Court of Appeal Annual Report for 2009


 

Court of Appeal Annual Report for 2009

This month the Court of Appeal has posted its Annual Report for 2009. So how is the Court of Appeal doing? In fairness, the Annual Report does not seek to answer large questions about the quality of justice. Understandably there is no attempt to assess the quality of the decisions of the Court of Appeal, a task that must be left to academics and others. This report gives the statistics on the operations of the Court of Appeal and includes general updates on the operations of the Court and the Court’s plans for the present year.

The number of appeals are down from their level of say five or ten years ago. This is consistent with the decline in the number of trials in British Columbia and elsewhere. Without doubt one of the main causes for decline in use of the courts has been the cost of legal representation. The Court is mindful of this issue. It backs the pro bono duty counsel thatappear in the civil Chambers. The report also notes that the number of civil appeals heard with at least one self-represented party more than doubled from 2008.

The financial burden of seeking redress in the courts is a well known issue for the government and for the Court but the government has not gathered specific data on these costs. Research is needed to measure the costs of litigation including appeals and to put those costs in a meaningful context, as for example by comparison to average family incomes and cost of living data. So too there should be more data gathered on the speed at which appeals are determined. The Annual Report does not report on the average length of time that it takes to have an appeal determined from beginning to end although it would seem that this data is available.

The court tracks the numbers of appeals disposed of compared to the number of new filings, and this figure hovers near 100% so that the Court is not falling behind in its work. The Annual Report also notes that decisions are handed down within six months of hearing in 84% of the civil appeals. However the longer delays may occur between the Notice of Appeal and the time of hearing.

On the criminal side, the Court has on May 14, 2010 announced a pilot project to establish a new regime to ensure that conviction and acquittal appeals are heard within one year of the filing of the notice of appeal. The pilot project has been developed in consultation with representatives of the federal and provincial Crown, defence bar and the Legal Services Society. The project is going to be monitored and feedback from those involved in the project will be obtained for consideration by the Rules Committee of the Court. Such a process provides a useful model to improve the civil side as well.

It is important to keep in mind that disputes in British Columbia are overwhelmingly resolved through negotiations. Only a very small fraction of disputes, perhaps on the order of one in a thousand disputes make it to the Court of Appeal. Although quite properly the Court’s immediate focus is on the cases before them, by far the greater influence on justice flows from the indirect effect of the Court’s judgments on other disputes. To the extent that the Court’s deliberations are predictable, principled, economical, and swift they will favour principled resolution of disputes throughout the province. Conversely where the result in court is unpredictable, or a result comes only after burdensome expense and delay, justice suffers. These realities are generally clear to all those who have had first hand experience of civil disputes in the province.

But improvement in the cost, speed, and level of public satisfaction will come only through initiatives which set specific goals and which monitor progress towards those goals, as for example with the criminal pilot project. It may be too much to expect that an Annual Report of the Court of Appeal should fulfill that function, but perhaps this could be undertaken by the government. There is no doubt that there would be a significant benefit from such an effort.

Corporate Perspectives on Business Conflict Management


 

Corporate Perspectives on Business Conflict Management

I had the honour of participating in a panel presentation on “Corporate Perspectives on Business Conflict Management” to the International Bar Association Conference in Vancouver on October 5, 2010. This panel was chaired by F Peter Phillips of Business Conflict Management LLC, Montclair, New Jersey, USA and Jane Player of Bird & Bird LLP, London, England. The panel also included presentations by Roland Schroeder, Senior Counsel Litigation and Legal Policy, General Electric Company, Fairfield Connecticut, David H. Burt, Corporate Counsel, E.I. du Pont de Nemours and Company, David Talbot of Coca-Cola Enterprises of Boise Idaho, Albert Hilber of Swiss Reinsurance America Corporation, Armonk New York, and Patrick Green of Henderson Chambers and Resolex, of London, U.K.

The focus of most of the submissions on the panel was on techniques for the management of disputes in order to achieve economic savings. It was generally noted that the adoption of such dispute management programs also helped improve key business relationships and thus, the reputation and trust in the business enterprise. A striking example of efficiency was illustrated in the presentation of Patrick Green. He spoke of the U.K. company that he founded, Resolex which provides a project dispute management service which, for example, on a construction project would resolve disputes as they arise in “real time.”

My remarks were entitled “Dealing with Disputes: from Litigation Management to Dispute Management to Relationship Management”. The presentations on behalf of leading companies such as those represented on the panel reflected these shifts in emphasis. Without exception, the speakers maintained that their companies had moved far beyond the management of litigation in their approach to disputes, although that remains an important aspect of their professional responsibilities. Current practices generally focus on dispute management, i.e. to the careful handling of disputes with a view to optimizing the outcomes of those disputes with a view to minimizing unnecessary waste of time, and money.

Best practices integrate yet a further dimension of analysis, i.e. how to best manage the key relationships of the business with a view to strengthening those relationships, developing mutual trust, and thus, creating an environment where disputes are worked out as part of the business relationship before they get ugly and turn into costly, time-consuming conflicts. At the conference, I urged open recognition and express careful handling of the emotional component of disputes and in the improvement of those relationships based on adherence to core values of mutual respect, truth and integrity.

-Bill MacLeod

Online Dispute Resolution


 

Online Dispute Resolution

It was my privilege to take part in an important international gathering of experts in dispute resolution and online systems on November 2 and 3, 2010 in Richmond, British Columbia. The meeting was an opportunity for the development of proposals for an international system of online dispute resolution particularly geared to small value consumer to consumer or business to consumer disputes. The communiqué and links to the conference materials are here. The development of internationally-recognized standards for dispute resolution which was the topic of this conference, is the subject of ongoing consultations at the United Nations Commission on International Trade Law (UNCITRAL), the links to which are here.

I would particularly like to thank David Bilinsky of the Law Society of British Columbia for his important role in organizing this conference and for inviting me to take part in this important work which has prospects of transforming both international and national methods of dispute resolution.

-Bill MacLeod

Predictive Coding


 

Predictive Coding

How are we ever going to manage the enormous volumes of electronically stored information that need to be reviewed for many of today’s legal disputes? One of the most promising technologies to handle this task is “predictive coding “of electronic documents. What this means is that through the use of skilled reviewers to take random samples of the electronic documents and to code those, that the software “learns” what is relevant and what is not, so that after a statistically valid sample of the documents is coded, the computer software can very quickly and accurately replicate the choices made by the reviewers on the remainder of the database.

The results from the use of this technology are now as good as the document reviews by teams of human reviewers, while the costs are a very small fraction of the cost of human reviewers. See for example Herb Roitblat, Is Predictive Coding Defensible? This is very good news for clients facing the enormous costs of electronic document review on large cases.