CASE MANAGEMENT CONFERENCES
TERRY P. BELEY , FISHMAN BELEY

( Law Society of Manitoba Program April 21, 2006
“Family Practice in the New Millenium; Navigating Your Case Efficiently and Effectively”)

Some thoughts on more effective Case Management Conferences:

1.         The first question is do you really need one right now?  Have you even started negotiating yet?  Have you exchanged sufficient financial and other information that you can usefully move the matter along?  Is there an impasse? 

2.         If the issue is disclosure then use Interrogatories or the other procedural tools to get the documents and/or information you need.  Perhaps you need to examine for discovery before you go for Case Management.

3.                  For an initial Case Management Conference, use the internet to get a range of available dates from the Court website.  Get a number of available dates from the other counsel and book time with the Case Management Coordinator.  You will have to file a Requisition. 

4.                  With respect to filing Briefs, the practice direction requires that the Brief be filed prior to 2:00 p.m. on a day two days before the hearing e.g. Tuesday by 2:00 p.m. for a Thursday hearing.  This is the minimum which gives no room for remedy if documents do go astray.  Ideally, file your documents sooner than the deadline. 

5.                  Exchange information and documents with the other side in a more timely way.  If a case was adjourned for this purpose and it has still not been produced then consider whether the hearing shouldn’t be further adjourned.  How many times are documents provided on the eve of a Case Management Conference which requires a further adjournment so that the other side can consider its position?

6.                  If you are trying to use the Case Management Judge to break an impasse or you would like an opinion on a particular issue then you need to insure that you provide the Judge with enough information so that he or she can offer an opinion.  In the case of an impasse, don’t feel that you are scoring debating points if you give the Judge all of the settlement correspondence (presumably to show how reasonable you have been).  Just give the factual background, the impasse and your suggestion(s) for how to resolve the issue.  What this also means is that in each case you should then be doing something more than the bare minimum Brief.  For example:

(a)               Do an extensive statement of facts, statement of the issue(s) and statement of your position which you can attach to the Brief which will then set out your client’s position in a way that is helpful to the Court;

(b)               Attach documents or other exhibits which are relevant to the issues;

(c)               Attach Case Law;

(d)               Use numbered or lettered tabs to differentiate between documents which you have attached for the ease of reference of the Judge.

7.                  Bring your diary to the hearing.  (For that matter, always bring your diary to any hearing). 

8.                  Prepare your client for the hearing.  Educate him or her about the process and what a Judge can and can’t do.  Explain to clients about mediation and “For the Sake of the Children”.

9.                  Consider what procedural orders you can get from the Court in terms of production of documents, timetables for examinations for discovery, etc.  If you need more than the standard financial disclosure set out what you need and why it is relevant.

10.             If custody is an issue and the children are seeing a therapist, what about having the therapist meet with the parties, counsel and the Judge at a Case Management Conference?

11.             If you need or want a custody assessment in a custody matter, bring the names of three acceptable psychologists or social workers with you to the hearing.

12.             Do you really need an accounting?  Sometimes this is used as a way to forestall the setting of a trial date.  Have you gotten estimates or opinions as to value?  What are the assets which are in dispute?  If we are talking about contents then get an appraisal.  That is exactly what the Master will direct that you do in any event.  If that is so, then why wait?

13.             If there are valuation issues can they be deferred?  For example, if the issue is constructive trust or unjust enrichment, perhaps you can deal with the entitlement issue first and then deal with the valuation issue subsequently.

14.             Again for valuation issues, can you agree on a joint appraiser with both parties to be bound at a shared cost?

15.             If the other side leaves the Courtroom to discuss an issue or a position then you should consider leaving with your client as well.  Otherwise you are in the totally awkward position of trying to make small talk with the Judge. 

16.             Where necessary, and more importantly, where there is a real likelihood of settlement, you can ask the Judge for more than an hour for a Case Management Conference.  In a proper case, you can get a half day and even longer, where the Judge agrees. 

17.             If the matter is settled at a Case Management Conference, then try to have the terms of settlement set out and recorded in some detail by the Judge in the Memo.  Perhaps have the Judge pronounce the Order.  In any event, do a letter immediately setting out the terms of the settlement.  Ideally, do the Order and/or other settlement documents as quickly as possible.  Given enough time, circumstances may change or settler’s remorse set in.  Proceed with dispatch with the Affidavit divorce (if there is one) or you run the risk that your financial disclosure will get old and stale and the Judge will need more current information which may or may not be easy to get.  If there is a dispute with respect to any term of the Order then reconvene the Case Management Conference and enlist the Judge’s assistance in settling the Order or resolving the issue.  In that event, file a brief setting out what the issue is, your attempts to resolve it and your position.  This can also be done by letter.  In that case, do not write directly to the Judge.  Write to the Case Management Coordinator.  She will get the file and send it together with your letter to the Judge.  (On a practical level, over and above the impropriety of writing directly to a Judge, if you do so, the Judge gets your letter but nothing else i.e. not the file.  This then has to be sent for.  That is why you write to the Coordinator (whether Motions, Trial or Case Management) as then the file and your letter go to the Judge. 

18.             Although the Rules allow one to write to the Court to correct the Case Management Memorandum prepared by the Judge following the hearing, for the reasons set out above I believe that the letter should be directed to the Case Management Coordinator and not the Judge directly.  With that one exception, in my view it is almost never appropriate to write directly to the Judge.  If I was ever going to do so, I would first try to get agreement from other counsel as to the wording of a joint letter or at least give him or her an opportunity to see the draft letter and express a position before it was sent. 

19.             The Rules contemplate that there be at least 14 days notice of any adjournment.  In practice, the Court will normally allow adjournments well within that time frame if there is some good reason to do so.  If it is a seized Case Management Conference call the Family Trial Coordinator to get new dates, run the dates by the other counsel and then file a Request for Adjournment.  Given that dates may get taken by the time that I file my Request, I will usually indicate on the covering letter the other dates on which opposing counsel and I are available.

20.             The reality is that you should know at least a week in advance whether the Case Management Conference is going to be an useful exercise or not.  This can be simply because documents and information have not been exchanged, positions are still unclear, for whatever reason.  In that situation why not adjourn the Case Management Conference until you are ready to proceed?

21.             Keep in mind that if you are negotiating and a Petition has been filed, don’t run afoul of the 200 day rule.  The Court will have no way of knowing that you are negotiating.  If you get a 200 day notice then you obviously need to take steps to set the matter down for a Case Management Conference (assuming that you cannot file the settlement documents in time).  If you have lost contact with the client then do not under any circumstances set the matter down for Case Management Conference at which no one attends. 

22.             The Manitoba Court of Appeal decision in Taylor v. Taylor (2005), 16 R.F.L. (6^th) 226 sets out the ground rules with respect to orders of costs in the Case Management process.  At a minimum, the Case Management Judge must give the parties opportunity to speak to the award of as well as the quantum of costs.  This means that those submissions and the Judge’s decision must be monitored.  More to the point, the Court of Appeal decision confirms that a Case Management Judge does have jurisdiction to control judicial process and to award costs where one party’s conduct unnecessarily prolongs proceedings and where it is necessary to express disapproval of such behaviour.

23.             Keep in mind that once the matter is concluded and a Final Order has been signed, you cannot simply reconvene the Case Management Conference if there are some difficulties with respect to enforcing the Order.  There must be some pleading or other process before the Court in order for the Court to have jurisdiction to deal with the matter:  see Leskiw v. Leskiw, a recent decision ( March 29, 2006 ). 

24.             I attach a copy of a really useful summary of Case Management Practice Directions.  One comment:  the grounds for getting an adjournment within 14 days are not quite as onerous as the Practice Direction would lead you to think.