Rules of evidence as barriers to justice ...

The Small Claims Court of Nova Scotia permits an Adjudicator to "admit ... evidence at a hearing, whether or not ... admissible as evidence in a court." In other words, the Small Claims Court is not burdened with the strict, arcane and unwieldy laws of evidence that rule in the superior courts. Evidence is weighed according to its weight, not according to whether it is hearsay or not.

This is one of the main reasons that people can have their matters heard in the Small Claims Court in three months rather than three (or more) years, as is the case in the superior courts--and why it doesn't cost them a second mortgage in order to do it.

I wonder how much of the "normal" rules of evidence are a product of history. Centuries ago most legal documents were handwritten rather than printed, and questions of authenticity were difficult to answer. The rules of evidence developed to ensure that the court had some assurance that the documents (and evidence) were in fact authentic. But can we say that that problem is still with us? In today's society printed documents are routinely generated in the ordinary course of business. And isn't it the routine nature of that generation that guarantees a document's authenticy--and hence its reliability? And if that is the case, why the obsession with rules fashioned for an earlier age?

It is true that the common law and various evidence statutes have recognized the truth of this observation. But it seems to me that at a deeper level the rationale underlying this recognition has yet to be fully accepted. And until it is the courts will remain slow, cumbersome and expensive--and ADR process like those in arbitration or the Small Claims Court will be quick, flexible and inexpensive.

On-the-fly procedures ...

The other day I performed a med/arb fashioned by the parties. They recognized that there wasn't much dispute on the facts (as opposed to their legal consequences). They suggested that I meet with each side and hear their evidence (in the absence of the other), and then attempt to mediate a settlement. If that didn't work, I was to decide whether I had enough information to make a binding decision without a "formal" hearing. If so, they were content to let me make a decision. If not, I could hear evidence and cross-examination and then make a decision.

What I found interesting is that the parties recognized what most decision-makers will tell you: the issues that divide parties are rarely factual; they are more often about the emotional reaction of the parties or the legal inferences or consequences to be drawn from those facts. Why then is it necessary to burden the parties with the requirements of formal proof? Why not let them tell their story in their own words (which is what they so often want to do) and then provide them with a decision. Much quicker, much cheaper and, I believe, ultimately much more satisfying to the parties.