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

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

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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.

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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”.

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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

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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.


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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.


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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

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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

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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.

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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 . . .

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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 . . .


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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

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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.

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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


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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


15

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

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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

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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

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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.

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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

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

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