Davies Academy For Continuing Professional Development

Transcription

1 Davies Academy For Continuing Professional Development Effectively Managing Real-Time Litigation and Critical Litigation Matters James Doris Andrea Burke Davies Ward Phillips & Vineberg LLP

2 Outline 1. What is "real-time" litigation? 2. Strategic Issues 3. Ensuring preparedness for real-time litigation: In general When litigation is reasonably anticipated

3 What is "Real-Time" Litigation? "Real-time" v. "autopsy" litigation Complex commercial disputes with a "real-time" imperative Cases where excessive delay can dictate the outcome, regardless of the merits Cases that can be "hi-jacked" by litigation tactics if the adjudicator does not sufficiently control the process

4 Hallmarks of Real-Time Litigation Typically involves a "live" transaction Examples include: CCAA/restructurings plans of arrangement take-over bids e.g. poison pill hearings related party transactions injunctions shareholder activism/corporate governance disputes Competition Tribunal proceedings (merger review)

5 Features of Real-Time Litigation Litigation proceeds expeditiously in a condensed timeframe. Documentary production and discovery are limited. Strict schedules and time limits may be imposed. Informal access to judges/adjudicators is often available. Will often proceed by way of "mini-trial" on a paper record for evidence-in-chief, with minimal or no crossexamination.

6 Features of Real-Time Litigation Cases are streamlined, focussed. Parties are often discouraged from advancing "every conceivable and inconceivable" point. Often need to be prepared to compromise.

7 Requirements for Successful Real-Time Litigation Parties and counsel are expected to work extremely hard within compressed timeframes to ensure proceedings are conducted in a constructive and sensible fashion. Ability to assemble the evidentiary record quickly and efficiently. Adjudicators with subject-matter/commercial expertise.

8 Requirements for Successful Real-Time Litigation Adjudicators who are skilled at case-managing the process. Flexible and available adjudicative resources. Responsible counsel willing to cooperate with each other and with adjudicators.

9 Strategic Issues to Consider Identify company's objectives/adversary's likely objectives - ensure that strategy/behaviour are aligned with identified objectives. If there is an option, identify and choose your fight (e.g. shareholders v. creditors). If there is an option, decide whether you want to initiate or respond to litigation. Cont'd

10 Strategic Issues to Consider Decide whether your strategy rests on delay/nuisance v. expediting the adjudication. Cont'd

11 Strategic Issues to Consider If there is an option, decide on preferred venue for the litigation: Ontario versus another Province/jurisdiction; Court versus regulator; possibility of multiple proceedings: home field advantage desire to avoid "unfriendly" jurisdiction location of senior executives, witnesses differences in applicable law (e.g. common law v. Civil Code, appeal rights, limitation periods) location of preferred counsel expertise of adjudicators anticipated speed of process enforcement issues

12 Ensuring Preparedness for Real- Time Litigation In general: List of preferred counsel and have arrangements in place with preferred counsel in various jurisdictions in advance. Consider alternate list for conflict situations. Importance of having robust records management and document retention systems in place. Have effective written forms of preservation notice/legal hold and related protocols at the ready and updated as appropriate. Cont'd

13 Ensuring Preparedness for Real- Time Litigation In general: Consider pre-existing arrangements with external service providers. Effective litigation response reporting protocols in place. Protocols re: who will have internal responsibility for quarter-backing litigation: who will supervise and manage the internal and external teams. Cont'd

14 Ensuring Preparedness for Real- Time Litigation In general: Established protocols to deal with all levels of insurance and notification. Communications protocol, including arrangements with public relations firms, as necessary.

15 Ensuring Preparedness for Real- Time Litigation When litigation is reasonably anticipated: Get litigation counsel involved as early as possible. Assemble a big enough team/multiple teams. Consider need to retain counsel in other jurisdictions. Develop litigation strategy as early as possible and before litigation actually arises or is threatened. Cont'd

16 Ensuring Preparedness for Real- Time Litigation When litigation is reasonably anticipated: Litigation strategy should inform all aspects of a matter. For example, if possible, draft documents (minutes, circulars, correspondence, press releases, internal communications) and structure transaction with future litigation in mind. Caution individuals with any involvement (employees, officers, directors, financial advisors) about taking care with written records (PINs, s, notes). Cont'd

17 Ensuring Preparedness for Real- Time Litigation When litigation is reasonably anticipated: Ensure that privilege is maintained. Start legal research identifying issues and prepare in advance. Compile and review documents so company is able to respond quickly to document requests and so that the legal team is aware of any issues ("bad" documents) before litigation is commenced and before evidence is filed. Cont'd

18 Ensuring Preparedness for Real- Time Litigation When litigation is reasonably anticipated: Start drafting basic documents early (pleadings, affidavits, etc.) Identify and retain experts early limited field. Consider retaining multiple experts (both consulting/testifying experts) to hedge your bets. Gather potential allies (e.g. joint defence agreements; OSC Staff). Cont'd

19 Ensuring Preparedness for Real- Time Litigation When litigation is reasonably anticipated: Consider developing advance public relations strategy.