Drafting Pleadings With Mediation in Mind Litigating in the Enlightened Age of Mediation

Ellyn Law LLP - www.ellynlaw.com*Drafting Pleadings with Mediation in Mind: Litigating in the Enlightened Age of Mediation

Igor Ellyn, CS, QCEvelyn Perez YoussoufianEllyn Law LLP, Toronto

www.ellynlaw.com

2009 Igor Ellyn and Evelyn Perez Youssoufian. May not be reproduced without written permission.

Ellyn Law LLP - www.ellynlaw.com

Ellyn Law LLP - www.ellynlaw.com*Our overriding theme

Good advocacy begins with excellent and persuasive pleadings.Excellent and persuasive pleadings require an insightful appreciation of the litigation process and the new Rules of Civil Procedure which come in to effect on January 1, 2010.Persuasive pleadings must, more than ever, be drafted with mediation in mind.


Ellyn Law LLP - www.ellynlaw.com*Amendments to the Rules of Civil Procedure Jan. 1, 2010 - #1Nov. 2007 - Civil Justice Reform Project under the able chairmanship of former Ontario Associate Chief Justice Coulter A. Osborne

Recommended better and less expensive access to the Courts with more mechanisms to promote early settlement.

Most of the amendments make it easier to take a case off the litigation track and put it on a mediation track.


Ellyn Law LLP - www.ellynlaw.com*Amendments to the Rules of Civil Procedure Mandatory Mediation - #2All cases in Toronto, Ottawa and Windsor will be subject to mandatory mediation except R. 24.1.04(2) except for

Estate, Trust and Substituted Decisions Act cases Insurance Act, s.258.6 mediation cases if mediation took place less than a year before first defence Commercial List casesR. 64 Mortgage Actions Construction Lien Act action except trust claimsBIA actions


Ellyn Law LLP - www.ellynlaw.com*Amendments to the Rules of Civil Procedure Mandatory Mediation - #3

All simplified rules cases in Toronto, Ottawa and Windsor are subject to mandatory mediation.

Ceiling for simplified rule cases increases to $100,000.00

Flexibility as to timing of mediation: R.24.1.09(1): can take place up to 120 days after 1st defence

Mediation can also be postponed if necessary.


Ellyn Law LLP - www.ellynlaw.com*Oral and Documentary DiscoveryR. 29.01: Counsel must agree and update, a discovery plan, including when Aff. of Docs will be exchanged. Failure to agree may result in a costs penalty.

R. 31.05.1(1): 7-hour time limit per party for oral discovery. Simplified Rules cases: 2-hours total discovery regardless of number of parties.


Ellyn Law LLP - www.ellynlaw.com*You know there will be a mediation, so plan for it. Its nearly a certainty that there will be a mediation in your case unless

The case settles very earlyThe plaintiff gives up The defendant becomes insolvent There is so little at stake that it wasnt worth suing anyway The parties have a business or personal reason to stop litigating

Your pleading is the first step in the preparation of your mediation memorandum


Ellyn Law LLP - www.ellynlaw.com*The Pre-Trial ConferenceAnother form of mediation New R.50 has been revamped. All R.76 cases require a pre-trial conferenceAll other cases must all be pre-tried with 90 days after setting down for trialTreat the pre-trial conference like a mediationMost judges are more mediation conscious than they were a decade agoPreparation for the pre-trial conference involves a good pleading; a thoughtful, succinct, well-organized memorandum and briefA good pleading is a head start on a good pre-trial memo


Ellyn Law LLP - www.ellynlaw.com*A new approach to litigation

How is your case most likely to end?Trial? Appeal? - Maybe Negotiated Settlement? ProbablyNegotiated Settlement at Mediation Very likely. How you think about mediation will affect your approach to dispute resolution.


Ellyn Law LLP - www.ellynlaw.com*Pleadings: An important marketing toolYou never get a second chance to make a first impression: it applies to lawsuits too!Who is your target audience when drafting the Claim or Defence? Trial judge? Yes, but only about 3% of the time. Court of Appeal, even less. But there are about 25 or more other people you should be thinking about . . .


Ellyn Law LLP - www.ellynlaw.com*Important people to persuade with a good Claim or Defence Other lawyers, law clerks and students in your firmYour clientMembers of your clients familyMembers of your clients corporate managementThe clients in-house counsel or corporate solicitorYour referring lawyerThe opposing party or partiesMembers of the opposing partys familyMembers of the defendant corporations managementOpposing partys counsel and others in her/his firmThe defendants insurance adjuster and insurance claims managerBut thats not the whole list . . .


Ellyn Law LLP - www.ellynlaw.com*Important people to persuade with a good Claim or Defence #2The mandatory mediator at a pre-discovery mediationThe Master at a motion or case conferenceThe judge or master on pleading or particulars motionsThe judge or master on a motion for summary judgmentThe master on a post-discovery refusals motionThe settlement conference or pre-trial conference judgeThe private mediator at a post-discovery mediationThe judge at in-trial settlement conferenceThe trial judge 2 to 3% of the timeThe judges of the Court of Appeal 1% of the time24 potential readers even if there is only one per group


Ellyn Law LLP - www.ellynlaw.com*How to persuade people who can be instrumental to a great result in your caseA marketing approach to pleadingWrite well. Succinct sentences. Clear thoughts. Single thought paragraphs. No passives. Drop thatFollow the Rules of pleading. Read Perell J.s masterful article on Essentials of Pleading Dont plead evidence. Dont plead argument.Know the test you have to meet to prove your case.Dont overstate your clients case.Eye appeal. Fonts. Margins. White space. spaces.Proofread. Edit ruthlessly. Have someone else proof.Remember, youre not only promoting your clients case,You are also promoting yourself as advocate.


Ellyn Law LLP - www.ellynlaw.com*Examples of bad pleadings

Lack eye appeal due to fonts, set up, lack of white space, margins and paragraph spaceToo wordy. Contain spelling or grammar errorsVague, unparticularized and difficult to followContain more than one thought per paragraphExaggerate or misstate factsFail to disclose a reasonable cause of actionRaise remedies without pleading elements


Ellyn Law LLP - www.ellynlaw.com*More examples of bad pleadings

Allegations just to anger opposing parties (unless true) Alleges without particulars or unprovable factsAlleges fraud which makes liability insurance inapplicableClaims damages for pie in the sky amountsClaims punitive damages where there is no reprehensible conductClaims punitive damages for unreasonable amounts


Ellyn Law LLP - www.ellynlaw.com*Your client doesnt want to go to trialEven client who will never settle doesnt want to go trial

Some cases will still go to trial but not many

A 2008 US study of > 2300 cases found >60% of refused offers had worse results at trial

Focus on getting best result not on reaching trial

Early preparation (pleadings, law, documents, witnesses, experts) could mean less compromise at mediationIntimidate with good advocacy and early preparation


Ellyn Law LLP - www.ellynlaw.com*Preparation and Investigation before PleadingYou cant knock off a good Claim in 5 minutes Get the full story in detail from the clientSpeak to potential trial witnesses Hire a private investigator sooner where appropriateHave your client prepare a chronology of key eventsPress your client to provide all documents Consider what documents are likely to existE-discovery is crucial get emails and computer filesOrganize and read the documents your client sendsIdentify the factual and legal issues in dispute Do an advocates chronology


Ellyn Law LLP - www.ellynlaw.com*More preparation for pleadingIdentify the remedies your client hopes for Identify what can realistically accomplishedResearch applicable issues of law now not before trialBalance your clients hopes with what is achievableIdentify causes of action and the right testIdentify applicable statutes, rules and maxims Identify all defences, incl. 2-year limitation periods Consider Crossclaims, Counterclaims and Third PartyReview precedents - but dont accept them uncriticallyBuild up your case and weaken the opponents caseDont forget to adhere to principles of civil advocacy


Ellyn Law LLP - www.ellynlaw.com*Quotable quotes about mediationGood preparation opens the mind to possibilities and possibilities are the lifeblood of mediation. S. Mutch, Preparing an effective mediation brief makes sense The Lawyers Weekly, Vol. 22, No. 44, March 28, 2003, p.13

Mediation is a cornerstone of the justice system in this province. Ontario Chief Justice Warren Winkler, April 21, 2008.


Ellyn Law LLP - www.ellynlaw.com*ConclusionOur time is up. Thank you to Evelyn Perez for enlightening on the new Rules relating to mediation.Thank you to Justice Paul Perell for permitting me to share his article on Essentials of Pleading with you. Thank you to Master Don Short for his 2003 inspiration to think about drafting pleadings with mediation in mind. Thank you for your attention.

Igor Ellyn Evelyn Perez Youssoufianwww.ellynlaw.com 2009 Igor Ellyn and Evelyn Perez Youssoufian


*******See paper pp. 15-16*************

Drafting Pleadings With Mediation in Mind Litigating in the Enlightened Age of Mediation

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