Agreed statement of facts: a multifunction justice system tool | William Poulos
Wednesday, March 17, 2021 @ 8:36 AM | By William Poulos
Lawyers may be seen at first glance as combating adversaries in our justice system. No doubt the justice system is adversarial by nature but collaboration is also very much a part of our “adversarial” system. Professional advocacy has room for both vigorous advocacy and collaboration between adversaries.
Our justice system is founded not just on trial verdicts but collaborative, well-negotiated settlements. The ASF functions on a number of levels to facilitate a smoother running justice system. The ASF does not trump the client’s best interests but can serve them, or at least not prejudice them.
One arm of the ASF multifunction tool is its education role or function. For example, the court may need assistance understanding a complicated manufacturing process, and an ASF is employed to assist and provide that background. A helpful chronology may also be the subject of an ASF, which also assists the adjudicator. The reference to adjudicator is used in the broad sense. The ASF has shown, over the years, its utility in many contexts, including arbitration and different areas of litigation, such as civil and criminal, to name only a few.
A key role of advocates is to persuade, but that is hard to do if the adjudicator does not have the proper background, context or information to better understand the issues before him or her. An ASF can create an educational opportunity.
Another arm of this multifunction tool is the ASF’s efficiency arm. With an ASF, witnesses may not need to attend or may not need to attend as long at a hearing. An ASF can cut down hearing time and help to focus the issues and the evidence to get to the heart of the case.
The ASF has great utility on this arm. It can be used, for example, to agree that a person was in possession of a handgun — which is a prohibited weapon — and was loaded, to lead evidence as to the amount of drugs in a person’s possession, to highlight the trajectory of a bullet. It can also be used to provide the reasons for the termination of an employee, to outline medical facts and to itemize the dates of telephone calls. These is only a few examples.
Another example of the efficiency use for the ASF is rooted not just in the direct collaboration of the adversarial parties but also their agents: for example, opposing experts getting together and agreeing on a list of agreed facts which may further assist in reducing issues for adjudication.
The efficiency of the ASF lies not just in the areas of law it can serve but in its versatility. It is not static. It can be supplemented by a further ASF as time passes and can even be used by counsel to help clear the record during a hearing amidst numerous inconsistencies in a person’s evidence.
In R. v. Chrisjohn 2021 ONSC 1538, at para. 37, the court noted that it was only through an ASF prepared by defence and Crown counsel and filed before the end of a cross-examination that the record was made clear in the context of many witness inconsistencies. So the multifunction’s usefulness is not limited to pre-hearing efforts.
Integrity and public confidence in the administration of justice
There is also an arm of the ASF which can enhance the integrity of the bar and the public’s confidence in the justice system. An ASF can minimize the detrimental ramifications of a witness and their family reliving bad experiences, such as PTSD content and past sexual violence. To the extent facts in these areas can form part of the ASF, the bar shows not only its efficient, collaborative spirit, but also that vigorous advocacy is not necessarily mutually exclusive from compassion for a witness or a situation before the court.
The public eye is not just on our vigorous advocacy but also on our integrity and empathy with situations before the court or tribunal. The client’s best interests are our guiding light but making accommodations, and being collaborative, where those interests are not prejudiced, is in my view professional advocacy. Showing human compassion for a particular witness or situation does not have to be mutually exclusive with vigorous advocacy.
There will be circumstances where, despite their best efforts, counsel can’t agree on an ASF, but the ASF tool should always be at counsel’s side, with serious reflection on its application and use in the particular circumstances of a case. This should be an ongoing reflection.
Another example of the ASF’s use in a manner that enhances professional integrity could be in the area of mobility impairment, where, again, a witness’s unnecessary discomfort in having to repeat information which could be in an ASF would be lessened.
In my view, the public’s confidence in the bar is rooted not just in efficiency and numbers but also in the bar’s human side. We show the public we can be just as skilled in mediation, negotiation and settlement as we can be in cross-examination and trial advocacy. We show the public we are not just champions for one client but also champions of the justice system sharing clients’ concerns to move matters along in an efficient, timely and just manner.
Education. Efficiency. Integrity. A few of the causes the ASF can facilitate. However, it is important to avoid a boomerang effect with the ASF. We have seen many cases in contract law, for example, where there are interpretation disputes. When drafting the ASF it is important to avoid a situation where one party advocates that a certain term, phrase or sentence in the ASF means X and another states it means Y. In that situation, the parties could boomerang potentially back to the point where there is no agreement on a key fact. This confusion could arise at the worst of times.
The ASF is like a multifunction tool capable of fulfilling or facilitating many tasks in many legal contexts. It provides opportunities to advance key facts, to save time and expense and to highlight the integrity of the bar and enhance public confidence in the justice system.
We are not just hired guns. We are professionals with multiple skills, open to apply them when it serves our clients’ best interests, or does not prejudice them, and servants to a justice system that is constantly aiming to be more efficient and meet demanding public expectations.
Care must be taken when entering an ASF to avoid any boomerang effect. The integrity of our profession is rooted not just in what we advocate and say but also in action. ASF is a form of collaborative action to advance the goals of justice in the least expensive, timely and fair manner possible.
William Poulos has practised civil litigation for over 30 years and is a sole practitioner in Kingston, Ont.
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