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Trivial pursuits: Lawsuits, that is | Marcel Strigberger

Friday, September 24, 2021 @ 2:29 PM | By Marcel Strigberger

Marcel Strigberger %>
Marcel Strigberger
Do we lawyers unnecessarily complicate matters? Are we windbags? Do we waste too much time on trivialities? I am thinking about a comment by the notable 19th century British judge, Lord Bacon V-C, who said after a hearing:

“This case bristles with simplicity. The facts are admitted; the law is plain; and yet it has taken seven days to try — one day longer than God Almighty required to make the world."

Actually, I could not readily locate the name of the case. I spent about 10 minutes trying to find it but no luck. (OK, maybe 20 minutes.)

Is this problem always the fault of the lawyers?

Our Rules of Professional Conduct note that, “advocates must raise fearlessly every issue, advance every argument, and ask every question.” Some lawyers exaggerate this professional zeal. I prepared for a car accident trial once with the help of a newbie lawyer who took that “ask every question” part rather seriously.  In preparing the client, he asked him, “And sir, what was your licence plate number?”

I interrupted asking him why he thought this question was relevant. He looked at me incredulously and said, “Ho ho, it demonstrates to the jury the client’s credibility.”   

Actually we managed to settle the case. I always wondered whether we could have fared better at trial. Maybe a jury would have concluded, “The plaintiff remembered his plate number. He’s certainly credible. Let’s add a couple of zeroes.”

Maybe another reason for lawyers seemingly complicating matters is fear of malpractice, even in non-litigation situations. One colleague, Marvin, once represented a client who was purchasing a cottage in a very rural Northern Ontario area. The boondocks on steroids. The wilderness-loving client was gung-ho to obtain this lakefront property. 

Unfortunately for the client the complication here was Marvin’s thoroughness. His title search disclosed that the property was subject to a right of way registered in 1894 in favour of something like the no-longer-in-existence-for-over-a-century Great Canadian Northern Railway. The property had been transferred numerous times since then no problem, except for Marvin. He spent a fair bit of time ardently presenting his concerns to the client. 

Reluctantly she backed out of the deal. No doubt she took Marvin’s concerns seriously as presumably she did not want to be enjoying a suntan session when suddenly she hears a loud train whistle. Suddenly she gets approached by a train engineer in striped overalls who says, “Ahem Madam, we’re coming through. Please move that hammock.”

After the client related this story, I chatted with Marvin suggesting he may have been overdoing due diligence. His insightful response was, reminiscent of the fine Charles Dickens language of Oliver Twist’s Mr. Bumble, “Just being cautious. If anything happens, she will come after my ass, not yours.” I suppose he was right there. 

But in my experience, lawyers often have difficulties properly estimating time required to conduct a matter. I don’t know what happened in the Lord Bacon case. Likely from my experience, the trial coordinator probably reached out to the two lawyers for a reasonable time estimate.

TRIAL COORDINATOR: Counsel, how long do you expect this matter to take?

PLAINTIFF’ S LAWYER: I’d say we should be done in a day. Easy.

DEFENDANT’S LAWYER: The facts are not even in dispute. We should be over by the morning recess. I’ll be short.

PLAINTIFF’ S LAWYER: I agree with my learned friend. I’ll be even shorter.

Perhaps many lawyers are imperfect time managers, but we can also cast blame on some judges.  

I knew a stern judge once who could not hear a matter without interrupting it with wiseacre quotes. On a guilty plea, after hearing the prosecutor’s colourful summary of the offence, he would rattle off some Shakespeare like Macbeth’s, “Double, double toil and trouble, fire burn and cauldron bubble.”

It did not lengthen the proceedings much however it did make some other lawyers in the courtroom rethink their intentions and ask for an adjournment. Depending on the judge’s quote, to adjourn the case would, in Dickens’s words, have been “a far far better thing…”

Some judges cause delays in the system by, for want of another term, being nitpicking sticklers with the law. Actually there is not want of another term. There is a term; they’re being anal.

I witnessed a guilty plea sentencing once where the defence lawyer and the prosecutor in a minor offence agreed on a fine. The judge seemed distracted a bit (this was not that same quoting judge). He hit the poor gentlemen with 90 days in the slammer.

Both lawyers, trying to regain their composure, made brief comments to the judge to reconsider his decision. As well the man’s wife who  jumped up and pleaded that her husband was the breadwinner of the family of five children. The scene reminded me of Les Misérables, where Jean Valjean gets whacked for about 20 years consequent to stealing a loaf of bread. 

The expression on the judge’s face suggested that perhaps he had second thoughts. However his reply to the poor lady expecting justice, was “Madam.  I cannot change my ruling; I’m functus officio.”

To the judge, functus did trumpus justice.

The husband’s lawyer’s translation of the phrase did not console her much. I for one did not expect her to say, “Of course, now I get it. Functus officio, that’s the law. Oh well.”

Nobody ever said access to justice was perfect. Not Lord Bacon. And certainly not Mr. Bumble.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version by pre-release sale order. Visit Follow him @MarcelsHumour.

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