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Drafting Pleadings with Mediation in Mind:

Litigating in the Enlightened Age of Mediation

Igor Ellyn, CS, QCEvelyn Perez Youssoufian

Ellyn Law LLP, Toronto

www.ellynlaw.com

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


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.


Amendments to the Rules of Civil Procedure – Jan. 1, 2010 - #1

Nov. 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”.


Amendments to the Rules of Civil Procedure – Mandatory Mediation - #2

All 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 cases R. 64 Mortgage Actions Construction Lien Act action except trust claims BIA actions


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.


Oral and Documentary Discovery

R. 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.


You know there will be a mediation, so plan for it.

It’s 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 wasn’t 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


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 brief

A good pleading is a head start on a good pre-trial memo


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.


Pleadings: An important marketing tool

You 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 . . .


Important people to persuade with a good Claim or Defence

Other lawyers, law clerks and students in your firm Your client Members of your client’s family Members of your client’s corporate management The client’s in-house counsel or corporate solicitor Your referring lawyer The opposing party or parties Members of the opposing party’s family Members of the defendant corporation’s management Opposing party’s counsel and others in her/his firm The defendant’s insurance adjuster and insurance claims manager But that’s not the whole list . . .


Important people to persuade with a good Claim or Defence #2

The mandatory mediator at a pre-discovery mediation The Master at a motion or case conference The judge or master on pleading or particulars motions The judge or master on a motion for summary judgment The master on a post-discovery refusals motion The settlement conference or pre-trial conference judge The private mediator at a post-discovery mediation The judge at in-trial settlement conference The trial judge – 2 to 3% of the time The judges of the Court of Appeal – 1% of the time 24 potential readers – even if there is only one per group


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 “that”Follow the Rules of pleading. Read Perell J.’s masterful

article on Essentials of Pleading Don’t plead evidence. Don’t plead argument.Know the test you have to meet to prove your case.Don’t overstate your client’s case.Eye appeal. Fonts. Margins. White space. ¶¶ spaces.Proofread. Edit ruthlessly. Have someone else proof.Remember, you’re not only promoting your client’s case,You are also promoting yourself as advocate.


Examples of bad pleadings

Lack eye appeal due to fonts, set up, lack of white space, margins and paragraph space

Too 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


More examples of bad pleadings

Allegations just to anger opposing parties (unless true) Alleges without particulars or unprovable “facts”Alleges 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


Your client doesn’t want to go to trial

Even client who “will never settle” doesn’t 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 mediation

“Intimidate” with good advocacy and early preparation


Preparation and Investigation before Pleading

You can’t “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 sends Identify the factual and legal issues in dispute Do an advocate’s chronology


More preparation for pleading

Identify the remedies your client hopes for Identify what can realistically accomplishedResearch applicable issues of law now not before trialBalance your client’s hopes with what is achievable Identify causes of action and the right “test” Identify applicable statutes, rules and maxims Identify all defences, incl. 2-year limitation periods Consider Crossclaims, Counterclaims and Third PartyReview precedents - but don’t accept them uncriticallyBuild up your case and weaken the opponents’ caseDon’t forget to adhere to principles of civil advocacy


Quotable quotes about mediation

“Good 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.


Conclusion

Our 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

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