CKNW Editorial
for June 2, 2000

There’s something that’s been on my mind for a long time and it’s a thought I want to leave you with as I go away for a vacation. I probably haven’t dealt with it before because I suppose once a lawyer, always a lawyer.

And that’s a good starting point. The legal profession is an honourable one as a profession and it’s one I’ve been proud to be a part of. But it is not written anywhere I know that the cost of using a lawyer for what is a routine dispute must be devastating if you win and ruinous if you lose. Moreover, it’s not written anywhere that good lawyers should make high six figure even seven figure incomes a year.

Now I believe in the marketplace but here we’re talking about a distorted marketplace, namely the court system. Because the road to a court of justice is so contorted and because the lawyer makes his living by being able to charge by time spent, with many built-in ways to make more billable time pass, the cost of getting justice – if indeed that’s what you can call it – is utterly unreasonable.

Let me give an example of what I mean. If one wishes to challenge a court maintenance order … in other words you think that under the circumstances the amount you’ve been ordered to pay your wife or husband – is under all the circumstances unreasonable because circumstances have changed you must be prepared to pay somewhere between $10,000 – 20,000 for the privilege. Now the issue may be very simple. You may simply want to bring to the court’s attention that there have been changes since the last order … perhaps a remarriage … perhaps that your former spouse simply will not seek employment … it could be any number of factors. You would think that in a civilized country you could simply take that matter to a judge almost immediately and get a ruling. The fact is that you’ll likely find yourself involved in a paper war with every phone call and utterance costing you a fortune and every imaginable, and hugely expensive roadblock put in the road to the judge’s chambers.

What has prompted this? Not, as you might have imagined, a personal matter but one involving a radio personality who sued his former employer, not this station, for whom he once worked. He lost … which is not the point. What is the point is that in order to test a question of breach of contract he had to risk, and now find as a reality, financial ruination. And it was all done, of course, within the rules of court. Letters at a couple of hundred dollars a pop had to be written. Telephone calls which, however brief, are charged out at .1 an hour or about $30 dollars for a 30 second call. No one spends 6 minutes on a simple phone call but that’s what you’ll be charged – believe it. Hugely lengthy examinations for discovery and several thousand dollars each so each side can learn what they already know. Chambers applications for anywhere from $500 – 1000 per. And then trial at, if you’re lucky, two or three thousand a day. Before that, of course, there will have been several applications by one side or other to adjourn and probably a couple of other interlocutory applications at perhaps $1000 each. At the end of a long tormenting 18 months minimum you will face a bill of about $15-25,000 for your own lawyer and, if you’re lucky, $10,000 in legal costs. All this which, if the matter had been for under $10,000, you could have had arbitrated by a small claims judge.

The question is, then, a simple one. If the matter involves simple issues that big companies are now, because of the huge legal costs involved, being submitted to arbitration, why must it cost between $25,000-50,000 to litigate?

A man thinks that a company has not been fair. The company disagrees. How in hell can that sort of garden variety issue wind up being ruinous to one party and in some cases both? Is this the justice system of which we’re so proud?

If two former spouses disagree, why should lawyers profit on their inability to find a way out of court.

Of course there is arbitration available, but only if both parties agree … and the party that has the most money is not likely to want to agree.

We talk a lot about the criminal justice system but the real scandal is in the civil system where the party that has the money wins and then only relative to the losing party – in fact it’s a rare case where there is any winner except the lawyers and, of course, the judges who, not being susceptible to the workings of the marketplace, don’t have to concern themselves with the tooing and froing of the lawyers who happily lurch from one letter and phone call to an other, from one profitable application to the next and through timeless examinations for discovery which discover nothing that everyone doesn’t already know. Most lawyers know about, or have hanging on their walls, a wonderful cartoon which shows a cow – the person pulling on the tether is shown as the plaintiff, the one pulling the tail the defendant … and the one milking the cow is the lawyer.

There is little or no civil justice in this country because only the well off – and not many of them - can afford it.

And that is the scandalous truth.