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Christopher Sugrue Won the Battle of Attrition

September 14, 2014


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Daniel
Scorched Earth Litigation
Posted by Mr. Daniel D. on Oct 7th, 2013 11:57am
A judge recently told me that he was often skeptical of arguments made by those lawyers he considered to have a “scorched earth” approach to litigation.

I nodded in what I hoped the judge would perceive as my agreement that a “scorched earth” approach is to be discouraged and that I would never stoop to such.

I thought to myself:  “what the heck is a scorched earth approach?”  Does it differ from defending vigorously, leaving no stone unturned, carefully scrutinizing the evidence, having the temerity to challenge the opposing party’s credibility or defending “aggressively” – a pejorative directed at me recently by opposing counsel during a pre-trial?

One does not want to employ illegitimate tactics.  But I have found, to my relief, that employing a scorched earth approach to litigation is far different from defending aggressively if that defence is based on the merits.

The term “scorched earth” is often seen but less frequently defined in the cases – usually in rulings as to
costs.  As a matter of law, the term appears to describe the tactics of counsel or litigants who have made no concessions, ignored their obligations and/or left no issue unargued, however peripheral or lacking in merit.[1]

Ronald Hicks has described “scorched earth practice” as involving:

“tons of motions, interrogatories, document requests, deposition notices and other pre-trial disputes as a way to run up the costs of litigation, so that eventually the opposing party will want to settle the dispute for relatively little money or go broke trying the case”.[2]

A “scorched earth approach” appears therefore to be directed to perverting justice.  The adversary does all it can to “wreak havoc,” cause undue frustration or force the adversary to fund never-ending costs.  Procedural rules are not used to bring a dispute properly before the court but, rather, to avoid doing so.

I suspect that very few lawyers see this as legitimate.  No member of the Advocates’ Society would.  However, a law firm is described as having advertised as follows:

“Do you have a possible court case where you really want to “get” someone? Then hire us…as your warriors…Unlike other attorneys who groove on friendship and politics when dealing with the other side, we’re for you, all the way. For us, the other side is not merely an opponent-they’re the enemy!

For us, litigation is war. We’ve given the term “scorched earth litigation” new meaning with unusual, but effective, actions and tactics- sometimes unpleasant but all within the law. We carpet bomb the other side with discovery, and our deposition questions are like hellfire missiles.”[3]

The term apparently originated in the context of war.  Retreating armies destroyed or dismantled everything that might be useful to the advancing enemy, including food sources, transportation, communications and industrial resources.  Factories have been destroyed, villages burned, streets mined and farm produce destroyed or taken by those retreating.    

People, and/or their descendants, who have experienced this war strategy might question the sensitivity of using it to describe an approach to litigation. However, the term may be seen as illustrative of the damage to litigants and also the administration of justice that results when a party’s objective is not justice but, rather, avoiding justice.

The term “scorched earth” is not found in the Rules of Professional Conduct.  However, several sections may relate to this approach to litigation.  Adherents of a “scorched earth” approach to litigation may wish, for example, to review the Commentary to Rule 4.01, which confirms that a lawyer must act:

“resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.

Rule 6.03(1) provides:

“a lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealing in the course of his or her practice”.

The duty to be a zealous advocate does not trump the duty to act civilly regardless of the instructions of one’s client.[4]

In Cook v. Cook, (2011) CarswellOnt 4489, 204 ACWS (3d) 743 (OSCJ), a mother was granted full indemnity costs against the father of her children because he was acting with a scorched earth policy. The father was held to have “stonewalled” (another war allusion) on disclosure, despite a court order that he provide financial statements.  The judge perceived that the father was trying to “run the mother out of money” to force her to give up her claim.[5]

In Bishop v. Bishop, (2011) ONCA 211, 200 ACWS (3d) 1021 (OCA), a litigant was held to have adopted a scorched earth approach by instituting various judicial and non-judicial proceedings including an Application, an appeal therefrom, a complaint to the Law Society, a Superior Court Action, an O.P.P. investigation and complaints to the American Embassy, Canadian Judicial Council, Police Services Board, CIBC and the College of Physicians and Surgeons.[6]  Full indemnity costs of over $28,000 were awarded against him.[7]

Sechon v Allison, (2012) CarswellOnt 14728, ONSC 3840, 223 ACWS (3d) 37 (OSCJ) was a contract law
case involving a breach of a contract with a bank. The Defendants took a scorched earth approach resulting in the trial taking six unnecessary days.[8]  The Defendants admitted nothing, failed to disclose documents and sought to introduce documents that had already been ordered excluded.  They also sought to take advantage of the Plaintiff before and after the proceedings; they treated him like a piece of a game which they found entertaining and “used him as a dupe”.[9]   For causing an unnecessarily long trial, the Defendants were ordered to pay $25,000 in costs.

Beyond cost sanctions, there are a number of negative repercussions from scorched earth litigation.  Resultant ill-will between both parties may be harmful if they must continue to interact.  For example, in family law cases where parents will need to cooperate concerning their children.

In any event, we are officers of the court.  Ignoring disclosure obligations, bringing unnecessary motions and arguing unnecessary points of law may impair the search for the truth and the judge’s ability to do justice.  Advocates do not win at all costs.    

 

 

 

[1] Hunter, Martin & Barbuk,
Alexei. Procedural Aspects of
Non-Disputing Party Interventions in Chapter 11 Arbitrations. 3 Asper Rev
Int’l Bus & Trade L 151 (2003) p. 169.

[2] Hicks, Ronald. Strategies and Tips for Dealing with Dirty
Litigation Tactics by Opposing Counsel. Meyer, Unkovic, & Scott LLP
found at http://www.dri.org/DRI/course-materials/2013-Employment/pdfs/08_Hicks.pdf.
P. 159.

[3] “This is why I stopped practicing law, but you may want to hire this man”. For what it’s worth. Found at http://christopherfountain.wordpress.com/2010/02/22/this-is-why-i-stopped-practicing-law-but-you-may-just-want-to-hire-this-man/.
February 22 2010.

[4] Ibid at p 7.

[5] Para 2.

[6] Bishop v Bishop, (2010) CarswellOnt 10830, ONSC 6314 (OSCJ).

[7] Ibid at para 18.

[8] Para 8.

[9] Para 3 & 4.


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