Why does the court process take so DAMN LONG? Actually… it doesn’t have to

Lawsuits are long, expensive and stressful.

And in most cases, I would agree with this statement. Complicated cases often require multiple trial days, which need to be booked several months or even a year in advance.  Court resources are thin and time is precious, so get in line and wait your turn.

But it doesn’t always need to be that way, especially with cases that are relatively simple or are valued at less that $100,000. It also just so happens that most employment law cases fall into one or the other of these categories. 

In my practice, with almost every new litigation file I start I aim to have the matter resolved either by settlement or court judgment within 6 months. Here are some of my strategies.

Fast-Track Litigation

British Columbia has a fantastic and under-used process called Fast-Track to expedite simple matters. Essentially, if a claim is valued at less than $100,000 and can be tried in 3 days or less, it’s likely a perfect candidate for Fast-Track.

There are a number of benefits to this process, but the biggest one is that the parties receive a priority status when booking trial dates. This means that when using the Fast-Track process, we are able to go to the front of the line in booking time for trial, potentially moving things forward months sooner.

Summary Trial

Summary trial is another example of how we can by-pass the traditional trial process. This option is often used when there is little dispute over the facts of a case, and all we are arguing about is the extent of damages. As it happens, this is often the case in employment files where we are tasked with calculating severance, or as lawyers call it “reasonable notice”.

In a summary trial, most evidence is presented in a written-statement called an affidavit. This can reduce the need to call witnesses before the court, simplifying and shortening the presentation of evidence. Summary trials can often be heard in one-day, and rarely take longer than two, creating less stress on court resources and allowing easier access to judges.

There is also no monetary cap on summary trials, and provided that there are not significant conflicts in facts or credibility, they can be an important part of a legal strategy.

Proactive Lawyers

For all the talk of limited court resources, I would argue that the biggest reason for delays in moving a file to some form of ultimate resolution is a lack of urgency on the part of lawyers, particularly in relatively simple matters or where experts are not needed. Even when a summary trial or Fast-Track process are not options, a lawyer’s attitude and proactivity towards the litigation process can reduce time, costs and stress on clients.

When my team initiates a lawsuit, we immediately contact opposing counsel to communicate that we will be proceeding professionally, transparently, but also aggressively and very quickly. We let them know that we will be setting the matter down for trial within 6 months. In my practice, litigation starts not by serving a lawsuit, but by asking for trial dates.

Once trial is scheduled, we work in reverse to schedule milestones such as a Trial Management Conference, Examinations for Discovery and document exchanges. As it happens, by acting transparently and quickly, I find that we are also able to bring about better settlements, because an “early-settlement discount” becomes far less enticing when you know the matter will be resolved in a few months time regardless.

Defer no time, delays have dangerous ends.

– Willam Shakespeare

Litigation is stressful, long and expensive. There is truth to this, certainly, but proactivity and effective legal strategies can go a long way in mitigating these outcomes.

As Bill Shakespeare suggests, deferring and delaying are not without consequences, and when it comes to litigation, these consequences almost always mean more cost, more stress and a compromised client experience.

At Kent Employment Law, we promote sustainable employment relationships. We believe in transparency and results. If you have questions about the litigation process, please contact one of our offices.

David M. Brown
Kent Employment Law
LinkedIn: https://ca.linkedin.com/in/davidmjbrown
Twitter: @davidmjbrown

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