Litigating in the Enlightened Age: Drafting Peadings with Mediation in Mind

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In the enlightened age of mediation, more than of 90% of all lawsuits eventually settle. Good counsel must now see the pleadings in a different light. The Statement of Claim or Complaint is a very …

In the enlightened age of mediation, more than of 90% of all lawsuits eventually settle. Good counsel must now see the pleadings in a different light. The Statement of Claim or Complaint is a very useful marketing tool. If drafted with all of its potential readers in mind, it can go a long way to set the table for a good settlement. Good pleadings also make statement about the expertise and ability of the counsel who drafted them. The authors are experience business litigation lawyers in Toronto, Canada. They use persuasive written advocacy as powerful tools in their winning advocacy arsenal.




















This paper was inspired by an April 2003 presentation by Igor Ellyn at an Ontario Bar Association CLE mediation seminar. The paper entitled “Persuasive Pleadings Promote Settlements Sooner” is still relevant.




















This paper was delivered at Continuing Legal Seminar of the Law Society of Upper Canada in Toronto in November 2009. It is intended for information only and is not legal advice.




















Igor Ellyn, QC, CS is the senior partner of ELLYN LAW LLP Business Litigation & Arbitration Lawyers, a Toronto law firm










specializing in business dispute resolution and international judgment and arbitral award enforcement. He is a Specialist in










Civil Litigation and a past president of the Ontario Bar Association.




















Evelyn Perez Youssoufian is a commercial litigation lawyer at ELLYN LAW LLP Business Litigation & Arbitration Lawyers. She










has practiced law since 2005 and is an LL.B./J.D. graduate of the Faculty of Law, University of Windsor and University of










Detroit Mercy.




















ELLYN LAW LLP Business Litigation & Arbitration Lawyers is a proud member of two prestigious international networks, the










International Network of Boutique Law Firms (www.inblf.com) and the Association of European Lawyers (www.aea.com).




















Please visit www.ellynlaw.com for more information.

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  • See paper pp. 15-16

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  • 1. Drafting Pleadings with Mediation in Mind: Litigating in the Enlightened Age of Mediation Igor Ellyn, CS, QC Evelyn Perez Youssoufian Ellyn Law LLP, Toronto www.ell ynlaw.com © 2009 Igor Ellyn and Evelyn Perez Youssoufian. May not be reproduced without written permission. Ellyn Law LLP - www.ellynlaw.com 1
  • 2. 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 2
  • 3. 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”. Ellyn Law LLP - www.ellynlaw.com 3
  • 4. 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 Ellyn Law LLP - www.ellynlaw.com 4
  • 5. 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 5
  • 6. 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. Ellyn Law LLP - www.ellynlaw.com 6
  • 7. 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 early  The 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 Ellyn Law LLP - www.ellynlaw.com 7
  • 8. The Pre-Trial Conference Another form of mediation  New R.50 has been revamped.  All R.76 cases require a pre-trial conference  All other cases must all be pre-tried with 90 days after setting down for trial  Treat the pre-trial conference like a mediation  Most judges are more mediation conscious than they were a decade ago  Preparation 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 Ellyn Law LLP - www.ellynlaw.com 8
  • 9. A new approach to litigation How is your case most likely to end? Trial? Appeal? - Maybe Negotiated Settlement? – Probably Negotiated Settlement at Mediation – Very likely. How you think about mediation will affect your approach to dispute resolution. Ellyn Law LLP - www.ellynlaw.com 9
  • 10. 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 . . . Ellyn Law LLP - www.ellynlaw.com 10
  • 11. 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 . . . Ellyn Law LLP - www.ellynlaw.com 11
  • 12. 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 Ellyn Law LLP - www.ellynlaw.com 12
  • 13. How to persuade people who can be instrumental to a great result in your case  A marketing approach to pleading  Write 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. Ellyn Law LLP - www.ellynlaw.com 13
  • 14. 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 errors  Vague, unparticularized and difficult to follow  Contain more than one thought per paragraph  Exaggerate or misstate facts  Fail to disclose a reasonable cause of action  Raise remedies without pleading elements Ellyn Law LLP - www.ellynlaw.com 14
  • 15. 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 inapplicable  Claims damages for “pie in the sky” amounts  Claims punitive damages where there is no reprehensible conduct  Claims punitive damages for unreasonable amounts Ellyn Law LLP - www.ellynlaw.com 15
  • 16. 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 Ellyn Law LLP - www.ellynlaw.com 16
  • 17. Preparation and Investigation before Pleading  You can’t “knock off a good Claim in 5 minutes”  Get the full story in detail from the client  Speak to potential trial witnesses  Hire a private investigator sooner where appropriate  Have your client prepare a chronology of key events  Press your client to provide all documents  Consider what documents are likely to exist  E-discovery is crucial – get emails and computer files  Organize and read the documents your client sends  Identify the factual and legal issues in dispute  Do an advocate’s chronology Ellyn Law LLP - www.ellynlaw.com 17
  • 18. More preparation for pleading  Identify the remedies your client hopes for  Identify what can realistically accomplished  Research applicable issues of law now not before trial  Balance 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 Party  Review precedents - but don’t accept them uncritically  Build up your case and weaken the opponents’ case  Don’t forget to adhere to principles of civil advocacy Ellyn Law LLP - www.ellynlaw.com 18
  • 19. 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. Ellyn Law LLP - www.ellynlaw.com 19
  • 20. 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 Youssoufian www.ellynlaw.com © 2009 Igor Ellyn and Evelyn Perez Youssoufian Ellyn Law LLP - www.ellynlaw.com 20