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LEGAL REPOR T: LITIGATION On the right track W Investing in proper pretrial processes is helping judges offer efficient and effective case resolutions for all parties. BY ANDI BALLA hen the parties involved in a recent personal injury case in London, Ont., came out of the courthouse with a settlement in their hands, there was a sense of relief for everyone involved mixed with a feeling of appreciation that an intensive pretrial process had shown results. It wasn't an easy case. A commercial trailer had hit a three-year-old boy and there was a demand for compensation for potential brain injuries. The plaintiff wanted the limit, $7 million. The defen- dant said it did not feel it had to make an offer. From those polarized starting posi- tions, over six months, in four meetings, the opposing counsel, judge, parents, three of Canada's top brain injury doc- tors, and adjustors attended the pretrial process for Stefan v. Transport Sales. It was a far cry from the typical one-hour pre- trial. The case was, however, settled for a "substantial" but undisclosed amount. "It was a perfect example as to how a judicial involvement can get a case resolved. It got the case settled," says Mark D. Lerner of Lerners LLP and one of the lawyers involved in the settlement. "Here was a judge who wouldn't let go, wouldn't let counsel drift off and forced all of us to come to grips with gut issues of the case. So it was a remarkable and positive use of judicial intervention." With 95 per cent of cases not going to trial, pretrials are a vital part of the court process, which if overlooked can hamper the process. However, judges and law- makers are vying to make the process as efficient as possible for all parties. Justice John F. McGarry, the judge in Stefan, says he knew he needed to have a roundtable bringing in all of the parties and experts to discuss the brain injury case. McGarry's process on extensive pre- trials involves three meetings. The first serves to set a base on which the judge can resolve the case, which in the case at hand meant bringing in experts. The second meeting is the roundtable. And the third involves mainly monetary issues to get the case resolved. "Having half a dozen pretrials in a day no matter whether they are complex or simple just doesn't cut it, so that's why I often have to come back to a second or third session to really get into it," says McGarry. "I also use caucuses. On big complicated cases, trying to bring everybody at a table usually doesn't work, so I'm prepared to split the counsel in various rooms." McGarry, who has more than two decades of experience in Ontario courts, has been using this system for about a year. He has the support of the senior regional judge and is doing these types of pretrials across the region. However, it is not a common practice. When it comes to caucusing, some judges don't see it as part of their role, others just don't have www. C ANADIAN Law ye rmag.com JULY 2010 51 PIERRE-PAUL PARISEAU