Analyzing Issues in Disputes


Analyzing Issues in Disputes

I find it useful to break down the issues in disputes into:

  • factual and evidentiary issues – what happened and how can that be shown
  • legal issues – what does the law say about situations like this
  • financial issues – what are the costs and benefits of various options for dealing with the matters in dispute
  • tactical issues – issues of timing, the sequence of dealing with issues and procedural choices for resolving the dispute
  • emotional issues – how the parties feel about the dispute

Lawyers in dealing with disputes have traditionally focused on legal issues and they have focused on the courts’ litigation procedures. But now, in a time when almost all cases outside court lawyers must also deal with this larger range of issues. Of these different kinds of issues, the emotional issues are often the most important. Lawyers see many cases when the facts, the law, finances, and their tactical considerations all very much against them, but they will not settle. Anger or some other compelling emotion governs what they will do, and that emotion must be given at least as much attention as the other issues if settlement is to be achieved.

Lawyers and others often make the mistake of believing that settlement is, or at least should be, governed by the same rules of evidence, relevance and logic as the legal issues that are the substance of legal analysis and of the court process for adjudicating disputes. But these different sorts of issues have their own dynamics and considerations, especially in the context of negotiations leading to settlement. Lawyers need to be alive to these differences and to expand the range of approaches that they bring to bring to the table. For there is no doubt that the reality is that parties in dispute are affected by all of these sorts of issues and the skill of counsel is often in balancing the particular balance of trade-offs among these factors in coming to a settlement which best meets their clients’ interests.

Defining Our Terms: Why We Call Ourselves “Legal Counsel”


Defining Our Terms: Why We Call Ourselves “Legal Counsel”

“Trial lawyer”
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%. There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled. Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier. The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.

Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society. In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion, see:

Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.

“Litigation Counsel”
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits.
But many claims are resolved without litigation – by negotiation, mediation or arbitration.

“Legal Counsel”
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia.

The functions that are restricted to members of the Law Society [from the definition of “practice of law”, section 1 (1)] include:
a) appearing as counsel or advocate,
b) …
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
d) …
e) giving legal advice;

These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.

Apologies and the Law


Apologies and the Law

It is now generally the case in English speaking Canada that an apology cannot be used in evidence in a civil trial. However this is not true in criminal cases. In 2006, British Columbia enacted the Apology Act, S.B.C. 2006, c. 19, the first such legislation in Canada. Other provinces have subsequently enacted similar legislation so that all provinces except Quebec, New Brunswick and Prince Edward Island now provide similar protections. Such legislation had ample precedents in the United States and in Australia. (For a critical history and analysis of such legislation see the thesis of Graham Barr Disingenuous or Novel? An Examination of Apology Legislation in Canada.

Various grounds were argued as reasons to enact such legislation in Canada. Some argued that such legislation was good social policy in encouraging early and less costly resolution of disputes. Some referred to experience in the U.S. particularly in the field of medical malpractice where early apologies to patients coupled with early and fair offers of compensation had dramatically reduced volumes of litigation and the overall cost of compensating for medical errors. Some argued that making an apology for causing harm was simply the “right thing to do” on moral grounds. Some saw the enactment of such legislation as a step in moving towards less adversarial means of dispute resolution.

It is perhaps early days to assess the extent to which the actual experience in Canada with such legislation shows progress in meeting these aims. However, because criminal law in Canada is exclusively under the jurisdiction of the federal government such legislation would have to be enacted by the federal government before such protections would apply to criminal proceedings. In criminal law, apologies made to a victim of a crime or perhaps to a related person are generally considered to be “admissions” which may be used in court to help prove the guilt of the party making the admission. In some situations where the person to whom the apology is made is considered to have some ability to control the laying of a charge, the more stringent legal rules which apply to the proof of confessions must be met.

In a case before the Supreme Court of Canada last year, the charge was one of sexual assault upon a child by a step father. An apology made in an email to the mother of the child was held by the Supreme Court of Canada to be admissible against him. R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688. Such decisions affirm the obvious point that in criminal matters, the courts are applying rules in the treatment of apologies from the rules that now govern civil matters in most provinces. Those considering the advisability of making an apology will obviously continue to bear this important distinction in mind.