There is much talk in the news about artificial intelligence and the coming loss of jobs, in the legal profession as elsewhere. Without doubt, there are traditional legal tasks that have been successfully transferred to paralegals and will be further transferred to robots or some form of artificial intelligence.
However, one aspect of a lawyer’s role that will likely be immune to the impact of computers or artificial intelligence, at least for the foreseeable future, is that with respect to litigation advice and the conduct of a trial.
The most important quality that a client has a right to expect from a lawyer giving advice in a litigation matter is judgment. A client is buying that judgment, most importantly the judgment that comes from not just knowledge of book law, but from experience that enables the lawyer to predict the most likely outcome of a lawsuit and to bring about the desired result.
The outcome of a case often depends on seemingly innocuous facts, little details that can colour a case and have an impact on the reasoning of a judge when assessing the justice of a case. Judges are human beings and generally want to do the right thing, to see that justice is done. In weighing the merits of a case, taking account of the winding course a litigious matter can take and determining strategy and tactics in how to proceed, a litigation lawyer must assess the impact that small details might have in the outcome as this is crucial in the decision when to hold fast or fold.
Having exercised the judgment as to the most predictable outcome, having determined the strategy and tactics, the lawyer must then be prepared to and capable of executing. This means ability to form the narrative, shape the record, manoeuvre within the rules of court, compile and elicit the evidence, concentrate on the nub of the case that aspect which tilts the balance of justice in his or her client’s favour, to cross-examine with that end in view, and to advocate successfully to persuade a judge to find in the client’s favour. And all this must be done in a cost-effective basis for the client.
I am not aware of a computer or robot that can do that. I am not aware of a computer that can assess justice.
The firm has just completed two mandates raising the issue of limitation periods which may bar a legal proceeding before it is commenced. One common issue arose in both matters: “discoverability” of the cause of action, which triggers the running of the limitation period. The test of discoverability raises an objective, rather than subjective, test because it asks: when ought the plaintiff, having regard to all the circumstances, to have realized that a legal claim had arisen? From that date, the limitation time period commences to run. A careful marshalling and review of the evidence on this issue is required. The court will hold a party to the standard of reasonableness; whereas a mere possibility of discovery of the cause of action imposes too high a standard on a plaintiff.
The Supreme Court of Canada has recently rendered a decision – Bhasin v Hrynew – of importance to all clients engaged in business activity. The issue of “good faith” in regard to contacts and negotiations has been the subject of much litigation over the years. In Bhasin, the court decided that a party to a contract has an obligation to act in good faith when it comes to the performance of its contractual obligations. The court held that there is a broad “organizing principle” of good faith that requires “honest, candid, forthright or reasonable contractual performance”. Parties cannot contract out of this duty.
The degree to which this case conflicts with the economic theory of “efficient breach” is yet to be determined, as are the additional damages to which a party may be exposed for breach of the additional contractual obligation, i.e., the damage from a breach in “bad faith” may be no greater than an innocent breach. Much depends on the particular circumstances of the breach. One thing is predictable for all business clients: the case will give rise to an increase in standardized allegations of “bad faith breach” by litigation lawyers as the details of the “new” doctrine are worked out in future cases.
Under the Condominium Act , a board of directors owes legal obligations in regard to reserve funds for the replacement of common elements. Ron recently acted in such a dispute. Many older condominium buildings have underfunded reserve funds, which can occur due to the failure of directors to appreciate their legal duty to provide for adequate funding for the replacement of deteriorating infrastructure/common elements. Funding must be based on accurate estimates of the useful life and accurate estimates of the cost of replacement, as set out in the reserve fund study mandated under the Condominium Act. Third party purchasers may rely on the accuracy of representations contained in reserve fund studies. In practice those studies constitute the inspection by a purchaser of a condominium unit and building.
Directors risk personal liability for misrepresentations in the reserve fund studies, even though the reserve fund engineers also bear responsibility for any negligence on their part.