Trials Then & Now


Thomas Hobbes famously proclaimed in Leviathan that Where there is no common power, there is no law, where no law, no injustice…No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

Just as life pre-law was nasty, brutish, and short. So were trials pre-18th century. Trials in the Tudor and Stuart England were nasty, brutish, and short. According to historian J.S. Cockburn, almost no trials lasted longer than 20 minutes. Up to 25 trials were heard in one day by a single judge and jury. In that quick time, the judge and jury would decide the fate of the accused, often representing themselves. Who were then forced to endure the punishment, without barely any chance of appeal.

By the early 19th century, the court system shifted towards the adversarial system we have today. Rules of evidence became more entrenched, rights more respected, and party autonomy was birthed. Parties were expected to provide the evidence to the neutral decision maker, who passively heard the evidence.

It is the context of our adversarial system that former Supreme Court Justice Antonin Scalia and lawyer Bryan Garner, advise lawyers on how best to make their case. They write:

All of us are more apt to be persuaded by someone we admire than by someone we detest… Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information… by mischaracterizing precedent to suite your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weights against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience.

The Case of the Stolen Jewellery


This week Kim Kardashian made headlines. It went far beyond her normal headlines. She was robbed. In the middle of the night. In a foreign city. In a secluded hotel. In a shocking manner. Most likely by a gang of organized criminals. The execution: perfect. The legal remedy: predictable.

So who might she sue?

First, she can sue the hotel for failing to have adequate security measures and by creating a situation of danger. Then she can sue the hotel’s employees for failing to take proper care of her and by allowing danger to unfold.

Second, she can sue her own security team for failing to properly watch her or perhaps for breach of contract (depending on the terms). Rumour has it, her security team left her completely unattended as they guarded her sisters in a nightclub.

Third, she can sue her own insurer if they refuse to reimburse her for the stolen jewellery (assuming she has insurance).

Fourth, assuming she has inadequate insurance, she can sue her advisers for failing to reasonably advise her of her insurance needs.

But what about the defendants?

The defendants might argue that she was the author of her own misfortune. That she was the careless one. That she invited this danger. She endlessly paraded around her jewels. She bragged to the world about her whereabouts. She took picture after picture of herself wearing expensive diamonds. She invited cameras to capture her in all of her wealth. And she pursued constant attention from television, to books, to pictures, to apps, to selfies, to Instagram, to Snapchat, to Twitter, and beyond. Thereby allowing the perpetrators to plan the perfect scheme.

Injury aside, I look forward to the reality tv show “Kardashian vs the Hotel: the saga of the stolen jewellery”. They say it will be her best work to date.


The Sleep Revolution


In the Sleep Revolution Arianna Huffington encourages people to sleep their way to the top. Literally sleep their way to the top.

In her new book, she explains that sleep deprivation has taken a toll on our mental abilities and has reduced our capacity to perform both at work and socially. She cites a study that revealed that the performance of someone who gets 6 hours of sleep per night for two weeks straight is equal to the performance of someone that has gone twenty-four hours without sleep.

So then why are we all so tired and sleep deprived?

Huffington points to the Industrial Revolution as the origin of pervasive sleep deprivation. “Artificial light allowed the night to be colonized, [and] mechanization allowed for it to be monetized, and capitalism had no use for sleep.” As was the case with factory workers, sleep became devalued and scorned. After all another hour sleeping was another hour not working. And another hour not working was another hour not making money. And another hour not making money is an hour wasted.

In order to indoctrinate people with this capitalistic view towards sleep, going without sleep was framed as a sign of masculinity and strength. And to this day, this mentality towards sleep remains. In her new book, she encourages as to shuffle off this mentality, take pause, and perchance to dream.



Moving Forward: From Ink Quills to Electronic Documents


This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”





Overwhelmed by Rhetoric


“Four legs good, two legs better! All Animals Are Equal. But Some Animals Are More Equal Than Others.”
― George OrwellAnimal Farm

As lawyers it is easy to fall in love with our words. We live and die by the pen. But when it comes to building a great case, I’ve been told that it is best to take out all of the superfluous rhetoric, all of the editorial comment (opinion), and instead focus on the facts.

When focusing on the facts ask yourself: “is there another way to look at the evidence?”And from there develop key phrases.

A great example comes from a lawsuit involving a swimming pool. Many years ago a young boy was in a city pool that suddenly went from shallow water to deep water. After crossing from the shallow end to the deep end, he drowned to death. The lawyer defending the city called the divide in the pool “the safety ledge”. This phrase was so powerful that despite the negligent design, the city was found not liable. And the ledge was considered a safety feature (a death trap by today’s standards).

When used properly, in conjunction with the facts, word choice can define a case. No one forgets the beautiful saying “If it doesn’t fit, you must acquit.”

Canada’s Most Important Challenge to Healthcare


“There was no difference between men, in intelligence or race, so profound as the difference between the sick and the well.” – The Great Gatsby 

What is the best way to run our health care system? Is it privatized? Hybrid? Or, Public?

Right now, in British Columbia Dr. Brian Day is challenging the very way we fund essential health care services. He argues that the province’s ban on the purchase of private insurance for essential medical procedures is unconstitutional. As the ban requires many patients to endure gruelling wait times, thereby exacerbating their medical conditions. The trial is predicted to go for 6 months.

Eventually, the case will be appealed to the Court of Appeal and then to the Supreme Court of Canada (its true destination). The Supreme Court of Canada’s decision will have national ramifications, and may change the way we fund health care across the country.

“Dr. Day argues that Canada’s inefficient system is the product of a wasteful bureaucracy, a lack of competition and a misguided attachment to universal coverage.”

Although it could be said that a lack of competition has fostered a lower level of customer service from doctors, this lack of competition has allowed the government to keep health care costs down. Doctors are prevented from charging too much, and the costs of administration are controlled.

Regardless of how this case resolves, I predict that a hybrid system for essential medical services will continue to creep in. Technology is eroding the boundaries of provincial control, the baby boomer generation is aging, and the economy feels as unstable as ever. All of these conditions are creating a time of uncertainty and are paving the way for change.

I personally have huge concerns about the erosion of the public health care system. The ramifications of which will be felt by the most marginalized.

Poor. Rich. White. Black. Jewish. Christian. Criminal. Saint. Heterosexual. Homosexual. No matter how we identify or are identified, we are all entitled to health care. And not just any health care, but good health care.

Hell Hath No Fury Like a Woman Scorned


In Toronto Life Magazine, there’s an article about Eleanor McCain, the heir to the McCain fortune. She is currently divorcing Jeff Melanson, former president and CEO of the Toronto Symphony Orchestra. In their divorce proceedings, she is claiming that he tricked her into marriage and is requesting an annulment on that basis.

An annulment would allow her to avoid paying him anything. According to the marital contract, he is entitled to $5 million (a paltry sum for a family worth $2 billion). Yet she is fighting him for every dime, hiring private investigators to dig up his past, paying the best lawyers to fight for her, and smearing his name across the country.

It is unlikely that she will convince a judge to grant her an annulment. It would be hard to show that she married him by reason of fraud or duress. She is a wealthy woman, with every advantage at her disposal. If she wanted to investigate him beforehand, she could have. No one held a gun to her head and forced her to marry him. To somehow say that she was duped into this marriage is a stretch.  What it really sounds like is a severe case of buyer’s remorse. Someone quick – call the doctor and cure her of that.

To read more, click here: Public Enemies – McCain and Melanson


What I Wish Someone Told me in Law School

I wish someone told me that the practice of law can be all consuming, that incentives rule decisions, that the billable hour can become someone’s raison d’etre, that the practice of law can be isolating, and that the practice of law is mostly 90% grunt work and 10% “magic”.

But mostly I’m glad no one did. I may not have entered practice. And I may not have learned the best lesson of all: that the pursuit of being an excellent lawyer (a critical thinker) is the best pursuit of all.

Living in a World of Words


Lawyers live in a world of words. Precision is key. And so, it is the very bending of those words that turns an honest story into a distorted story.

An example of a distorted story is the Amber Heard – Johnny Depp saga. It was a tale of “he said – she said”. All played out in the court of public opinion. At first, Johnny Depp’s team claimed that it was all a ploy for money. Then, Amber Heard started releasing videos and photographs depicting violence. Eventually their lawyers reached a deal, and the divorce was settled.

But it was the behaviour preceeding the deal that was the most unsettling. As stated in the blog LaineyGossip:

“Johnny Depp’s legal team accused Amber of lying about all of this for financial gain. In the end, those gains aren’t staying in her bank account. But Johnny Depp had people willing to testify on his behalf, his bodyguards who were there on the last night they were together, ready to claim in court that none of that sh-t went down. What does that say …[about the] people who surround…Johnny Depp?”

Lawyers must challenge their clients. It is the job of lawyers to be detectives. To dig beneath the statements of their clients and to reveal the truth, even as unsightly as it may be. It is a disservice to the courts for lawyers to take their clients’ words as gospel. Even worst, it is a disservice to the courts for lawyers to then peddle those lies in the courtroom.

Slinging untrue accusations, weaving tales glued together by lies, or simply leaving a misguided impression with a judge is wrong. In fact it is the very lifeblood of sneaky behaviour. And it deserves being called out, named, and shamed.

Law Gurus and Questioning State Authority


There is a new breed of litigants in town. They go by different names: freemen-on-the-land, sovereign men, sovereign citizen, etc. But at their core, they are the same. They refuse to recognize the authority of the courts or the authority of the government.

These vexatious litigants are guided by gurus. Gurus that claim that by unlocking secret principles, “hidden from the public, but binding on the state, courts and individuals”, people can avoid unwanted obligations, like taxes or child support or criminal sanctions.

These gurus peddle secret principles. And of course  these “secret principles” can be anyones, for a small payment to the guru. Kind of like paying a psychic to lift a curse. A curse that no one else can see but the psychic.

In Meads v. Meads, 2012 ABQB 571, Justice Rooke states that the gurus disseminate their ideas in seminars, books, websites, and instructional DVDs and other recordings. “Latin maxims and powerful sounding language are often used. Documents are often ornamented with many strange marking and seals. Litigants engage in peculiar, ritual‑like in court conduct. All these features appear necessary for gurus to market [their] schemes to their often desperate, ill‑informed, mentally disturbed, or legally abusive customers… [The] scheme is not intended to impress or convince the Courts, but rather to impress the guru’s customer.”

However, unlike a psychic’s power these secret guru principles are eventually tested in court. But, these principles are quickly shot down by judges.  Once a judge “strips away the layers of peculiar language, irrelevant references, and deciphers the often bizarre documentation which accompanies [the] scheme”, it becomes clear that nothing with substance grounds these ideas.

Justice Rooke then lists some questions that anyone thinking of hiring a guru should ask:

 Why do these gurus seem to have little, if any, wealth, when they say they hold the proverbial keys to untold riches?

Why do those gurus not go to court themselves, if they are so certain of their knowledge? If they say they have been to court, ask them for the proceeding file number, and see if their account is accurate. Those are public records.

Can that guru identify even one reported court decision where their techniques proved successful? If not, why then are all successes a tale of an unnamed person, who knew someone who saw that kind of event occur?

How are their ideas different and distinct from those surveyed and rejected in these Reasons?

How are these advisors different from the [] gurus who have been unsuccessful and found themselves in jail?…

Will your advisors promise to indemnify you, when you apply the techniques they claim are foolproof? If not, why?

If they cannot explain these points, then why should you pay them for their legal nonsense?

I would add: if something seems too good to be true, then it probably is. “Only two things are certain in life: death and taxes.” And no guru can change that.

But, I must say I find gurus’ questioning of state authority very interesting. We should always be examining the basic premises of our laws, including the Hobbesian/Locke/Rousseau conception of state authority. But such questioning of where state authority comes from, and whether it comes from some fictitious social contract or from some other source, is better left to the philosophers.