Paralysis of the Court System

Nov 5, 2013

As we move deeper and deeper into the twenty-first century, examples abound of the modernization of industry and the various professions. The medical profession has seen tremendous advances in imaging, diagnostic, and preventative medicine. Engineering and construction have benefited from new materials that are more durable, malleable, and stronger than ever before. Children and students have benefitted tremendously as various Boards of Education utilize digital white-boards, computers in classrooms or libraries, as well as curriculum development designed to spur the greatest possible learning. Even professional sports teams are now using advanced metrics and statistical analysis to achieve greater results.

Each of these industries has been willing to adopt new innovations that make their profession more efficient and able to provide better services. However, notable in its omission from those willing to move forward aggressively, is the legal profession, and specifically the court system. Whereas other industries embrace progress, the court system is very reluctant to deviate at all from its customs. When this makes you the exception, rather than the rule in the twenty-first century, perhaps it is time for lawyers to wonder just why the courts are so reluctant to change or improve upon their practices.

In a typical litigation file, multiple trips to the clerk of the court – whether by process server or not – is an absolute. The claim must be filed, issued, stamped; the statement of defense will be treated likewise. Affidavits of Service, Requests to Clerk, Notice of Intent to Defend, Affidavits of Documents, Third-party claims, Notice of Motion, Confirmation of Motion, Request for Summary Judgment and every other form imaginable throughout the course of a litigation necessitates a trip to the courthouse so that the documents can be filed with a clerk.

This necessitates literally hours of time to be spent waiting on line for your turn to file your documents. Granted, many lawyers use process servers – after all, it is far less expensive to bill your client a flat fee for service as opposed to the lawyer’s hourly rate while waiting around – but simply because someone else is doing the waiting around does not mean there are not efficiencies to be found.

A great way for the Ontario court system to improve upon its stasis would be the introduction of E-filing. If you have an Affidavit of Service, or a Notice of Motion or any other court document to file, it defies logic why that documentation cannot be filed with the court electronically. In most instances, after waiting on line for an interminable length of time, the court staff will very closely scrutinize the document presented, and if there happens to be the slightest hint of error or inaccuracy, they will often reject the document.

Some may see this as a good use of court staff, and a frontline of sorts to ensure that the courts only deal with properly formatted and presented forms; however, that misses the larger point. This same function can be served through e-filing. Just because a document is submitted electronically does not necessitate that the court is going to accept it. It will still be very closely scrutinized by the same staff that sits behind the desk at the court offices.

However, instead of endless lines and hours of waiting, followed by the potential need to make corrections, and repeat the monotony of waiting all over again, if a document is filed electronically, and ultimately rejected, upon notice of that rejection, the lawyer can make the necessary corrections and resubmit the document electronically. Furthermore, E-filing reduces the risk of confidential information being in the hands of too many people, as this would cut out the need for a process server – perhaps more than once if the original document is rejected.

This would not be a novel technology to adopt. Many counties and states throughout the United States allow attorneys to file documents with the county clerk electronically. Closer to home, the Federal Court of Canada issued a Notice in 2009 allowing Electronic Filing of certain documents. Perhaps most convincingly, the Supreme Court of Canada has been using E-filing of appellate materials since Fall 2008, albeit on CD-ROM. Yet the Courts in Ontario refuse to embrace this technology. As front-line court staff will be doing essentially the same work regardless of whether documents are filed electronically or in person, the time and cost savings that is available to the legal profession should be a huge consideration in the adoption of E-filing.

Similarly, when orders from a Judge or Master are finally prepared after an opinion has been reserved, it is incumbent upon the lawyers to attend at the courthouse to receive their copy of the order. Considering every single court has a scanner and access to the internet, it seems almost patently obvious that order should be scanned and e-mailed to the parties involved. This is yet another glaring example of an old-school mentality pervading the legal community, without any tangible benefit being derived.

Another area where the court system should strongly consider updating itself is with respect to consistency. Varying jurisdictions within Ontario may have different practice directions and different rules which govern courts in that jurisdiction. For example, if you wish to have a motion heard in Toronto, and you were to attempt to file the motion using Form 37A, it is likely such a form would be rejected. You would be required to resubmit the form using the Toronto practice directions form. Despite the fact that the information is the same whether on the Toronto form or the general form, as all lawyers know, the courts are sticklers for detail.

Ultimately, no one can force the courts to adopt modern best practices. Yet the courts are not immune to public and repeated pressure. With the calls for change ringing louder and louder, it seems all but inevitable that the courts will adopt some innovative technologies. After all, the legal community is a part of the service industry; we are in the business of providing a valuable service to our customers/clients. When there are obvious ways in which to improve upon the quality of service to our clients, it would behoove the legal industry and the court system to sit up, take notice, and effect some positive change.