Litigation Branch Evaluation Final Report

1. Is there a continued need for Litigation Branch legal services?

TB core issue 1

• Trends in demand for Litigation Branch services
• Number of actively managed files by fiscal year and type of service (litigation, advisory, other)
• Total hours of legal services by fiscal year and type of service (litigation, advisory, other)
• Legal practice trends (type of legal issues by fiscal year)
• Trends in file complexity and risk level by fiscal year and type of service (litigation, advisory, other)

• Document review (e.g., iCase, environmental scan of practice trends, action plan reports)

• Legislative and policy requirements

• Document review (e.g., legislation and policy documents)

2. Does the delivery of legal services by the Litigation Branch continue to respond to federal government priorities?

TB core issue 2

• Alignment of the Litigation Branch mandate and activities with federal priorities/policy commitments
• Assessment of how the Litigation Branch contributes to the priorities and objectives of the federal government

• Document review (documentation describing Litigation Branch mandate/ activities and relevant federal priorities)
• Key informant interviews

3. Is the provision of legal services by the Litigation Branch consistent with the Department of Justice Act and the departmental mandate?

TB core issues 2 and 3

• Assessment of extent to which Litigation Branch legal services are consistent with Department of Justice Act and departmental mandate

• Document review (legislation and policy documents)
• Key informant interviews

4. Does the Litigation Branch provide timely, responsive, high-quality litigation services and legal advice?

• Compliance with Service Standards
• Assessments by the Litigation Branch and the client departments on litigation services and legal advice in terms of:
• clarity
• timeliness
• meeting deadlines
• understanding nature of problem
• providing updates/progress reports
• involving the client department in development of legal strategy and positions
• developing legal strategies appropriate to client department policy and/or program objectives
• effectively working with the client department to identify and manage legal risks
• overall quality

• Document review (Justice Canada Client Feedback Survey)

• Key informant interviews
• File review
• Case studies
• Focus groups

5. To what extent does the Litigation Branch provide consistent advice and take consistent legal positions?

• Existence of structures to ensure consistency (e.g., Litigation committees, practice groups, practice directives, knowledge management system, Justice National Security and Intelligence Committee)
• Use of consultations for the purpose of ensuring consistent advice is given and consistent legal positions are taken across government
• Assessment of the consistency in approach to legal issues

• Document review
• Key informant interviews
• File review
• Case studies
• Focus groups

6. Are legal risks identified and assessed in a timely and consistent manner?

• Use of processes, tools, and standards for assessing legal risk

• Document review
• Key informant interviews
• File review
• Case studies

• Number and percentage of files “unable to assess” and length of time before assessment entered
• Average number of risk assessments/reassessments per file

• Document review (iCase reports)
• File review
• Case studies

• Consistency of language used in assessing and communicating legal risk
• Consistency of risk ratings
• Timeliness of assessments/ reassessments of legal risk
• Use of consultations to discuss and assess legal risks

• Key informant interviews
• File review
• Case studies
• Focus groups

7. Has the Litigation Branch contributed to the enhanced understanding of legal issues, their implications, and potential risks by decision-makers?

• Memoranda of understanding outlining roles and responsibilities related to legal risk
• Communication of legal risk management strategies and mitigation measures to client departments
• Assessment of the Litigation Branch contribution to improved understanding of legal issues and legal risks by clients

• Document review
• Key informant interviews
• File review
• Case studies
• Focus groups

8. Do counsel have the appropriate training, tools, structures, and resources to support the delivery of legal services?

• Nature and type of tools and structures
• Best practices
• Practice directives
• Practice groups
• Committees
• Use of tools and structures

• Document review
• Key informant interviews
• File review
• Case studies

Evaluation

Evaluation Division

• Satisfaction with tools, structures, and resources

• Nature and frequency of training
• Alignment of training with individual learning plans
• Number of counsel and support staff trained

• Document review (reports on training activities)

• Satisfaction with training

• Key informant interviews

• Level and sufficiency of resources (human, financial, information, training, technological) to support Litigation Branch work

• Document review
• Key informant interviews

9. To what extent does the Litigation Branch contribute to informed ministerial decision making?

• Provision of timely legal advice with options, implications, and recommendations
• Development of operational frameworks and policies to guide decision making (e.g., Legal Services Contracting Framework)
• Decision-making processes are followed and documented (e.g., for decisions on court interventions, appointing agents, and whether to surrender individuals to foreign countries)

• Key informant interviews
• File review

10. To what extent are delegated ministerial functions effectively managed?

• Decision-making and monitoring processes are followed and documented (e.g., for delegated responsibilities under the Extradition Act, the Mutual Legal Assistance in Criminal Matters Act, and section 38 of the CEA)
• Appropriate information management practices are followed in offices with delegated functions to support accurate measurement of resource utilization

• Key informant interviews
• Case studies
• File review

11. To what extent does the Litigation Branch provide effective advocacy of a whole-of-government approach?

• Assessment that an integrated, whole-of-government approach is used in provision of legal services, where appropriate
• Counsel work collaboratively within Justice
• Counsel consult with clients and other stakeholders to develop legal positions and strategies that consider the interests of government, where appropriate, as opposed to exclusively considering individual client interests
• Use of peer review processes, such as Litigation committees

• Key informant interviews
• File review
• Case studies
• Focus groups

12. Is Litigation Branch legal advice considered by government decision-makers?

• Consideration of Litigation Branch legal and legal policy advice by decision-makers in program and policy development (e.g., evidence of consideration of legal advice in client instructions)
• Litigation Branch and client’s assessment of legal advice in terms of :
• involving the client in development of legal strategy and positions
• developing legal strategies appropriate to the client’s policy and/or program objectives

• Document review (Justice Canada Client Feedback Survey)
• Key informant interviews
• File review
• Case studies
• Focus groups

13. Are legal risks managed and mitigated effectively?

• Consideration of legal risk in the development and implementation of client policies, programs, and litigation strategies
• Use of legal advice to prevent, mitigate, and/or manage legal risk
• High-risk files are resourced and communicated appropriately (e.g., early warning reports, level of senior counsel involvement)
• Contingency plans are used for high-risk files
• Assessment of the effectiveness of management and mitigation strategies

• Document review (Justice Canada Client Feedback Survey, iCase)
• Key informant interviews
• File review
• Case studies
• Focus groups

14. How does the Litigation Branch contribute to Justice Canada’s support of a bijural and bilingual legal system?

• Consultations regarding bijural aspects of legal issues
• Practice groups and other structures within the Litigation Branch that involve practitioners of both legal systems
• Internal policies that reflect and support the bijural and bilingual legal system
• Assessment of the Litigation Branch and litigation function as a centre of expertise for providing litigation services in a bijural and bilingual legal system

• Document review
• Key informant interviews
• File review
• Case studies
• Focus groups

15. To what extent does the Litigation Branch contribute to a federal government that is supported by effective and responsive legal services?

• Contribution of Litigation Branch to provision of effective, responsive legal services

• Document review
• Key informant interviews
• File review
• Case studies
• Focus groups

16. To what extent does the Litigation Branch contribute to a fair, relevant, and accessible justice system that reflects Canadian values?

• Contribution of Litigation Branch to a fair, relevant, and accessible justice system that reflects Canadian values

• Document review
• Key informant interviews
• File review
• Case studies
• Focus groups

17. What factors are contributing to or constraining the achievement of expected outcomes?

• Constraints on ability to achieve outcomes
• Factors supporting achievement of outcomes

• Document review
• Key informant interviews
• Case studies
• Focus groups

18. Is the Litigation Branch facing any challenges in terms of available funding, organizational structure/staffing, or internal support (training, technological, research)?

• Forecasted resource needs compared to available resources
• Identified resource challenges
• Assessment of the effectiveness of Litigation Branch organizational structure

• Document review
• Key informant interviews
• Case studies
• Focus groups

19. Could the work of the Litigation Branch be undertaken/conducted more efficiently and economically?

• Mix of legal resources (FTEs/hours by group and level) by file complexity and level of risk
• Resources are allocated in line with Business Plan and agreements with clients

• Document review (including iCase data)

• Measures in place to manage efficiency and cost of legal services and their effectiveness (e.g., Law Practice Model; practice groups; use of standardized processes, practices, approach to assigning work and determining when to use agents, information management tools such as iCase)
• Suggestions for improvements in efficiency

• Document review
• Key informant interviews
• Case studies
• Focus groups

• Alternative approaches to service delivery
• Trends in law practice/service delivery models

• Literature review

• Comparison of billing rates with private bar

• Comparison of rates (iCase data with private bar rates from Canadian Lawyer survey and/or queries with large and mid-size law firms about rates for litigators based on years of experience)

20. What is the role of the client in the effectiveness, efficiency and economy of legal services?

• Role and responsibility of the client in managing demand for legal services
• Assessment of the client’s effectiveness in managing its demand for legal services
• Use of early dispute resolution by the client to settle files without involving Litigation Branch services
• Receptiveness to use of alternative dispute resolution practices
• Timely involvement of Litigation Branch by the client

• Document review
• Key informant interviews
• Case studies
• Focus groups

21. Is Litigation Branch able to achieve appropriate resolution of litigation cases in a timely, cost-effective manner?

• Cost of legal services relative to file outcome (success rate), and impact
• Hours spent per closed file by complexity and legal risk
• Number and percentage of files settled/closed without going to court

• Document review (iCase)

• Use and effectiveness of strategies to promote timely, cost-effective resolution
• Early resolution strategies
• Alternative dispute resolution practices, where appropriate
• Assessment of whether litigation cases are resolved in timely, cost-effective manner

• Key informant interviews
• File review
• Case studies
• Focus groups