LAW 122 Chapter Notes - Chapter 2: Professional Liability Insurance, Alternative Dispute Resolution, Law Society

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24 Apr 2012
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Monday September 19th, 2011
Chapter 2
Litigation & Alternative Dispute Resolution
The Litigation Process
-Litigation
is the system of resolving disputes in court
-Risks of litigation:
expensive
time consuming
unpredictable
frequently fatal to business relationships
-Litigation is rare
very few cases are decided by judges in court
Most disputes are settled out of court; we rarely hear about those details
Fewer than 1% of private disputes are decided by judges
Who Can Sue?
-General Rule: Any person or corporation can sue or be sued
-person who lacks legal capacity can sue or be sued but must act through a representative
Example: child or adult with mental disability)
-statutory authority required to sue government
-a corporation is a type of a person
A company may therefore sue or be sued
-unincorporated organizations such as clubs and church groups are not classified as a legal person
Normally cannot sue or be sued
Class Actions:
-Purpose: multiple claims against single defendant joined together in one action
-suing on behalf of large group of claimants; allows small individuals to take on large organizations
-small claimants able to share costs of litigation against large defendant
Example: product liability, mass torts, workplace discrimination
-a company may not worry about thousands of claims worth a few dollars each, but it will worry about a
single claim worth $50 million
-class actions are becoming increasingly common in Canada
Primary attraction: they allow small individuals to take on a large organization
-class action requirements:
1. Common Issues:
must be common issues amongst the various members of the class
Example: there may be a women who received defective breast implants from the same
manufacturer as another women, not necessary every claim is to be identical
2. Representative Plaintiff:
he/she must demonstrate a workable plan for fairly representing the interests of the
class member
Example: this situation will not be true; the plaintiff wants the court to rely on a rule
that will help some circumstances that affect some claim acts
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Monday September 19th, 2011
3. Notification:
must have plan for notifying potential class members as members of that class are
bound by the decision
it is not unusual for instance to see class action notices in newspapers or magazines
4. Preferable Procedure:
class action is the preferable way of dealing with the claims
considers whether a class action will become too complicated and whether there are
enough similarities between the class members
5. Certification:
court’s decision to allow the class action to proceed (allows the claims to be joined
together as a class action)
most important step in the entire process as a class
it demonstrates that the courts believes that there is a serious and genius claims to be
considered
Legal Representation:
-if you have been sued or want to sue it is important that you make a decision regarding legal
representation, who will argue for your side?
-question raises an important risk management issue
1. Self Representation:
right to represent yourself
usually advisable only in simple matters
it is expensive to hire a lawyer however, it may be far expensive to lose a lawsuit in the
long because due to the lack of experience
you can go to the court and argue your case before the judge without being a lawyer
2. Lawyers:
required to have graduated from Law School, articled, passed bar
Law Society regulates the profession
Law Society establishes and applies Codes of Conduct and investigates/punishes
misconduct
Punishes people who do not act responsibly
Other advantages: lawyers must carry professional liability insurance
If your lawyer acts careless and you suffered a loss, you may sue for professional
negligence
communications are confidential and privileged
there are a number of advantages of hiring a lawyer:
Example: conversation with your lawyer generally confidential and privileged
meaning that your lawyer cannot share your information with anyone without
your consent
Law societies also provide assurance funs which provides compensation to people who
have been hurt by dishonest lawyers
3. Paralegals not a lawyer but provides legal services
Since 2007, Law Society of Upper Canada has licensed paralegals in Ontario
Now Paralegals must:
train at an approved institution
complete examinations just as lawyers need to write the Bars
abide by a Code of Conduct (punishable by misconduct)
carry liability insurance
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