusions.
I was recently in conversation with a senior and respected lawyer and arbitrator. This individual has been a trial lawyer advocating commercial disputes for over 60 years. During this conversation I lamented the ever decreasing amount of trial time available at the courts for commercial disputes and the ever-growing duration of the average trial.
My colleague mentioned that for a very long time in the past, the average trial only required a few days to litigate through to judgment. That a lengthy trial was considered anything approaching 1 week in duration.
Clearly with 2, 3, and 4 week trials now being norm, I was initially taken aback by the apparent efficiency and simplicity of historical commercial litigation matters.
My colleague mentioned that historically most trials proceeded on fairly narrow issues in dispute, generally agreed upon between the lawyers in advance, with only essential documents. Further there were interventionist judges that made in-trial determinations of what was relevant and what was not and held counsel to these principles.
It became immediately apparent to me that there was at least one main reason why trials have become the bloated and lengthy monsters of present. Professional judgment. As has been discussed by other colleagues before me, the current call of the courts for lawyers to seek proportionality in litigating disputes with reference to costs, is really calling on lawyers to exercise professional judgment.
Lawyers have lengthy post-secondary education under their belt. In addition to some undergraduate education, they are required to attend three (3) years of law school. Thereafter there is a lengthy bar admission process involving some variation of a training component, apprenticeship, and exams.
The entire process is in place to ensure that every lawyer has a baseline background of education and training prior to entering the profession. The idea being that the lawyer will be called upon to apply that education and training in the investigation, researching, and resolution of legal problems.
While most of the substantive law can be found in the written record of legislative bodies, and the courts, and now increasingly available on any smartphone, the legal training afforded a lawyer positions them to be able to think differently. To use logic, reason, and analytical skills to problem solve.
Inherent in this training is the objective of providing lawyers with the ability to exercise reasonably prudent professional judgment.
Increasingly, this last skill set is disappearing or being offloaded by lawyers and judges alike. In the litigation field, the inability or unwillingness to exercise professional judgment results in court cases proceeding to trial on all manner of both relevant and irrelevant issues, documents, and evidence. If a lawyer is unwilling to critically examine its client’s case to determine what is a relevant or key issue or piece of evidence, it results in the lawyer presenting their entire brief to a court, or at discovery. Kitchen sink litigation so to speak. The litigator that declines to exercise professional judgment accepts everything provided to them by their client and resulting from their legal research and throws it at the trier of fact. The trier of fact is then left to sort out the relevant from the irrelevant, the threshold issue from the extraneous, the linchpin documents from the insignificant. The court receives everything and the kitchen sink.
This kitchen sink style of litigation invariably results in longer trials and pretrial procedures, more documents, more witnesses and parties inconvenienced, and in the case of an hourly bill rate, more money for the kitchen sink lawyer.
I regularly encounter this style of litigation in my practice, particularly when dealing with opposing parties and opposing counsel that might enjoy a advantage with respect to the availability of resources (financial or otherwise).
While it may very well be at the client’s direction, or a deliberate litigation strategy to employ those extra resources, I am of the opinion that it does nothing to advance client interests, or the overall objective of adjudication or resolution of disputes.
Further, because judges and masters are appointed from among the ranks of lawyers litigating in the courts, this approach to litigation that fails to exercise professional judgment may find itself sitting on the bench overlooking trials and pretrial procedures. The effect is masters and judges failing to constrain the presentations of the lawyers before them, or to make rulings to deny evidence, arguments, or documents as irrelevant or unnecessary. The lack of intervention from the bench then only perpetuates the kitchen sink approach coming back before them.
The motivations for the kitchen sink approach are many, including fear and money.
FEAR – The fear of failing to properly assess what are the key legal elements of the case requiring adjudication and omitting something resulting in failure at trial. The fear of failing to address a relevant issue, or failing to lead relevant evidence which causes one’s case to fail. The fear of being wrong.
The end result of a fear based approach to litigation is no professional judgment having been exercised, with the litigator throwing everything and the kitchen sink at the court and asking the court to sort it out. “See what sticks”. An offloading of the responsibility to exercise professional judgment on the court.
MONEY – in a typical hourly billing retainer, the lawyer stands to make more money by leaving no stone unturned, no evidence untendered, no argument held back, and no concern for the resources required by the increased duration of preparation and attendance at trial.
Notwithstanding all of this, I venture that there is a better way. An approach that recognizes that with extensive training and experience, those with legal training are best positioned to assess a legal problem and bring forward only those positions, arguments, and evidence that are required to meet the burden of proof for that particular case. Tendering only necessary witnesses, necessary documents, and a focused presentation.
The lawyer that exercises professional judgment provides indispensable service to the client (reduced costs, and higher likelihood of success in court), but also the lawyer meets its professional oath to the court and the profession. No longer acting as blind secretaries to our clients or their cases by bringing forward every document or argument to court, rather the lawyer becomes a critically important client advisor and a professional looked upon for the value of their judgment and not simply their ability to publish legal briefs or examine witnesses.
The toolkit of the lawyer exercising professional judgment to achieve positive outcomes includes the following:
- early and intensive investigation of the facts, evidence, and law related to a legal issue;
- advising and reporting to the client with respect to the facts, evidence, and law that is being considered;
- review of options and strategies for the trial and litigation generally that address the key issues only;
- Courtesy and civility in dealings with opposing parties to establish the necessary rapport to allow free exchange of strategies and ideas for moving the matter through to adjudication efficiently and on key issues only;
- Informal agreements on admissibility, relevance, and joint statements of fact and joint briefs to be filed with the court;
- Requests to Admit to narrow those issues or documents in dispute.
While we all strive for success in our work, I feel it is incumbent on the legal profession as a whole to re-examine our role in the legal process. We should all want to remain highly competent professional advisors to our clients, valued for our considered judgment along with the nuts and bolts skill set we deploy in our daily practice.
Posted by: D. Jared Brown, Lead Counsel, Brown Litigation