Applying a litigation lens from the outset of a project

Dennis Mahony (00:13): Hi, everybody. My name is Dennis Mahony. I'm the head of our environmental health and safety group, and I'm joined by my litigator colleague, Jon Silver. Both of us work regularly on major projects, and major projects permitting in particular. And Jon is going to introduce what this short video will be about. Jon?

Jon Silver (00:31): Yeah, well we are doing our video series on navigating project disputes. And our focus today is on permitting. When you think of a permitting dispute after a major project approval is issued, you know, you tend to think about injunctions or appeals, or judicial reviews. And our colleagues, Andrew and Yael, are going to speak about those types of messy conflicts in another video in this series.

Today, we're going to start much earlier and discuss the importance of applying a litigation lens from the beginning of the project. So, Dennis, why don't you explain what we mean when we say “litigation lens”?

Dennis Mahony (01:10): Yeah, happy to do it, Jon. “Litigation lens” is our own catch phrase. We invented it. We haven't trademarked it, but we're happy to use it. And others at different firms will have different names for it. It's our short form for building a consideration of future potential litigation into the project planning process. So one of many objectives, for example, in building a planning -- and planning a facility, might be, for the building, to withstand a 100-year storm event.

So for major projects, withstanding litigation risk needs to be added to that kind of list early on. You don't wait until your building foundation is leaking to begin thinking about storm event risk mitigation. Litigation risk is the same. If you don't think about it early, you're not able to take those mitigative steps in order to reduce the risk.

So the goal in applying the lens really is threefold. First one, identify early on the kind of litigation challenges that the project might face. And that is in order to minimize the risk that they'll ever be filed. But in a major project, that's a tough ask. What you're really doing is trying to minimize the risk that that litigation will be successful and cause a major source of delay.

Jon Silver (02:31): And so what are some of the examples of how you apply a litigation lens early on in the project?

Dennis Mahony (02:36): Well, Jon, I'm going to give you two examples that I know you're familiar with. And they'll seem counterintuitive to some folks at first. The first is in the area of project location or design planning. The second example I'll give is with respect to technical or expert reporting. And on the face of it, both of these areas are the obvious preserve of engineers and subject matter experts.

So let's talk about the first one. I'll give you an example of routing. For example, one of the projects we're working on now, routing a major linear project, let's say a highway or a transmission line. The engineers come across some endangered species’ habitat when they're plotting out what the route is going to look like. They huddle with their environmental experts, and together they decide they'll apply for a permit and press on.

Now, what we do in that circumstance, Jon, is, you know, as we say, just a minute, let's apply the litigation lens, to determine the likelihood and strength of potential legal challenges on that scenario. And to think very carefully about what project delays might arise as a result.

So one outcome of the application of that lens is that the engineering and project team thank us for our input, and decide that it actually makes sense to steer around that endangered species’ habitat. Another is that the team decides it will stay the course, but they now fully appreciate the risk and they can build that into the schedule. So that's the first example. The second example’s another one I'll pick up on the same line is, let's go to the technical reporting.

In your application processes, as you know, Jon, you'd have to file a species at risk report on the actual subject. The species, let's use an example, is, we get a turtle expert, who's engaged in filing the report. Experienced project lawyers know that application filings like that regularly become very important exhibits in litigation. And we just had a ruling very recently which is heavily focused on that particular species.

So most technical experts, when they're drafting those reports, they don't think about that: litigation that may be years in the future is the furthest thing from their mind. So we, with a very light touch, as you know, like to look at those reports and just see that they're crafted in a way that not just a technical audience can absorb them, but also a court can absorb them.

And I know, Jon, you spend a lot of time doing exactly that. So, why don't you talk for a minute about what happens to those reports, once they get in front of a court?

Jon Silver (05:22): Yeah. So, you're right, Dennis, those reports get filed with the approval authority. And once that issue gets to the court, those reports are what the court considers. You don't get to revise them when the litigation commences three years later. And so, even if at the approval stage, your audience is the approval authority, you have to be thinking about your audience being the court as well.

Now, an approval authority or an environmental panel may have a deep expertise in the issues that you're filing your report about. And that's going to help them wade through dense subject matter, understand exactly how the issues might affect the, you know, the turtle species at risk, but a judge won't have that expertise. So applying a litigation lens early can help you ensure that the materials you file have enough detail to satisfy the subject matter expert, but also include enough plain language that it can speak to a judge as well. You can include summaries, overviews that help the reader digest that material.

Dennis Mahony (06:27): Yeah, and Jon, in my experience, and yours as well, I know, it's very surprising how a light touch when the report is being drafted makes so much of a difference in the litigation to come. Why, why don't you talk a little bit about what kind of lawyer is best suited to work on the permits and to apply the litigation lens.

Jon Silver (06:48): Well, you know, we work in teams at Torys, and our best scenario is one where we have a team that has regulatory experts in the approval regime and also experts with litigation expertise. Sometimes that's one lawyer, but more often than not, especially on the big projects, it's a combination of team members. So, when a big project approval file comes in, you know, we usually have a litigator on the file right from the outset because litigators like me spend all day, every day on written and oral advocacy.

So, for a litigator, applying a perspective of "how is a judge going to read this" is sort of automatic. So, but I also work on regulatory matters daily. And so, I can understand the issue from a regulatory perspective. But I can also apply that litigation lens to it. Another thing that litigators sort of bring to the table is that we understand on both a granular level and sort of at a broader level the type of court cases that may lie ahead.

And we've worked on many cases where the project approval team, the project approval has been challenged by a project opponent and having a litigator involved to understand the issues that a court may eventually consider really helps flag risks and decision points far out enough in advance that they can be addressed, early enough that, you know, when it gets to the court, you've already dealt with it.

Dennis Mahony (08:13): Yeah. And why don't you address – that's all super important. And I think we are certainly one of the firms who brings in our litigation team very early. Oftentimes litigators aren't seen on these projects until after the storm breaks out. So why don't you, to put a point of emphasis on this, tell us why you like to be involved for years before the actual litigation breaks out?

Jon Silver (08:41): You know, ultimately, if you're going to defend an approval, there's no better way to increase your chances of success than to be on the ground developing the record, in front of the approval authority. So, as I mentioned, you can't revise the filing once it goes before the court, you're stuck with those materials and, you know, whether the environmental assessment panel looked at it or not, that's going to be what's before the court.

And so, in my experience, it's much easier to defend an approval for a record that you've worked on for years, you know, applying your litigation lens, making those key decisions early on, ensuring that the materials are clear, that can be understood by a court. It's much easier to defend that type of record than to defend an approval where no one on the project team gave really any thought to future litigation.

Dennis Mahony (09:32): Yeah. And to be clear, as you know, there are a large number of additional other areas in which the litigation can and should be applied. One which we haven't talked about is the application process itself and the steps to be taken in the application process, which ultimately get reviewed by a court. And it's just another example where the litigation lens can be applied very sparingly early on to great result in the long term.

So thank you everybody for joining us for this short discussion. We hope you found something useful in it. Be sure to check out our other videos in this series. And again, we appreciate you taking the time.