Publications
Caplan v. Atas, 2021 ONSC 670
In Caplan v. Atas, 2021 ONSC 670, Justice Corbett broke new ground and determined there is a tort of internet harassment.
The facts are quite detailed and involved. Briefly, the defendant, Nadire Atas, engaged in a “vile campaign of cyber-stalking” against the plaintiffs to exact revenge for “longstanding grievances”. Broadly speaking, Atas posted content online stating that the plaintiffs are (variously) dishonest, incompetent, negligent, unethical, and fraudulent, and in some cases are prostitutes, “sluts”, sexual predators and guilty of sexual criminality. Other posts did not have factual allegations but nevertheless contained abusive or insulting comments. All comments were either false or empty statements of moral condemnation. The comments were disseminated online over the internet on sites that did not monitor or control the posted content – e.g., Reddit, Pinterest, Facebook, Lawyerratingz, Blogspot, etc.
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https://otlablog.com/caplan-v-atas-2021-onsc-670/
Read the article as featured in The New York Times (subscription to the New York Times is required)
https://www.nytimes.com/2021/01/30/technology/change-my-google-results.html
OLD WHINE IN A NEW BOTTLE
More than 10 years ago, I and two colleagues proposed something radical: arbitrate all interlocutory and case management matters that were trapped in the court system. The idea was that the Action would remain in the court system and be eventually tried by a judge , but after the pleadings were exchanged, and an initial mediation held, the parties would be at liberty to immediately set down for trial. But any interlocutory motions and case management matters would be decided by the mediator/arbitrator who was retained at the commencement of the Action for that purpose. In effect, the idea was to privatize the then “Masters Office”.
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https://www.linkedin.com/pulse/old-whine-new-bottle-gary-caplan-ax4pc
Here Is A Sample: The Speedy Justice Agreement
Here is a pro forma draft of the Agreement. I welcome any comments.
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https://www.linkedin.com/pulse/here-sample-speedy-justice-agreement-gary-caplan-2zt3c
TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK CHAPTER 1: REIMAGINING MEDIATION
We all know that most commercial lawsuits settle. This is largely due to the combined effects of fee-shifting, the high cost of legal services, the lengthy time it takes to get to trial, and the unpredictability of trial outcomes. For most commercial disputes, there comes a time when the efficiency of a settlement trumps justice. The challenge for the advocate is to figure out when to settle and how to settle. Mediation affords litigants with that privilege-protected place where the warring parties can enjoy a formalized opportunity to speak openly to craft a deal.
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK- CHAPTER 2: ANOTHER WAY TO ASSESS RISK
Every litigation client, at some point asks: will I win? Lawyers typically respond with: “it depends”; or “we will have to see how the case unfolds”. Clients react with dismay: they want certainty and often wrongly interpret these responses to mean that the lawyer does not have “confidence” in the case or client or, worse, that their lawyer is not aggressive-enough.
By the time a mediation is held (typically after discoveries), clients want a deeper answer to the “will I win?” question. In this thought piece, I offer some tips on how to manage a client’s expectations on crafting a settlement and offer a different way to negotiate a mediated settlement.
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK: CHAPTER 3: OPPORTUNITY LOST: THE MEDIATION BRIEF
There is a vast literature on how to write a Factum, be it for a motion, trial, or appeal. The transcendental principles of Factum-writing are clarity, brevity, and persuasion.
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK: CHAPTER 4: HOW TO SETTLE COMPLEX MULTI-PARTY LITI
Let’s take an example of a factually complex, multi-party action. A newly built and registered condominium corporation suffers $1M in damages when a year-old make-up air handling unit (MAU) located on an upper floor failed, resulting in a catastrophic water/glycol flood over six lower floors. An engineering report commissioned by the corporation determines that the cause and origin of the loss was the failure of a plastic union installed a year earlier to repair a crack in the piping of the MAU.
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK- CHAPTER 5: THE SECRET SAUCE
Let’s return to the example of a complex multiparty commercial dispute described in Chapter 4. What is the recipe for a “successful” mediation?
Ingredients:
1 portion of trust in the skill of the mediator
2 or more lawyers interested in achieving a “fair “deal.
3 or more clients willing to insure against the risk that they will lose the trial.
4 portions of good faith bargaining.
$250,000 expended by each party on counsel from the outset of the litigation to the end of the trial
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK CHAPTER 6: WHEN TO ARBITRATE AND WHY
As I do in every mediation, I recently asked the parties and their lawyers if they would agree to arbitrate the issues raised in the lawsuit assuming no settlement was achieved at the end of the day. The clients looked somewhat bewildered, not understanding what I was asking. Both lawyers were reluctant to answer because they either did not appreciate that they had this choice of direction standing at the fork in the procedural road, or they knew little if anything of the arbitration process.
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TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK- CHAPTER 7: TRY A HOT TUB
Your expert says that the origin or cause of the loss is one thing. The expert retained by the other party says it’s another. The lawyers spend their time figuring out clever ways to challenge the assumptions, findings and conclusions of the adverse expert, with the trial being the usual culmination of that process.
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THE TANGIBLE EFFECTS OF INTANGIBLES
Barristers and mediators often overlook or minimize the effect of “intangibles” in negotiations and mediations. It is also common for clients to find it difficult to identify or express the “intangibles” that drive or are embedded in their stated legal positions. Sometimes, it is left to the skillful advocate or mediator to uncover and articulate these intangibles and if an intangible is uncovered and recognized, the real challenge is to put a value or weight on it in the process of determining risk.
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https://www.linkedin.com/pulse/tangible-effects-intangibles-gary-caplan-zfv4c