Legal Risk Management in the Department of Justice
Appendix C: Data Collection Instruments (cont'd)
Evaluation of Legal Risk Management
File Review - Litigation File
Overview
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1. File number
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2. Name of case
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3. Date file opened(mm/dd/yy) - Date file closed (mm/dd/yy)
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4. Lead counsel
Organizational unit:
- ±1 British Columbia
- ±2 Prairies
- ±3 Ontario
- ±4 Quebec
- ±5 Atlantic
- ±6 NCR - Civil Litigation
- ±7 NCR - Tax
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5. Portfolio of file:
- ±1 Aboriginal
- ±2 Business and Regulatory
- ±3 Citizenship and Immigration
- ±4 Tax
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6. Number of counsel on file
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7. Lead client department/agency
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8. Number of client departments/agencies
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9. Client is:
- ±1 Claimant
- ±2 Respondent
- ±3 Appellant
- ±4 Respondent on appeal
- ±8 Can't tell
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10. Level of court:
- ±01 Supreme Court of Canada
- ±02 Federal Court of Appeal
- ±03 Federal Court
- ±04 Tax Court of Canada
- ±05 Provincial Court of Appeal
- ±06 Provincial/territorial Superior Court
- ±07 Provincial Court
- ±66 Other, please specify
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11. Legal issue and brief description of case (without waiving solicitor-client privilege):
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12. What was the outcome of the case?
- ±01 Settled
- ±02 Court decision on merits in favour of government
- ±03 Court decision on merits in favour of other party
- ±04 Case dismissed
- ±05 Case withdrawn
- ±66 Other, please specify
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13. Has the case been appealed or judicially reviewed?
- ±1 Yes (If yes, remember to complete Appeal/JR section.)
- ±0 No
- ±7 Not applicable (cannot appeal from decision - e.g., Supreme Court file)
- ±8 No decision on appeal yet/can't determine
iCase information
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14. Potential client impact:
- ±01 Affects administration of justice/public confidence
- ±02 Affects federal, provincial or international relations, treaties or agreements
- ±03 Legal issues or events that may be controversial, attract significant national media attention, or involve Cabinet Ministers or prominent public figures
- ±04 Limitations of federal jurisdiction
- ±05 Major effect on fiscal resources of client or government
- ±06 Major effect on human rights, personnel, access and privacy, gender or diversity issues
- ±07 Major effect on law/ regulations of client or government
- ±08 Major effect on programs/policies/initiatives of client or government
- ±09 Major effect on relations with Aboriginal people, Métis
- ±10 Major effect on the Charter or Constitution
- ±77 Not applicable
- ±88 Unable to assess
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15. Complexity:
- ±1 Low
- ±2 Medium
- ±3 High
- ±4 Mega
- ±7 Not applicable
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16. Amount claimed ($)
- ±8 Unable to assess
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17. Possibility of settlement:
- ±1 Low
- ±2 Medium
- ±3 High
- ±7 Not applicable
- ±8 Unable to assess
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18. Settlement estimate ($)
- ±8 Unable to assess
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19. Risk level (1-9): . Earlier risk level (if available through iCase)
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20. Amount at risk ($)
- ±8 Unable to assess
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21. Contingent gain ($)
- ±8 Unable to assess
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22. Flags:
- ±1 Important/test
- ±2 Publication ban
Risk assessment [from file or from text fields in iCase (background, impact, and status)]
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23. What legal risks are identified? Please check all that apply. Only include if there is documentation that specifies risks (in iCase or in file); do not try to interpret information (e.g., counsel indicates difficult facts in memo in file; the researcher should not make their own decision that facts are difficult). You do not have to enter risks that are already listed under potential client impact in iCase (see Q14). You should include other risks that might be identified in the Background, Impact and Status sections of iCase as well as risks identified in the paper files.
- ±01 New/novel legal issue
- ±02 Constitutional or charter issue
- ±03 Issue with availability of evidence
- ±04 Issue with availability of affiants/witnesses
- ±05 Difficult facts to support claim/defence
- ±06 Unfavourable case law
- ±07 Significant media interest
- ±07 Potential to lead to termination or elimination of program
- ±08 Class action
- ±08 Cabinet Ministers or other prominent figures involved
- ±09 Legal issue considered controversial
- ±10 Case involves national security
- ±66 Other, please specify
- ±88 Can't tell
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24. Is there a risk level indicated in the file?
- ±1 Yes
- ±0 No (GO TO Q38)
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25. What is the initial (or only) risk level (1-9)?
- ±88 Can't tell
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26. Date of initial (or only) risk assessment:
(mm/dd/yy) -
27. At what stage in the case was the initial (or only) risk assessment done?
- ±01 Post-pleadings
- ±02 Post-discovery
- ±03 Pre-scheduled trial date
- ±04 After decision
- ±05 After appeal filed
- ±66 Other, please specify
- ±88 Can't tell
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28. Who was consulted in the initial (or only) risk assessment?
- ±00 No one indicated in file
- ±01 Client department/agency
- ±02 Client LSU
- ±03 Specialized unit within the Department (e.g., Public Law Sector or Policy Sector, etc.)
- ±04 Other potentially affected LSUs
- ±66 Other, please specify
- ±88 Can't tell
-
29. Was risk reassessed?
- ±1 Yes
- ±0 No (GO TO Q36)
- ±8 Can't determine (GO TO Q36)
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30. What is the final risk level (1-9)?
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31. Date of final risk assessment (mm/dd/yy)
- ±88 Can't tell
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32. Reasons risk was reassessed (from notes field in iCase, information found in file - circle which source used):
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33. At what stage in the case was the risk reassessed?
- ±01 Post-pleadings
- ±02 Post-discovery
- ±03 Pre-scheduled trial date
- ±04 After decision
- ±05 After appeal filed
- ±66 Other, please specify
- ±88 Can't tell
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34. Who was consulted in reassessing risk?
- ±00 No one indicated in file
- ±01 Client department/ agency
- ±02 Client LSU
- ±03 Specialized unit within the Department (e.g., Public Law Sector or Policy Sector, etc.)
- ±04 Other potentially affected LSUs
- ±66 Other, please specify
- ±88 Can't tell
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35. If case was reassessed to a higher risk level, did any of the following occur after the reassessment?
- ±01 Increased number of counsel on file
- ±02 Assignment of senior counsel to file
- ±03 Consideration of dispute resolution process
- ±04 Use of dispute resolution process
- ±05 Increased consultations
- ±06 Increased reporting
- ±66 Other, please specify
- ±88 Can't tell
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36. Was outcome of the case affected by the risk rating? (Only indicate if this is clear in the file - e.g., settled after risk level assessed at high and counsel indicates this as reason)
- ±1 Yes
- ±0 No
- ±8 Can't determine
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37. Was the decision on whether to appeal affected by the risk rating? (only indicate if this is clear in the file)
- ±1 Yes
- ±0 No
- ±7 Not applicable (cannot appeal from decision - e.g., Supreme Court file)
- ±8 No decision on whether to appeal yet/Can't determine
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38. At what stage were dispute resolution (DR) options considered?
- ±00 DR not considered (GO TO Q41)
- ±01 Post-pleading
- ±02 Post-production of documents
- ±03 Post-discovery
- ±04 Just prior to trial or hearing
- ±66 Other (please specify)
- ±88 Don't know/can't tell
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39. At what stage were DR options used?
- ±00 DR not used (GO TO Q41)
- ±01 Post-pleading
- ±02 Post-production of documents
- ±03 Post-discovery
- ±04 Just prior to trial or hearing
- ±66 Other (please specify)
- ±88 Don't know/can't tell
-
40. What DR options were used?
- ±00 DR not used
- ±1 Negotiation
- ±2 Mediation
- ±3 Arbitration
- ±4 Neutral evaluation
- ±66 Other (please specify)
- ±8 Don't know/can't tell
Communications
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41. Which of the following documents related to assessing and managing legal risk are in the file: (Check each type of document found in file)
Types of documents
- ±01 Risk assessment document
- ±02 Contingency plan
- ±03 Communication plan (should be part of contingency plan, but check to ensure it is)
- ±04 Briefing Notes
- ±05 Documents on roles and responsibilities from Civil Actions toolkit or similar document (e.g., for litigation strategy, dispute resolution, risk assessment, communication strategy, contingency planning, etc.)
- ±06 Early WarningNote for file
Other
- ±07 Media monitored (e.g., press clippings in file, etc.)
- ±66 Other risk-related documents (please specify)
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42. In developing legal risk management strategies, is there an indication in the file that any of the following were consulted?
- ±00 No consultation indicated in file
- ±01 Client department
- ±02 Client's LSU
- ±03 DOJ Manager
- ±04 Litigation or risk-related committee
- ±05 LRM contact person for region/section
- ±06 Specialized unit within the DOJ (e.g., Public Law Sector or Policy Sector, etc.)
- ±07 Potentially affected LSU
- ±66 Other (please specify)
- ±88 Can't tell
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43. Is there an indication in the file that any of the following stakeholders were advised of legal risks and risk-related events (i.e., did counsel report the files to senior management and others)?
- ±00 No indication that anyone was advised of legal risks in file
- ±01 Senior management in DOJ headquarters
- ±02 Regional managers
- ±03 Litigation or risk-related committees
- ±04 Client's LSU
- ±05 Client officials
- ±06 Portfolio managers
- ±66 Other (please specify)
- ±88 Can't tell
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44. Was the case included in any of the following?
- ±01 Early Warning Reports
- ±02 Top 100 High Impact Reports
- ±03 Radar Screen
- ±04 Scanning News
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45. Please include any other information that you believe would be useful in understanding how risk was assessed or managed in this file.
For all files where Q13 is yes (was appealed/JR)
iCase information (from Appeal/JR file)
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46. Potential client impact:
- ±01 Affects administration of justice/public confidence
- ±02 Affects federal, provincial or international relations, treaties or agreements
- ±03 Legal issues or events that may be controversial, attract significant national media attention, or involve Cabinet Ministers or prominent public figures
- ±04 Limitations of federal jurisdiction
- ±05 Major effect on fiscal resources of client or government
- ±06 Major effect on human rights, personnel, access and privacy, gender or diversity issues
- ±07 Major effect on law/ regulations of client or government
- ±08 Major effect on programs/ policies/initiatives of client or government
- ±09 Major effect on relations with Aboriginal people, Métis
- ±10 Major effect on the Charter or Constitution
- ±11 Matter of national interest
- ±77 Not applicable
- ±88 Unable to assess
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47. Complexity:
- ±1 Low
- ±2 Medium
- ±3 High
- ±4 Mega
- ±7 Not applicable
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48. Amount claimed ($)
- ±8 Unable to assess
-
49. Possibility of settlement:
- ±1 Low
- ±2 Medium
- ±3 High
- ±7 Not applicable
- ±8 Unable to assess
-
50. Settlement estimate ($)
- ±8 Unable to assess
-
51. Risk level (1-9)
-
52. Amount at risk ($)
- ±8 Unable to assess
-
53. Contingent gain ($)
- ±8 Unable to assess
-
54. Flags:
- ±1 Important/test
- ±2 Publication ban
Evaluation of Legal Risk Management
File Review - Non-litigation File
Overview
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1. File number
-
2. Name of case
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3. Date file opened (mm/dd/yy) Date file closed (mm/dd/yy)
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4. Type of file
- ±1 Advisory
- ±2 Policy/Program
- ±3 Legislative Services
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5. Lead counsel:
Organizational unit:
- ±1 British Columbia
- ±2 Prairies
- ±3 Ontario
- ±4 Quebec
- ±5 Atlantic
- ±6 NCR - Civil Litigation
- ±7 Policy Sector
- ±8 Legislative Services
- ±9 Public Law Sector
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6. Portfolio of file:
- ±1 Aboriginal
- ±2 Business and Regulatory
- ±3 Citizenship and Immigration
-
7. Number of counsel on file
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8. Lead client department/agency
-
9. Number of client departments/agencies involved
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10. Legal issue and brief description of case (without waiving solicitor-client privilege):
-
11. What was the outcome of the file?
- ±01 Client accepted legal risks identified and proceeded as originally planned
- ±02 Client accepted legal advice and adopted option to reduce/mitigate legal risks
- ±03 Litigation action/challenge brought against government
- ±04 Litigation action/challenge brought by government
- ±66 Other, please specify
- ±88 Can't determine
iCase information
-
12. Potential client impact:
- ±01 Affects administration of justice/public confidence
- ±02 Affects federal, provincial or international relations, treaties or agreements
- ±03 Legal issues or events that may be controversial, attract significant national media attention, or involve Cabinet Ministers or prominent public figures
- ±04 Limitations of federal jurisdiction
- ±05 Major effect on fiscal resources of client or government
- ±06 Major effect on human rights, personnel, access and privacy, gender or diversity issues
- ±07 Major effect on law/regulations of client or government
- ±08 Major effect on programs/policies/initiatives of client or government
- ±09 Major effect on relations with Aboriginal people, Métis
- ±10 Major effect on the Charter or Constitution
- ±11 Matter of national interest
- ±77 Not applicable
- ±88 Unable to assess
-
13. Complexity:
- ±1 Low
- ±2 Medium
- ±3 High
- ±4 Mega
- ±7 Not applicable
-
14. Amount at risk ($)
- ±8 Unable to assess
-
15. Risk level (1-9)
b. Earlier risk level (if available through iCase)
-
16. Amount at risk ($)
- ±8 Unable to assess
-
17. Contingent gain ($)
- ±8 Unable to assess
Risk assessment [from file or from text fields in iCase (background, impact, and status)]
-
18. What legal risks are identified? Please check all that apply. Only include if there is documentation that specifies risks (in iCase or in file); do not try to interpret information (e.g., counsel indicates difficult facts in memo in file; the researcher should not make their own decision that facts are difficult). You do not have to enter risks that are already listed under potential client impact in iCase (see Q12). You should include other risks that might be identified in the Background, Impact, and Status sections of iCase as well as risks identified in the paper files.
- ±01 New/novel legal issue
- ±02 Constitutional or charter issue
- ±03 Issue with availability of evidence
- ±04 Issue with availability of affiants/witnesses
- ±05 Difficult facts to support claim/ defence
- ±06 Unfavourable case law
- ±07 Significant media interest
- ±07 Potential to lead to termination or elimination of program
- ±08 Class action
- ±08 Cabinet Ministers or other prominent figures involved
- ±09 Legal issue considered controversial
- ±10 Case involves national security
- ±66 Other, please specify
- ±88 Can't tell
-
19. Is there a risk level indicated in the file?
- ±1 Yes
- ±0 No (GO TO Q31)
-
20. What is the initial (or only) risk level (1-9)?
- ±88 Can't tell
-
21. Date of initial (or only) risk assessment (mm/dd/yy)
-
22. At what stage in the file was the initial (or only) risk assessment done?
- ±01 During policy, program, legislation or regulation development
- ±02 After policy, program, legislation or regulation development and during implementation phase
- ±03 In anticipation of or in preparation for litigation challenge
- ±66 Other, please specify
- ±88 Can't determine
-
23. Who was consulted in the initial (or only) risk assessment?
- ±00 No one indicated in file
- ±01 Client department/ agency
- ±02 Client LSU
- ±03 Specialized unit within the Department (e.g., Public Law Sector, Policy Sector, Legislative Services)
- ±04 Other potentially affected LSUs
- ±66 Other, please specify
- ±88 Can't tell
-
24. Was risk reassessed?
- ±1 Yes
- ±0 No (GO TO Q31)
- ±8 Can't determine (GO TO Q31)
-
25. What is the final risk level (1-9)?
- ±88 Can't tell
-
26. Date of final risk assessment (mm/dd/yy)
-
27. Reasons risk was reassessed (from notes field in iCase, information found in file - note which source used):
-
28. At what stage in the case was the risk reassessed?
- ±01 During policy, program, legislation or regulation development
- ±02 After policy, program, legislation or regulation development and during implementation phase
- ±03 In anticipation of or in preparation for litigation challenge
- ±66 Other, please specify
- ±88 Can't determine
-
29. Who was consulted in reassessing risk?
- ±00 No one indicated in file
- ±01 Client department/ agency
- ±02 Client LSU
- ±03 Specialized unit within the Department (e.g., Public Law Sector, Policy Sector, Legislative Services)
- ±04 Other potentially affected LSUs
- ±66 Other, please specify
- ±88 Can't tell
-
30. If case was reassessed to a higher risk level, did any of the following occur after the reassessment?
- ±01 Increased number of counsel on file
- ±02 Assignment of senior counsel to file
- ±03 Consideration of dispute resolution process
- ±04 Use of dispute resolution process
- ±05 Increased consultations
- ±06 Increased reporting
- ±66 Other, please specify
- ±88 Can't tell
-
31. Were dispute resolution (DR) options considered?
- ±1 Yes
- ±0 No (GO TO Q33)
- ±88 Don't know/can't tell
-
32. What DR options were used?
- ±00 DR not used
- ±66 DR method used
- ±88 Don't know/can't tell
Communications
-
33. Which of the following documents related to assessing and managing legal risk are in the file: (Check each type of document found in file)
Types of documents
- ±01 Risk assessment document (including legal opinions setting out risks and options to mitigate/avoid risks)
- ±02 Contingency plan
- ±03 Communication plan (should be part of contingency plan, but check to ensure it is)
- ±04 Briefing Notes
- ±07 Media monitored (e.g., press clippings in file, etc.)
- ±66 Other risk-related documents (please specify)
Time frame
(Check all that apply)-
43a. Initial date on document (mm/dd/yyyy)
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43b. When were contingency plans drafted?
- ±1 After risk was initially assessed
- ±2 After risk assessment level changed
- N/A
-
43c. When were the Briefing Notes drafted?
- ±1 After risk was initially assessed
- ±2 After risk assessment level changed
- N/A
-
34. In developing legal risk management strategies, is there an indication in the file that any of the following were consulted?
±00 No consultation indicated in file
- ±01 Client department
- ±02 Client's LSU
- ±03 DOJ Manager
- ±04 Litigation or risk-related committee
- ±05 LRM contact person for region/section
- ±06 Specialized unit within the DOJ (e.g., Public Law Sector or Policy Sector, etc.)
- ±07 Potentially affected LSU
- ±66 Other (please specify)
- ±88 Can't tell
-
35. Is there an indication in the file that any of the following stakeholders were advised of legal risks and risk-related events (i.e., did counsel report the files to senior management and others)?
- ±00 No indication that anyone was advised of legal risks in file
- ±01 Senior management in DOJ headquarters
- ±02 Regional managers
- ±03 Litigation or risk-related committees
- ±04 Client's LSU
- ±05 Client officials
- ±06 Portfolio managers
- ±66 Other (please specify)
- ±88 Can't tell
-
36. Please include any other information that you believe would be useful in understanding how risk was assessed or managed in this file.
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