Understanding the Litigation Process

by John D Waddell, QC

A Client’s Guide to Litigation serves a need which was artfully described in the Guest column of BarTalk, October 2005 edition, authored by Ms. Diana Lowe, Executive Director of the Canadian Forum on Civil Justice and entitled “What does the public really want from their lawyers and from the justice system?” In her article, Ms. Lowe quotes a represented litigant in a motor vehicle action:

“It would have been very nice if I could just go to court and type in somewhere or ask somebody what to expect based on what happened to me. Give me ten sheets of examples of this happening to someone else and I can just read through it. In month three this happens, in month four this happens. Just so that you are not sitting around and getting random phone calls at random times giving you updates, but you have no idea what the process is.”

Into that breach steps David Roberts, QC.

Its Preface sets out the purpose of the Guide: “On the principle that “knowledge is power” it should create a better informed client who will, in consequence, be of more help to their lawyer as the lawsuit progresses.” There is, therefore, a mutuality of benefit to lawyer and client which should motivate those in the profession to purchase and distribute this book.

The chapter headings of the Table of Contents are conceived to suit the purpose of the Guide. “Avoiding Litigation,” “When Litigation Starts,” “The Court Structure,” “Publicity and Discussing the Case with Others” and “How to Help your Lawyer” are examples. The chapter titled “The Right to a Second Opinion and How to Change Lawyers” might be seen as subversive to the interests of lawyers, but this sage advice to the client will assuage any such concerns:

“Be polite, firm and pay his bill immediately. You can always have it assessed later (see ch. 5). Thank him for what has been done so far and take the file away with regret and not in anger.”

Ah, if it were always so.

Other chapter headings portray the almost unavoidable shortcoming of the Guide. The lay reader is still left to wrestle with the nomenclature of the adversarial process: “Examination for Discovery,” “Discovery of Documents,” “Chambers Applications,” “Pleadings,” etc. While each step is admirably described in the body of the chapter, the language remains highly literate. This book will be most useful to a client who comes to the game with a grasp of linear logic, and a solid vocabulary. Despite its lean and efficient organization, the Guide will still pose a challenge to the unsophisticated client hoping for a quick and simple explanation.

As a consequence, the Guide’s best use will be for those clients with whom the lawyer has an ongoing relationship and who can use the book as a ready reference in the course of one or more cases. In that way, the book can be digested casually, and with contentment.

A final comment on the cover graphic by Anne-Marie Harvey whose caricatures, not surprisingly, grace the monthly covers of The Advocate. When you have a copy of the little book in hand, take note of the facial expression of the judicial figure depicted. In that face you might see expressed the mixed emotions of the litigation process: interest, fatigue, exasperation, respect and, hopefully, dignity.

Client's Guide to Litigation: Understanding The Litigation Process, By David Roberts, QC Vancouver/West Vancouver: CBA - B.C. Branch/Pilot House Publishing, 2005. 76 pages, $19.95 (with discounts for CBA members and bulk purchasers). Reviewed by John D. Waddell, QC

This article was published in the December 2005 issue of BarTalk. © 2005 The Canadian Bar Association. All rights reserved.