Living in a World of Words

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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

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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.

No Damages For A Commitment Phob’s Worst Nightmare

It’s a tale as old as time. Man meets woman. Woman gets pregnant. Man feels trapped. Except this time, the man asks for money. “Money for what?” – you ask. Money to compensate him for the emotional trauma of the “unplanned pregnancy”.

In PP v DD, 2016 ONSC 258, Justice Perell described their courtship. They dated for about two months. The man (an ER doctor in his late thirties) felt that she was not right for him. So after about two months of dating, he breaks off the relationship. She then texts him a couple weeks later advising him that she is ten weeks pregnant. The man then sues her.

He states in his statement of claim that he was deceived. She told him that she was on the birth control and basically he did not sign up for this. He was waiting to meet the woman of his dreams and have babies with her, not this pretender. At paragraphs 25, Justice Perell excerpts the man’s claim.

  1. The representations by DD that: (i) she was taking birth control as prescribed and directed; (ii) she did not want to get pregnant; and, (iii) she did not want to have a baby were deliberate, willful, and conscious distortions of the truth. DD made those false statements with the knowledge that they are untrue. DD intended to deceive PP. DD intended that PP would rely and act upon the false statements. PP did so and, solely based upon the false statements, proceeded with sexual intercourse and intravaginal ejaculation. Consequently, DD became pregnantand has claimed that PP is the father of the child. DD brought about her pregnancy by deception. As a result, PP has suffered damages.
  2. PP consented to having sexual intercourse with DD. That consent, however, was expressly based on his understanding and belief that DD was taking the birth control pill as prescribed and directed and did not intend on getting pregnantor having a baby. PP would not have consented to sexual intercourse and intravaginal ejaculation had he known the true state of affairs. PP’s consent to sexual intercourse was procured by DD through her deception and dishonesty. Accordingly, that consent was vitiated.
  3. PP expressly enquired of DD as to whether she was “on the pill” because he had already made the clear and conscious choice not to father a child at that time. PP was just beginning his career as a physician; he was not at a stage of his life at which he thought he was “ready” to assume the responsibilities of being a father; he wanted to meet a woman, fall in love, get married, enjoy his life as husband with his wife and then, when he and his wife thought the time was “right,” to have a baby. The deceptions by DD deprived PP of the benefit of that choice.
  4. The actions of PP based on the deceit and fraudulent representations by DD resulted in damage to PP, the particulars of which shall be provided in the course of this proceeding in accordance with the Rules of Civil Procedure.
  5. DD committed an independently actionable wrong through misconduct that represents a marked departure from ordinary standards of decent behaviour. Her conduct was sufficiently malicious, high-handed and highly reprehensible such that it offends the court’s sense of decency. Accordingly, PP seeks and is entitled to an award of punitive damages to achieve the objectives of punishment, deterrence, and denunciation.

Justice Perell struck out the statement of claim. He framed his analysis in the tort of sexual battery and the tort of fraudulent misrepresentation, stating that fraudulent misrepresentation was not designed to compensate for this kind of emotional trauma. At paragraphs 39 and 45, he explains:

[39] The argument of DD’s challenge to PP’s Statement of Claim brought the clarity of what PP’s action is really about. In the guise of a fraudulent misrepresentation cause of action, PP seeks compensation for the non-pathological emotional harm of unplanned fatherhood. PP is not against being a father, but his passionate argument is that by DD’s fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

[45]           Fraudulent misrepresentation is typically classified as an economic or pecuniary loss tort, for which compensatory damages are designed to restore the person to the financial position he or she was in before the fraudulent misrepresentation. Apart from having to pay child support, which subject to proof of paternity, he is no longer seeking to avoid, PP does not have any financial losses and none are particularized in his Statement of Claim. PP is not married to DD. He is not obliged to marry her. He is not a spouse under the Family Law Act, R.S.O. 1990, c. F.3, because he never cohabited with DD and he never established a relationship of any permanence with her. PP will not incur any financial losses from DD’s pregnancy and the birth of a healthy child, and he will experience no disruption of his career as a doctor. PP was not infected by any venereal disease and he does not plead that his emotional harm was pathological in nature.

Justice Perell’s analysis of the tort of sexual battery and the tort of fraudulent misrepresentation is excellent, as always. And he rightfully strikes out the statement of claim, stopping the ridiculous litigation in its tracks.

At the heart of his decision is the protection of a child from his/her idiotic parents. “The facts are salacious and ignobly pleaded, and I made the confidentiality order because I was concerned that the child that is at the heart of the history might someday read the decision, self-identify, and be traumatized.”

At the heart of this decision is the protection of future children from future bad parents. If every father could sue the mother of a child that got pregnant without his knowledge, then I suspect that there would be a lot of lawsuits of this nature. And sometimes there’s no place for the “courts in the bedrooms of the nation”.

Dressing for the Law

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“Vain trifles as they seem, clothes have, they say, more important offices than to merely keep us warm. They change our view of the world and the world’s view of us.”- Virginia Woolf

Clothing defines us. It marks us. It deceives us. In “January: A Woman Judge’s Season of Disillusion” by the Honourable Marie Corbett, she discusses the process of robing, and it’s transformative power.

“…—attire that served to advertise the social, professional, or intellectual standing of the wearer like “labels in a grocer’s shop,” with every button, rosette, and stripe having significance. Woolf describes a judge chiding a woman litigant for imprudent dress while he himself is wearing a scarlet robe, an ermine cape, and a vast wig of artificial curls. He lectured the woman without any consciousness of sharing her “weakness.”
I finished garbing myself and glanced in the mirror. Woolf’s concept notwithstanding, there I was—in men’s clothes, ready to administer men’s laws.”

While reading January, the power of the judge’s uniform becomes increasingly apparent. The judicial robe strips judges of their individuality and marks them with power. All while separating them from their former lawyer peers, making judging an incredibly isolating process.

In January, you can sense the isolation that Corbett faces throughout her rigid, routine days. She describes dressing and undressing repeatedly throughout the day. Dressing to go to work. Dressing to appear in court. Dressing to go to lunch. Dressing to go back to court. Dressing to go home.  A day of dressing and undressing. A day of small transformations. And after years of this routine, Corbett no longer thought of her role as searching for the truth. Instead, she describes herself as “the impartial referee, the decider of facts on the evidence that the lawyers brought before me. No, not a search for truth.”

Judges only know what lawyers present. They are tied to the strength of their skills. They cannot research the facts on their own. She describes  moments of bad lawyering before her, futile cross-examinations, poor opening arguments, tedious presentations of evidence.

“University Avenue gave me time to think about the hospital, where the ill and the injured sought health and recovery, and the courthouse, where the wronged and the accused sought justice and truth. Two hives of dis-ease: one physical, the other social. I was moving from one pathological environment to the other: from doctors to lawyers—from white to black—from cancer to crime.”

January is an incredible book. It provides an opening into the minutia of judging, humanizing the people behind the judicial garb.

 

 

 

 

 

Presence & Memory

Litigation looks backwards. It involves piecing together moments of the past. All in the hopes of constructing an accurate and persuasive narrative. Usually at the heart of this process is memory. And parties often replay the moment at the centre of the lawsuit repeatedly.

In Presence by Amy Cuddy, she writes that the more anxious and self-focused someone is during an interaction, the more likely someone is to replay the interaction after the fact. But the moment that someone is ruminating over isn’t even real – “it’s a seriously flawed memory of an interaction”, especially if someone was anxious during it. Memories become warped and full of holes. This leads people to take mangled memories and mangle it even further. We should be concerned about this phenomenon.  Often times the moment in dispute in the lawsuit is one experienced under stress and anxiety.

The best way to counteract the flawed memory is to  look for independent evidence of the event. Memory is second best to independent proof. Memory is simply an imperfect reconstruction of events.

Law Firms: Look to Your Left, Look to Your Right

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The old saying to law students: “look to your left, look to your right, because one of you won’t be here by the end of the year” is untrue. So law students need not fret. But law firms, they should.

Today most law firms look to the firm down the street for their largest competition. But in a few years time, the real threat won’t be that law firm down the street. It will be some technology company that will encroach on an aspect of their work.

Currently, this looming threat is sitting in his parents’ basement or sitting in his university dorm room, working on the next big thing. The best example of this next top threat is DoNotPay. DoNotPay is a free artificial intelligence lawyer, designed by 19-year-old second year Standford University student Joshua Browder. DoNotPay helps users contest parking tickets in an easy to use chat-like interface. So far, the program has successfully contested 160,000 parking tickets across London and New York for free.

“The program first works out whether an appeal is possible through a series of simple questions, such as were there clearly visible parking signs, and then guides users through the appeals process. The results speak for themselves. In the 21 months since the free service was launched in London and now New York, Browder says DoNotPay has taken on 250,000 cases and won 160,000, giving it a success rate of 64% appealing over $4m of parking tickets.” (The Guardian)

The process for appealing fines is relatively formulaic and therefore perfectly suitable for applying artificial intelligence. Meaning that customers can receive accurate advice without paying high fees to lawyers.

Challenging parking tickets is just the beginning. And I can’t wait to see what’s in store.

Rooftop Pools & Liability

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Disclaimer: This blog post does not constitute legal advice and does not create a solicitor-client relationship. If you need legal advice, please contact a lawyer directly.

I am lucky. My building has a rooftop pool, with some of the best views of the city. But, prior to picking up my VIP pass to the pool, I had to sign an agreement. In fact, we all had to line up and sign this agreement. Barely any one read it. And no one was directed to pay any attention to the  exclusion of liability clause. But, as a lawyer, I made sure to read the agreement.

It pretty much has one of the worst exclusion of liability clauses I have ever read. First the clause is buried in the contract. Second, the clause is not bolded or emphasized in any way. Third, it is poorly written. As a result of the wording of the clause and its placement in the agreement, it would be easy for a judge to interpret the clause in favour of the injured party. This is problematic, as I foresee many injuries in the future.

The rooftop pool has a restaurant. There is tons of alcohol. And the restaurant promotes bottle service all day long right beside the pool. On top of it, everyone is 35 and younger.  The combination of it all: water, alcohol, youth, stupidity, sun stroke, is a recipe for slip and falls.

The clause reads as follows:

Indemnity and Release: The Member agrees to indemnify and save harmless [Rooftop Pool] and/or employee, officer, director, person, affiliate, partner, subsidiary thereof in respect of all claims for bodily injury or death, property damage, or other loss or damage arising from the Event or any act or omission of the Client or any agent, employee, invitee, or guest of the Client, and in respect of all costs, expenses, and liabilities incurred by [Rooftop Pool] in connection with or arising out of such claims, included the expenses of any actions or proceeding pertaining thereto, and in respect of any of its covenants and obligations under this Agreement. Please be informed that there is no safety fence/gate surrounding the pools, therefore you should never leave a child or teenager unattended…

The clause basically says that the Member agrees to indemnify the Rooftop Pool in respect of all claims arising from the act of a Client, employee, invitee, or guest of the Client. The agreement does not define who the client is. Is the Client the Member? If so, why does the clause switch from Member to Client?

In sum, I think it is a sloppy agreement. Written quickly. Without any thought to the reader. And, I think it would be easy for a judge to give the agreement little weight, especially if the plaintiff was badly hurt.

Law Imitates Technology: Technology Imitates Law

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There’s been much talk about technology imitating the work of lawyers, making some lawyers redundant. But we often neglect discussing how technology will shape the content of our laws.

Laws often reflect the times that they are made in. For example, I recently read a case where it was said in 1958 (quoting a decision from 1900) that “It has long been the law that if a wife is separated from her husband without his consent, and while separate is guilty of adultery, the adulterer is liable to the husband… [for the] injury to the husband by the defilement of his wife, the invasion of his exclusive right to marital intercourse, and the consequences resulting therefrom.”

But just as it would be absurd to apply this law today, it would be absurd to ignore the advances in technology. Technology has radically changed human behaviour and with it the substance of our laws. We are just starting to see the beginning of these changes.

For example, under the Arthur Wishart Act (legislation that protects franchisees), Ontario is considering allowing the use of email. Currently, franchisors can only give key documents to potential franchisees through registered mail or in person. The government is considering enabling franchisors to provide those documents through email.

I predict that changes like these are just the beginning and will go well beyond approving the use of email. We will see legislation on drones, legislation on 3D printing, legislation on artificial intelligence, and so on. We will see the content of our civil procedure change. Rules on serving documents will change. And even more excitedly, the processes for determining routine motions, like motions for answers to undertakings, third party productions, extending time for service will become redundant as technology will shift the role of the traditional master or judge.

 

 

 

Paper Filing: For Shame!

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In Ontario, our courts love paper. Maybe the judges and the staff loved the 1990s. I certainly did. But some things are better left in that decade, like the annoying toy Furby and paper filing.

This past week, I had to file two motion records with the court. Unfortunately, I was cutting it close to the deadline. Both motion records had to be filed the day they were due. In other jurisdictions, at a click of mouse, I could file the material from my office. But instead, in Ontario litigants have to wait in line to file the material with the court. And what happens if you’ve waited there all day, just to be told at 4:00pm that something is deficient and the court won’t accept it? You are out of luck.

This is unacceptable!

In 2016, entire industries are being disrupted by the Internet. Taxi cabs, the food industry, the music industry, just to name a few. So why does our court think that they are invincible? Why do they insist on paper filing? Are they just trying to keep legions of people employed, whose jobs depend on moving paper around the court system?

In Israel, the courts have implemented the Next Generation Court System. It has five basic features: an electronic file, the judge’s workspace, task assignment, calendar, and e-filing. Under this system, the public has access to publicly available court documents, while the litigants and judges have access to the entire court file through smart cards and passwords.

The judge’s workspace displays all outstanding matters that require attention and includes court documents like pleadings, affidavits, and exhibits. The inclusion of court documents allows judges to search for a key term while writing or hearing testimony. The task assignment feature assigns each step in a proceeding to the appropriate person. The calendar feature allows judges to schedule matters without cumbersome hearings, like scheduling court. The e-filing of complaints and motions reduces the cost of storing and transmitting documents and enables people to access court documents from anywhere. Further access from anywhere helps judges too. The ability to view all materials digitally during trial or at home shortens proceedings and the time needed to write decisions.

Other jurisdictions have entered the new millennium. And so should we. Our government should be ashamed of the lack of resources invested in our judicial system.

Lessons from a Great Lawyer

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Over the past 6 months, I have had the immense honour of being in the course “Critical Thinking for Cross-examination”.

The following are my favourite lessons from the course:

Lawsuits are 90% about the facts and 10% about the law.

To determine the key facts, you have to analyze the case. Think laterally and not linearly. For example, if someone said that they went to the gas station, try to think about every aspect of it. What were they wearing? What was in their pockets? Did they pay with cash or credit? What was in their car? What does the inside of the car look like? How far was the driver? Where were they going? Where are they coming from? How often do they take the route? Were they hungry? What did they eat that day? etc. Try to recreate every millimetre of that moment.

Do not raise red herrings that detract from the focus. Find the core of your case and refer to peripheral matters only when it supports your narrative.

Make every witness your witness. Turn opposing party’s witness into a witness favourable to your narrative. Ask yourself how can I make the other side’s evidence work in my favour and paint my theory of the case.

Prove your narrative. Find objective evidence.

When confronted with analyzing a scenario, ask yourself “is this how normal people act?”

Be careful not to have tunnel vision.

Repeat key phrases.

Every case can be fun.