Do lawyers make simple things difficult?
Marcel Strigberger.
Do we lawyers always complicate matters a bit too much? Sometimes? Are we windbags? Do we waste too much time on trivialities?
One thing most lawyers can agree with is that the wheels of justice often move slowly. Why is this? Is it always the fault of the lawyers? I doubt it.
Our Law Society of Ontario’s Rules of Professional Conduct note that advocates must “raise fearlessly every issue, advance every argument and ask every question.” Some lawyers, however, take this professional zeal to new dimensions. I prepared for a car accident trial once with the help of a newly called lawyer who took that “ask every question” part rather seriously. In preparing the client, he asked him, “And sir, what was your license 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.”
I will say we managed to settle the case before trial. I always wondered whether we could have fared better had the matter been tried. Maybe a jury would have deliberated and concluded, “You know, the plaintiff remembered his car license plate number. He’s certainly credible. Let’s add a couple of zeroes.”
Maybe another reason for lawyers spending more time on a matter than might be necessary is fear of being accused of malpractice. You see this concern expressed both in litigation and nonlitigation situations. A colleague of mine, 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 eager to obtain the inexpensive lakefront property.
Unfortunately for the client, the complication here was Marvin’s thoroughness. He conducted a title search, which disclosed that the property was subject to a right-of-way registered in 1894 in favor of something like the Great Canadian Northern Railway, which had not existed for over a century. The property had been bought and sold numerous times since with no problem, except for Marvin. He spent a fair bit of time—zealously—presenting his concerns to the client.
Reluctantly, she ended up backing out of the deal. No doubt she took Marvin’s concerns seriously. Presumably, she did not want to be enjoying a suntan session when suddenly she hears a loud train whistle, looks around and 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 to me, I chatted with Marvin, suggesting he may have been overdoing due diligence. His insightful response was reminiscent of the fine Charles Dickens’ language used for 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.
Perhaps many of us are imperfect time managers or windbags, 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. In dealing with a guilty plea after hearing the prosecutor’s colorful summary of the offense, 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 by much, however, it did make some other lawyers in the courtroom rethink their intentions for the morning and ask for an adjournment. No, we do not have capital punishment in Canada. But depending on the judge’s quotes, to adjourn the case would, in Dickens’ 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 another term: They’re being anal.
I witnessed a guilty plea sentencing once in which the defense lawyer and the prosecutor in a misdemeanor case agreed on a joint submission on sentence, settling on a fine. The judge seemed distracted a bit (this was not that same judge, who would have been thinking about another quote). He hit the poor gentleman with 90 days in the slammer.
While both lawyers were trying to regain their composure, they each made brief comments to the judge to reconsider his decision. The man’s wife, who was beside herself, also jumped up and pleaded that her husband was the breadwinner of their family of five children. The scene was reminiscent of Les Misérables, where Jean Valjean gets whacked for about 20 years consequent to initially 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 the justice system was perfect. Certainly not Mr. Bumble.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com, and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
