Civil Trial Trends Summer 2017

The number of civil trials is on the rise. However, the resistance to civil trials is stronger than ever.  Most cases settle.  The % of cases settling is anticipated to rise and this could slow the growth in the number of civil trials.

Civil Trials Unpopular

Clients continue to not want civil trials. This is nothing new.

Lawyers do not want civil trials. Lawyers generally don’t have the time and resources (retainer) to go to trial. Insurance companies have figured out how to exploit this trend by marshalling resources.

Judges and Courts do not want civil trials. Practice directions and multiple pre-trial conferences are being leveraged by the Courts to eliminate civil trials from their dockets. R. v. Jordan supplies a compelling rationale to do so.

Pre-Trial Conferences or Judicial Mediations?

All of these factors have led to a culture of over-reliance by counsel on “judicial mediation” at civil pre-trial conferences.

Judges have seized on these trends and become emboldened in how they approach civil pre-trial conferences with a view to stopping cases dead in their tracks.

The Role of Civil Trial Counsel

The demand for civil trial counsel is on the rise.

Ironically, despite a rising number of civil trials, the opportunity to conduct, co-counsel, assist or even watch civil trials is down. Law firms are turning to experienced trial counsel to handle civil trials, reducing the opportunities for other lawyers to participate.

Recommendations for Litigation Counsel

Litigation counsel who want to gain a competitive edge on their peers can do so by honing their negotiation and mediation strategies as opposed to relying on pre-trial conferences to resolve cases.

As well, litigation counsel can seek out and seize opportunities to conduct trials in appropriate cases.  This can be achieved by retaining trial counsel for strategic advice on a consulting basis as opposed to having trial counsel conduct the trial.

The above will bolster litigation counsel’s ability to conduct litigation from pleadings to settlement or judgment.  Taking a couple of cases to trial will change how litigation counsel prepares their cases for success.


This article is courtesy of the Ontario Civil Trial Manual

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