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Motivations for changes
The problem is the continuing arms race between the sides as the law and technology develop. Cases are huge and sprawling precisely because the system allows it, with no corresponding qualitative improvement in the results.
Further, the current system looks increasingly like a case of the blind tying up the astigmatic and kicking them over a precipice and calling it leading, an uninformed attempt to micromanage what was intended to be a self-regulating system. I've noticed in my own practice that the formalism and delays lead to a significant amount of posturing, bullying, evasion and generally lawless behaviour to try to force a settlement when neither side wants to be dragged through the process of getting an actual adjudication.
Discard the perfectionism and trust each party to get their own case as good as they can.
Focus is on getting one's case ready for trial, subject to a brief opportunity to formally canvass settlement possibilities.
Keep the onus on the plaintiff to prove its case.
Very limited discovery of opposing side's documents. A party should not be forced to aid the other side in proving its case.
Relatively draconian time limits intended to keep things moving. (NB: Our statute of limitations has a default of 2 years from the discovery of the claim, to a maximum of 15 years from the act or omission.)
No oral examination for discovery. Impeachment by prior inconsistent statement can be done the old fashioned way.
Left undefined: chambers and requisition procedure; costs consequences of offers. These can be left for the court to fill in, or the current systems can be used (however uncomfortably).
Overriding rule
Subject to these rules and the applicable law, the court has unfettered discretion and inherent jurisdiction to make any order or direction and conduct any hearing in any manner it sees fit, with the aim of ensuring as just and speedy a resolution of a matter on the merits as the circumstances allow.
( Read more... )
The problem is the continuing arms race between the sides as the law and technology develop. Cases are huge and sprawling precisely because the system allows it, with no corresponding qualitative improvement in the results.
Further, the current system looks increasingly like a case of the blind tying up the astigmatic and kicking them over a precipice and calling it leading, an uninformed attempt to micromanage what was intended to be a self-regulating system. I've noticed in my own practice that the formalism and delays lead to a significant amount of posturing, bullying, evasion and generally lawless behaviour to try to force a settlement when neither side wants to be dragged through the process of getting an actual adjudication.
Discard the perfectionism and trust each party to get their own case as good as they can.
Focus is on getting one's case ready for trial, subject to a brief opportunity to formally canvass settlement possibilities.
Keep the onus on the plaintiff to prove its case.
Very limited discovery of opposing side's documents. A party should not be forced to aid the other side in proving its case.
Relatively draconian time limits intended to keep things moving. (NB: Our statute of limitations has a default of 2 years from the discovery of the claim, to a maximum of 15 years from the act or omission.)
No oral examination for discovery. Impeachment by prior inconsistent statement can be done the old fashioned way.
Left undefined: chambers and requisition procedure; costs consequences of offers. These can be left for the court to fill in, or the current systems can be used (however uncomfortably).
Overriding rule
Subject to these rules and the applicable law, the court has unfettered discretion and inherent jurisdiction to make any order or direction and conduct any hearing in any manner it sees fit, with the aim of ensuring as just and speedy a resolution of a matter on the merits as the circumstances allow.
( Read more... )