Dispute Settlement: Alternatives to Resolving Disputes

Students are introduced to an analysis of the dispute resolution continuum and will be required to identify where and how, through the different processes, dispute resolution is achieved. Students will gain an appreciation of the historical development and current application of various dispute resolution processes, including litigation, arbitration, negotiation, and mediation. The process of litigation as applicable to the adversarial system of justice will be examined. The seminar focuses on an under-standing of the strengths and weaknesses of different approaches to dispute resolution as well as the appropriateness of when to use them. Students will also gain a
practical understanding of the theoretical aspects of certain processes available for resolving disputes within the legal system as a applicable to the Province of Ontario, including litigation and methods of alternative dispute resolution including negotiation and mediation. The seminar will provide an opportunity to develop and practice some of the techniques of dispute resolution under the supervision of members of academic staff.

Teaching methods include: lectures (Socratic and otherwise), facilitated class discussions, interactive small seminar and larger group exercises.

International Dispute Resolution: International Commercial Arbitration

This seminar will introduce participants to the resolution of international disputes through arbitration, and in particular, the key stages of an international arbitration, including the drafting of arbitration clauses, constitution of the tribunal, managing the arbitral procedure, evidentiary hearings, and finally, the set aside and enforcement of awards. In addition, the seminar will provide particular instruction on key features of international commercial arbitration, including arbitral institutions, investor-state arbitration, and various procedural rules.

Special emphasis is placed on the practical management of complex international arbitral proceedings by counsel. In this regard, the seminar will include particular instruction on client management, maximizing costs and efficiency, arbitrator selection, key advocacy skills, and ethical challenges that can arise in the context of international commercial arbitration.

By the end of the seminar, students should be comfortable with the key legal concepts underpinning the arbitral process and considerations structuring and managing an effective arbitral process.

Dispute Settlement: Alternatives to Resolving Disputes

Students are introduced to an analysis of the dispute resolution continuum and will be required to identify where and how, through the different processes, dispute resolution is achieved. Students will gain an appreciation of the historical development and current application of various dispute resolution processes, including litigation, arbitration, negotiation, and mediation. The process of litigation as applicable to the adversarial system of justice will be examined. The seminar focuses on an under-standing of the strengths and weaknesses of different approaches to dispute resolution as well as the appropriateness of when to use them. Students will also gain a
practical understanding of the theoretical aspects of certain processes available for resolving disputes within the legal system as a applicable to the Province of Ontario, including litigation and methods of alternative dispute resolution including negotiation and mediation. The seminar will provide an opportunity to develop and practice some of the techniques of dispute resolution under the supervision of members of academic staff.

Teaching methods include: lectures (Socratic and otherwise), facilitated class discussions, interactive small seminar and larger group exercises.

Administration of Civil Justice: Estate Litigation

This seminar will examine the substantive, procedural, and practical issues surrounding litigating certain claims by and against estates. Topics may include, depending upon available time, a detailed review of will challenges, dependant support claims, appointment and removal of estate trustees, passing of accounts, quantum meruit claims, and solicitor’s negligence in drafting wills. We will also examine the role of mandatory mediation and other negotiation techniques in resolving estate litigation. Students will also participate in a mock mediation exercise.

For each of these topics, we will explore how a client’s case is developed through the interaction of the case law, the Rules of Civil Procedure, the applicable statutes, the rules of evidence, and the psychology of the family unit.

Constitutional Litigation

This is a fun course with equal emphasis on both oral and written advocacy. Debate, questions, brainstorming and discourse are encouraged.  

Students will be involved in almost all of the steps of a constitutional case, from the initial claim, to cross-examinations, to arguing a preliminary motion and culminating in a final factum and moot before a panel of judges with students receiving both oral and written feedback throughout.

We will focus on a substantive area of constitutional law (ex., freedom of expression, equality or division of powers) as well as questions of procedure, evidence (adjudicative and legislative, privilege) and judicial notice. A key focus is on the importance of remedies as an initial consideration, not as an afterthought.  

The seminar also involves working through problems in small groups and presenting positions in class.
 
Seminar topics are designed to be in service of the final moot and factum. Topics typically include: the role of the courts in constitutional litigation; commencing a constitutional case; drafting pleadings; government action under s.32 of the Charter; standing; selecting the appropriate court and procedure; mootness, interventions; role of the Attorney General; evidence in constitutional cases, proving constitutional facts, the role of experts and drafting effective affidavits, examination of government witnesses, presentation and assessment of social science data in the adversarial system; drafting constitutional arguments and presenting them effectively; oral advocacy; the importance of remedies for constitutional infringements; litigation strategies for public interest groups and case studies.

Legal Values: Psycho-dynamics of Advocacy & Judging

Advocates reverse-engineer cases from the outcome their clients seek, selecting the most compelling facts and the most plausible legal channel to build the chain of reasoning that will lead to that outcome. This is result-selective reasoning. By contrast, judges are expected to come to the dispute without a personal agenda beyond the call of duty to reach the just legal outcome based on the facts, the law, and their interaction.

Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges. No doubt these advances have given advocates more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these techniques and avoid being lured away from doing justice according to law.There are four quite distinct and burgeoning fields of research into the psychology of judging, which are based on empirical research that lays out the cognitive infirmities that affect human beings. These could be basic materials for effective advocacy.

The first, and the one with the broadest reach beyond judging, is based on the thought of Daniel Kahneman and Amos Tversky, who explore cognitive illusions or biases that affect human cognition generally, and, therefore, judicial cognition. Second, there is a growing area of research specifically on the effect of emotions on judging, particularly empathy. Third, the study of coherence-based reasoning seeks to describe the way judges and juries think. Fourth, there is research on the effect of narrative on judicial attention, understanding, and judging. These areas are not quite silos, but they have not yet coalesced into coherence.

This course will familiarize you with these areas of thought, using an excellent recent American text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018). It is an operating manual to the judicial mind and ground-breaking. I would supplement with Canadian cases demonstrating the impact of the rhetorical techniques explored by Berger and Stanchi.

To these techniques is added the filter of ethics – judicial and lawyerly. How do judges and lawyers meet their obligations, in the course of a lawsuit, to first, do no harm; then, do the right thing, for the right reason, in the right way, at the right time, and in the right words? Do rule of law constraints work to ensure principled advocacy and adjudication?

Litigation Dispute Resolution and the Administration of Justice Colloquium

The LDA Colloquium provides students with the opportunity, in collaboration with their peers, to develop and refine a major research paper, ideally, on a scholarly project commenced in a previous seminar or course. It is designed to enable students to take a piece of writing to the stage where it is publishable, and to help them to develop the skills to do so with other scholarly writing.

The seminar proceeds in three phases.

First, students identify the research that they wish to develop in the seminar, and they consult on ways to develop and refine the research. They present their paper proposal to the class for comment and discussion and provide comment on the proposals of other members of the seminar.

Second, based on the proposal and the discussion, students conduct further research and writing in order to craft the substance and structure of their papers. Based on an outline prepared for the class, they present their papers and receive feedback on the analysis and the direction of the argument.

Third, as the papers progress through initial drafts, the students participate in intensive editing workshops to provide them with techniques for improving the quality of their writing.

Theory and Practice of Mediation

Theory and Practice of Mediation offers students an interactive opportunity to develop an understanding of the utility and impact of mediation within the context of the dispute resolution spectrum. Students will gain knowledge through lecture, group discussions, simulations, placements in the Toronto Small Claims Court (circumstances permitting), and final evaluated mediations. As well, the seminar provides an opportunity for students to undertake a paper assignment to examine both theoretical and practical issues discussed during the term. Students will be engaged in a hands-on learning opportunity to explore negotiation, mediation styles and tactics, while being mindful of ethics and professional obligations.

Trial Advocacy

An introduction to the techniques of trial advocacy in civil and criminal trials. Consideration is given to pre-trial preparation and case analysis, opening and closing statements, examination and cross-examination of witnesses, evidence issues, expert evidence, tactical questions and ethical issues that confront the trial lawyer. Students perform simulation exercises in small groups under the critical guidance of experienced trial lawyers and Judges.  Students conduct 1/2 day jury trials with two-student counsel acting on each side of the case.  Trials are presided by Judges of either the Ontario Court of Justice or the Superior Court of Justice.

Intensive Legal Research & Writing

This intensive seminar provides students with the opportunity to refresh and update their research and writing skills. Skills reviewed will include the analysis, citation and presentation of authorities; and standard research techniques, tools, and concepts, such as noting-up, controlled subject vocabularies, digests, and boolean searching. We will review the formats and media used to publish legal information, including web sites, print, and microforms. Additional topics covered will include the publishing and record-keeping practices of the major decision-makers, rule-makers, lobbyists, interest groups, etc.; the publishing and business activities of the significant commercial and non-profit disseminators of information and libraries; and the institutionalization of research activity in law firms, government and academia.