CKNW Editorial
for March 15, 2001

This might sound like the ex hooker getting married in white but a call yesterday compels me to unburden myself.

The cost of using the courts in this province are prohibitive and something must be done about it.

First off, where is it written that lawyers must be wealthy? No one denies the labourer his hire but the costs of a lawyer are well beyond the ability of the average person to bear. Moreover, lawyers’ bills, for the most part, are padded with expenses for which you received not the slightest benefit. Let’s take some examples. If my last legal bill is any example, I paid for several adjournments of the hearing that I distinctly didn’t want. I wanted the matter over and done with. Adjournments for illness or that sort of thing I can understand. But why on earth should I pay for hearings before the judge where the only issue is whether or not the matter will be heard that day? Even worse, on two occasions I paid for a half day’s hearing when I distinctly got no benefit. The judge at the outset said the matter had to be concluded in two hours, the lawyers said it could be, it wasn’t, the judge excused himself from the case and back we went for another judge on another day. Why the hell should I pay for that? If the judge and the lawyers can’t keep to their agreement why should I pay?

Another neat little bit of padding that adds up nicely. Let’s suppose your lawyer charges $250 per hour – almost slave wages by modern legal standards. Do you know that every phone call he makes costs you a minimum of $25? Even if he phones the other lawyer and says "Hi Charlie, all set for tomorrow? Good. See you then" … he chalk up another .1 of an hour and another $25 for the firm. And who can ever know if all those phone calls were of any importance or, indeed, if they even actually took place?

Then there are examinations for discovery – a veritable gold mine for the profession. On a case where perhaps 10 words are being examined as to whether or not they are defamatory you can be days in examinations for discovery. Days!

Now, wasn’t it the same when I practiced? To some degree yes but not nearly to the degree it is today. For one thing, judges were very reluctant to grant adjournments. Moreover, most of them ran very tight ships at trial. They made you get on with it. And on examinations for discovery counsel made damned sure that his client didn’t get asked the same question twice – once was all you got.

But there has got to be more to it than that. Since I last practiced law the population of this province has increased by ¼ yet there are about 5 times as many superior court judges sitting … and they complain that they are overworked. What gives?

Moreover, instead of the law working its way towards letting people do their own disputes, the very opposite is the case. Let me give you an example. Suppose you are ordered by the court to pay your ex spouse maintenance. Suppose your spouse remarries and, it is rumoured, is doing much better than at the time of the order. The law is that if there is a change in circumstances the court can vary the order. So far, so good. So you ask your spouse information as to the present circumstances. It is refused. So your lawyer tries to apply a procedure know as interrogatories which, as the word suggests, is simply posing a number of questions. They are refused. You ask a judge to enforce the request and guess what happens? The judge says you must start an action to vary the maintenance before you can get an answer as to whether or not you are entitled to start the action to vary the order for maintenance! Talk about Catch-22! Moreover, here’s a other little tid bit for you. Suppose you are not the only spouse your ex has had. If the court orders maintenance against you just because you are the one your ex-spouse chose to sue, you’re stuck! You’re stuck, all by yourself though there may have another ex, even though you may have raised his kids for him without a nickel of support. "If the law supposes that", said Mr Bumble, " the law is an ass, an idiot." Well, that’s just what the law is.

For as long as one can remember … or as the lawyers say "since man’s mind runneth not to the contrary", the legal system has made its own rules and totally administered itself. It has established and maintained dress codes that are ludicrous; it refuses cameras or microphones; it has set procedures for the simplest of cases that are just as complex and incomprehensible as if the case involved billions of dollars in a complex tax case; it imposes almost no discipline upon those who play the system … lawyers can have examinations for discovery in the simplest of cases that run into days and even weeks without penalty … they can throw reams of paper at each other all dutifully recorded on the computer to go on the bill; there can be adjournments after adjournments often because, just as the airlines do, the lawyers double or triple book. The courts pay lip service to the convenience of the public but they were all lawyers themselves once and it is the convenience of the lawyers that counts most. As one wag put it … the courts are open to all people just as the dining-room of the Savoy Hotel is.

I have not spoken with former Chief Justice Bryan Williams about this but knowing him as I do, I suspect that this situation had a lot to do with him getting sideways with his brother judges who forced him out. He wanted much wider use of mediation. As there damned well should be.

There are better ways. Take for example a case for maintenance. The Supreme Court rules are designed to speed the process up whereas in fact they gloriously prolong it. You’re each supposed to both file an affidavit, which the judge reviews then hands down a decision. In fact, the affidavit is just the hors d’oeuvre. Then come days of cross examination of each party on those affidavits. Then come floods of other affidavits all subject to cross examination and answering affidavits. Accountants file masses of material followed by one adjournment after another.

What should be done? Repeal the time saving rules before young suitors die of old age waiting for their cases to be heard. Why not follow the Small Claims procedure and have both sides appear before the beak in a mediation session, then, if there is no agreement have the judge say what outside evidence he wants, then finish it off a couple of weeks later. It’s not just family law … all disputes, be they maintenance, personal injuries, contract disputes, you name it. Get them to hell out of the system.

The trials in our superior courts today aren’t, for the most part, searches for truth and justice – they’re tests of the ability of each side to absorb ruinous lawyers’ fees.

It’s time the entire system – especially the involvement of hugely expensive lawyers – is examined and thoroughly reformed.