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Uncivil litigation.

This column takes a few steps away from its allegiance to the criminal justice system to take a brief look at its sibling, the civil justice system. In particular, and in accordance with the theme of the current issue, namely civil litigation, this article looks at that aspect of the civil justice system. (It is not correct to suggest that civil litigation is all of the civil justice system.)

It has been said by some that the criminal justice system is in bad odour with the general public, and not just with those who are punished through its rigour. Interestingly, though, there appear to be those who consider the civil justice system to be worse. Neither is the case, actually, but it is not hard to reckon why civil litigation might have that bum rap.

The word litigation is related in its source words to the French word lutte, which refers to a battle or war. The word is ancient and refers to that form of organized combat using words rather than weapons in which people would refer to someone else, presumably wise but necessarily authoritative, who would settle a disagreement for them. There have been times when civil and criminal litigation were hard to distinguish from each other, as in the early middle ages when compensation for criminal conduct could be in money paid to the victim. The two forms of court processes eventually parted company, but still have some analogies. Unfortunately, some of those analogies are also still analogous to warfare.

Those who have suffered through what must have seemed endless civil proceedings can understand the comparison to warfare. There are probably few other human-connected endeavours that more resemble such determined and desperate struggles than court proceedings connected to divorce, matrimonial property, custody on the one hand, and division of estates, on the other. It is not for nothing that such events are called, even by lawyers, court fights. It is not for nothing that courts are often compared to arenas where judges must be cautious to avoid getting down where the dust is flying. All lawyers have heard of cases that must have seemed to the people involved to be as protracted and pointless as the Hundred Years' War.

Are delay and hostility the problems with civil litigation, or are they problems of civil litigation? It is the latter which is true, I suggest. Though most people can rightly say that they are caught up through no will of their own in the criminal justice system, it is much less true to say that for civil litigation. One can safely assume that half of the litigants in such proceedings, if not more, have voluntarily gone to the civil courts because they want those courts to get something for them. What that usually involves is the courts taking or keeping that something away from somebody else. In other words, civil litigation is usually a process of loss distribution, where someone is trying to make someone else lose for their own gain in consequence.

Such proceedings, of course, mean loss or gain in the end. Beyond that, though, they usually mean loss for everyone in the meantime. Going forward with litigation almost inevitably involves loss or deprivation for all involved. The stain on civil litigation is usually connected with this. There are, unfortunately, those who spitefully use civil litigation with the intention of inflicting such cost or deprivation on the opponent, even being willing to absorb such cost or deprivation on themselves. There are others who use civil litigation out of malice or greed, hoping for a windfall in the forensic lottery at the end of some proceedings. When one party to a lawsuit has that attitude, it may well infest the case.

It should not be forgotten, however, that civil litigation is usually effective in precisely the way it is supposed to be. The vast majority of civil claims are, in actuality, settled. The end results, if not particularly pleasing to those involved, are at least accepted as rational outcomes. Rarely does anyone come out a total winner. Those which are not settled, and provide the examples usually cited when it is said that civil litigation is a flop, generally involve unreasonable litigants and the comparatively few lawyers who, by temperament or intellect are unsuited to the role of peacemaker, and whose own investment of energy merely increases the hydraulic pressure within the case.

Doubts about civil litigation as a whole should not be generated from the possibility of mindless fractiousness or chicanery by lawyers. Civil proceedings are sometimes seen as a curse, and not a blessing, by people caught up in them; however, they usually are the product of some conduct which ought to have been thought about more carefully beforehand. It is not the fault of civil justice that it has a reason to exist. Civil litigation is still an effective means for dealing with significant disputes, and, indeed, with trends towards trial management by the judges, its future may be somewhat brighter than its past has been.

Criminal justice has been more crisp and expeditious than civil justice mainly because a sort of trial management has always been in place for it -- namely, everything proceeds continuously, future dates are always scheduled, the court is always present at the key events and so on. Moreover, and perhaps most important, there is always one party with a high degree of interest in getting the matter through, namely the crown. Finally, the resolution is imposed at the end. The notion of trial management embodies a recognition by the court and the crown that the particular case is one of a larger body of cases, all of which need to be dealt with fairly and quickly and all of which must be concluded.

Civil litigation is moving increasingly in the direction of trial management with fundamentally similar aspirations. Over the years the jurisdiction of the provincial court in civil matters has been enlarged. The provincial court, by tradition and legal composition, has traditionally been involved with fixing dates for appearances and trials. By the same token, there has been an increase in curial supervision of civil proceedings at the Court of Queen's Bench level. Moreover, a substantial case load is being transferred to what is called Alternative Dispute Resolution, by which parties can agree to deal with their disagreements by what comes down to arbitration and mediation. Beyond this, there may well be types of disputes which are so frequent and of such slight variation in fault that the law should take them directly out of litigation and into some form of nofault assessment and compensation without the consent of the parties. We see that happening too.

Probably no system of civil justice can entirely exclude disputatiousness or hostility. Nonetheless, the alternative to having the several varieties of our civil justice system (as we currently possess) can scarcely be desired. Were there no legal system to address disputes over property, over children, over commerce and so on, the seemingly inevitable occurrence of family breakdown, dishonesty, and disagreement would have no softer answer than survival of the fittest. This would mean that dispute resolution would either favour the obviously more powerful, or would degenerate into the sort of ugly event that the state would have to intervene with criminal justice.

Perhaps the last complaint about civil litigation -- or, at least, such as has been voiced to the writer -- is its unpredictability. The parties to a lawsuit may start off brimming with confidence, but that does not necessarily survive to the end. Over time, the parties begin to realize that the outcome may not be as they initially hoped. For that reason, the humour of such as French author Rabelais resonates with them -- where he described a judge who settled civil cases with dice.

But again, let's be realistic. Any diminution in confidence during civil proceedings is usually attributable to the dawning of a more objective realization of what was involved in the first place -- often contributed to by the sage advice of the lawyers involved. The parties begin to realize that a reasonable judge could well not see the matter the same way they do. This is not a matter of expecting that some faceless judge will roll dice, and thus that the civil justice system is a failure or fraud from the start. What it is in reality is that civil justice, as it works, comes to awaken in the parties the realization that, in any human dispute, no one is entirely right. That is a positive, not a negative, feature of civil litigation.

So let me, as a prosecutor, speak well of civil courts. If we didn't have them, my job would be a lot more difficult.
COPYRIGHT 1996 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

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Author:Jack Watson
Date:Jun 1, 1996
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