The Written Word
for May 13, 2001

Judges are complaining a lot lately. In fact they’ve become a bunch of whiners. A murmur of dissent from a politician or the media and one of their ilk leaps onto the front page of the newspaper chanting mantras about the sanctity of the judge’s perogatives to judge without fear or favour. When he is through, the lawyers chime in with their vigorous defence. Indeed what else would you expect from the lawyers who need the pleasure of the judges on a day to day basis.

"But the poor dears can’t defend themselves", seems to be the rationale.

Really? They seem to be defending themselves just fine. What they don’t offer is decent explanations for their behaviour. Nor for the entire damned system they administer.

Now it doesn’t do to inject too much of a personal experience in matter of this sort but this is what happened to me. A judge decided that I fired an ex-wife who didn’t work for me, that I had an expensive house mortgage free whereas it was a modest home mortgaged to the gunwales with an enormous tax liability attached to boot, that I owned two sailboats where I owned none and was a wealthy man where in fact I had a net worth of less than $200,000. He had, based on his perception of my public position, decided that I was rich and he wasn’t going to let any facts – such as were contained in the voluminous evidence – deter him in his prejudices, To top it all off he joked about my plight in a public restaurant, within earshot of other patrons, and refused to apologize to me.

I grant you that this has left me a tad bitter toward the bench but perhaps I might be excused it I told you this cost me about $20,000 in legal fees which would have been doubled had I chosen to appeal.

What it has done, however, is have me question that which I was brainwashed into believing as a law student, then as a practicing lawyer for 15 years. The judge is beyond reproach, I was led to believe, unless you want to appeal his judgment. If he has misbehaved, as opposed to just making a lousy judgment, why all you need do is convince the Judicial Council of this who will have the right to take the matter to the Parliament of Canada and have him removed. Right. The fact that this has never happened should not, of course, deter you.

What lawyers, be they practitioners or judges, refuse to acknowledge is that the whole bloody business is so expensive that even the well-to-do cannot challenge even egregiously erroneous findings. The law is now for the large corporations or the very rich.

How well I remember studying the law of damages. It is, the law in its majesty says, the duty of the injured party to mitigate his damages. Shorn of the legalese that means that if your ship is sunk or your truck destroyed by the fault of another, so you can’t deliver your cargo you must forthwith get another boat or truck and fulfill your contract. You can’t complain that you can’t afford to buy another boat or truck because, as the lawyers so succinctly put it, "impecuniosity is no excuse." So neat and tidy, that. It’s not up to the judges or lawyers to recognize the real world. If someone else hurts you, and perhaps even because of that act you can’t "mitigate" your loss, too bad for you.

You see this is what the law will not recognize – it has all become so hopelessly expensive for the ordinary person that ordinary people cannot seek justice. Courts run up the expense without any regard whatever for the costs. In my case the hearing was started and stopped three times – the adjournments were never to suit my convenience – I wanted the matter concluded. No siree, it was the judges and lawyers whose convenience was to be met at enormous cost to my pocketbook.

The notion that, if dissatisfied, you can "tax" your lawyers bill is an illusion. To do this you must hire another lawyer who, of course, must at $300 per hour, first review your case. Then you must pay him, probably a minimum of $1000, usually much more, to appear before a Registrar, usually a brother lawyer, to fight the case. This is one great big brotherhood and sisterhood we’re dealing with here folks.

There is an answer to this of course and it’s an expansion of the Small Claims procedure. If the matter in issue is less than $10,000 you can go before a Small Claims court without a lot of fuss and get a judgment. There is a mandatory settlement conference at which most of the matters are settled. Not only is there no need for a lawyer, it is contraindicated because there are no court costs involved. Moreover, the judges, being naturally more down to earth and closer to real people than their red robed brethren who dine at the best of clubs with their old lawyer pals, tend to dislike lawyers cluttering up their proceedings.

Why shouldn’t that limit be increased to $100,000? And why shouldn’t all marital matters be handled in Family Court without lawyers, leaving it to the judge to appoint a lawyer to help if the case gets too heavy? Why not, as former Chief Justice Bryan Williams has suggested, expand the role of mediation and arbitration? In short, why not do everything humanly possible to get lawyers the hell out of a case?

Other countries, notably Japan and many European Countries, get along with a small percentage of the lawyers we’re stuck with.

But, you might ask, weren’t you a lawyer yourself once and I bet you charged what the traffic would bear.

Guilty on both counts. It takes one to know one. It takes a lawyer who once charged 20% (it’s now up to 40%) of damages for injuries for doing what a client himself could have easily, in most cases, done for himself had the procedures not been so damned complicated, to know the system well enough to criticize it.

They say that "justice delayed is justice denied". What the judicial system refuses to recognize is that delaying justice is what pads the wallets of those in it. Every adjournment is money in the bank to the lawyers adjourning it. Moreover, if I might digress, if you want to see where the fat is look at your legal bill where you will find that every phone call made is automatically billed out at 1/10^th of an hour – for a $300 per hour lawyer that’s thirty bucks a pop. And how often does a phone call last 6 minutes? Give me a break!

How did I get to go on about this?

Because the judges who complain about being complained about, are, unwittingly perhaps, being stern gatekeepers at what should be a storehouse of public knowledge. We don’t understand the system because those in it don’t want us to.

It’s not an active conspiracy – it’s an age old one that those in it don’t ever think about. To them it’s as natural as one medical doctor not ever testifying against another. Its bred in them from the day they enter law school that they are in a sacred brotherhood with its own incantations and time sanctified rituals whose high priests must not only always be protected but have their own duty to protect their protectors.

It’s a bloody scandal whose time for denouement is long past due.