In my last blog, which introduced the coming changes to discovery practice under the new Supreme Court Civil Rules, my focus was document production. In Karen Redmond’s recent blog, she discussed the possible negative consequences of new restrictions to be placed on the use of written interrogatories.

The other key tool in the discovery process is the oral examination, which is my focus today.

According to the Civil Justice Reform Working Group (CJRWG), feedback from litigants and other members of the public brought to light that our civil justice system was perceived as “too expensive, too complex and too slow.” The CJRWG concluded that excessive oral examinations contribute to these problems, primarily because there are no time limits imposed on the examiner. Theoretically, a person could be subjected to several days of questioning, with much of that ‘evidence’ never to see the light of day at trial. Not surprisingly then, a lengthy oral examination process can add dramatically to the cost of litigation without necessarily advancing resolution of the dispute. To curb this, under new Rule 7-2 the total duration that a person can be examined is limited to seven hours, unless that person consents. But in the case of someone who is unresponsive, evasive, or gives lengthy, irrelevant answers ( which in my experience happens more often than you might expect), the examiner may have no option but to obtain a court order to extend the time in which to question that person. That in itself would compound costs and delay the process.

A good move in my view, again with the objective of limiting the duration of the oral examination, Rules 7-2 (23) and (24) formalize a common practice that exists now. Quite often the person examined may not know off hand the answers to some of the questions that arise in the examination, such as names and addresses, or have documents in hand that have relevance to the case, but can certainly gather that information or documentation given the time to do so. Instead of adjourning and rescheduling the examination for continuation at a later date, the examiner can request, by letter, that certain questions be answered, in turn, by letter. Those questions and their responses are deemed to be as if given under oath in the examination itself.

I had contemplated (and really did plan on) tackling the ins and outs of the pending new Supreme Court Rules dealing with oral examinations, but on this Christmas Eve Day, the topic just doesn’t feel ‘topical’. Instead I came across an article from yesterday’s Edmonton Journal with the headline, “Family court crowded at Christmas: Parents look to sort out holiday schedules,” that had resonance. As Alexandra Zabjek writes, “It is an annual rush. Every year, family courts experience a surge of cases in the days leading up to the holidays.” I know that unfortunate story. As a family law paralegal, what I often fear about the Christmas Season is facing that ‘annual rush’, the possibility of moms and dads trying to secure Christmas access. Despite the outcomes of such disputes, feelings of disappointment, guilt and loss are felt inevitably by parents and children alike. The old adage that “no one wins” seems never so true.

Whether we spend more or less than last year on gifts for family and friends is less significant than the expectation that the holiday season will bring family and friends closer together. We have been inculcated with the message that Christmas is all about peace, happiness and love. Sadly, that expectation creates heightened challenges and distress for the separated or divorced family, especially if arrangements for access over the holidays were not made well in advance. Even when parents have an existing access agreement or order in place, that is no guarantee disputes between them will not materialize, perhaps because the children themselves would rather spend Christmas Day with the ‘other parent’.

I have hope that this holiday season will be a quiet one – so far so good. If I could make it so for everyone, of course I most certainly would.

So should I close off by wishing all of you a Happy, Peaceful Holiday Season? Sure, I just can’t help myself!

In the weeks to come, I will explore key aspects of the new Supreme Court Civil and Family Rules that will come into effect in British Columbia on July 1, 2010. The current rules governing the discovery process, including the production of documents and oral examinations, were among those targeted for revision.

Existing Rule 26 outlines the process by which a party can discover and inspect documents. A party can prepare a Demand for Discovery of Documents (often combined with a Notice to Produce) that, once delivered to another party, starts the clock ticking, requiring the recipient to prepare and deliver a list of documents within 21 days (in practice a strict deadline is often neither observed nor enforced). One difference found in the new Civil Rules, which falls within Part 7, “Procedures for Ascertaining Facts,” is the provision that each party must prepare and serve on all other parties of record a list within 35 days at the close of the pleading period, thereby eliminating the need for a formal demand.

Of greater significance, the new rule attempts to narrow the scope of document production by stipulating that the list must set out all documents that can prove or disprove a material fact at trial and all others that the party intends to use at trial. Compare this to our current rule which requires a party to list the documents “relating to every matter in question in the action.” How can relevance be assessed in this context? In practice, the test for discovery has been the 19th century Peruvian Guano case (The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Co. (1882), 11 Q.B.D. 55). Under that test, the scope of possibly relevant documents is so broad that what can or should be disclosed is potentially limitless. The new Civil Rule 7-1 reflects the conclusion of the Civil Justice Reform Working Group that adherence to that test is no longer viable given the greater complexity of modern litigation and the prevalence and proliferation of electronic data. In the absence of a new standard for discovery, existing practices have become a barrier to resolving disputes in a cost-effective and timely manner. Yet only time will tell whether the intent of the new rule will effect tangible change to current litigation practices.

The broad scope given to the question of relevance has also impacted practices governing oral discovery. Next time, I will look at how the new rules address the use of interrogatories and examinations for discovery.

More than 20 years have passed since graduating from my paralegal program in Ontario.   After deciding to relocate to British Columbia four years later, I found myself starting at the ground up, feeling disillusioned that none of the lawyers I had interviewed with seemed to grasp what I had to offer.  But I was young, optimistic and glad to be working.   It has been a long haul finding an environment in which I am given the trust and latitude to do what I do best.   Yet I continue to be surprised that so many lawyers fail to recognize the benefits that can be gained by effectively leveraging the skills of talented paralegals and other legal support professionals.    Considering our current economic climate and cost-sensitive consumers, delegating effectively is key to achieving a competitive advantage.

In contrast to other provinces, Ontario, for example, certain tasks and functions that sensibly should be delegated to paralegals are currently prohibited in British Columbia.    This issue has been explored by the British Columbia Law Society’s Paralegal Task Force.  In 2003, the Benchers asked the Task Force to consider whether the Professional Conduct Handbook should be revised to permit an expanded role for non-lawyer employees and to frame the appropriate qualifications of those employees.   An interim report was made in 2005.  The final report to the Benchers of April 2006 (which can found on Law Society website) formulated a definition of a paralegal as “a non-lawyer employee who is competent to carry out legal work that, in the paralegal’s absence, would need to be done by the lawyer.   A lawyer must be satisfied that the paralegal is competent by determining that one or more of the paralegal’s training, work experience, and education is sufficient for the paralegal to carry out the work delegated.”   While Chapter 12 of the existing Professional Conduct Handbook does include certain principles of delegation to legal assistants (i.e., paralegals), the Task Force concludes that additional functions can properly be delegated to paralegals in the interests of the profession and the public.   If the recommendations of the Paralegal Task Force were implemented (which would require revision of the Professional Conduct Handbook), a paralegal could perform advocacy work on a client’s behalf, for example, or appear in the Small Claims Division.

Yet lawyers need not wait to get more out the human resources available to them now.    Clients will benefit from receiving cost-effective, high quality legal services.   Employees will benefit from the expectation and challenge of greater responsibility.    The ‘how’ can be gleaned from a number of publications that offer guidance, including Arthur Greene’s  Leveraging with Legal Assistants: How to Maximize Team Performance, Improve Quality, and Boost Your Bottom Line, one of several excellent ABA resources on this topic.