Background & purpose of the system 1 basic institutions, processes, and players 3
Problematic Litigation Strategies
Download 217.64 Kb.
|
| Problematic Litigation Strategies
General unwillingness on behalf of the gov’t and church organizations to take responsibility and apologize The use of limitation periods hindered the achievement of assisting healing Minimization of damages (i.e. use of the “crumbling skull” rule – blaming aggravating issues on activities against which claims were statute-barred); this undermined the healing and meaningful settlement objective Denial of responsibility Evidentiary hurdles (and resistance to certification of class actions) Problematic Plaintiff-side lawyer conduct (i.e. criminal interest rates) This lawyering is problematic as it largely preferences adversarialism over collaboration, winning over restoring, individual rights over collective interests, power over vulnerability, process over outcomes, and cultural-neutrality over pluralism and diversity What residential schools litigation demonstrates is that the dominant model of lawyering – which has often allowed an adversarial approach to take over when what was so clearly needed was a different, more therapeutic, restorative and respectful approach – needs to be questioned, balanced and potentially tempered in cases dealing with power imbalances, vulnerable litigants, situations calling for a heightened sensitivity to diversity, pluralism and the public interest, and cases with very sensitive facts and contexts, particularly in cases where one of the parties is the government (and perhaps some other large institutional litigants such as church organizations and the like). One solution may be to re-shape the definition of professionalism in the RPC (i.e. you should include pluralism, diversity, truth, access to justice, equality etc. as elements of professionalism) Download 217.64 Kb. Share with your friends:
|