THE UNSETTLING TRUTH ABOUT SETTLING PART II: MORE MISSIVES FROM CANADA: “BRING DARTS, DICE AND A OUIJA BOARD”

This is the third in our series looking at the articles by the retired Canadian judge, The Honourable Joseph Quinn.  This is the second part of an article where the (retired) judge considers the advantages, and disadvantages, of settling cases and the need for lawyers to get experience of trials so they can perfect their craft.  There is also consideration of the issues arising when you are dealing with a non-specialised judiciary. As every the edited highlights are designed to get to read the original which is available here. The Unsettling Truth About Settling – Part II (1)

“When you step into a courtroom or conference room, educate the judge and you will have a best friend forever. Should you not want to bother doing so, but still require a judicial opinion, bring darts, dice and a Ouija board.”

THE ADVOCATE AND THE JUDGE

“As a lawyer, I assumed that judges possessed more knowledge of the law than I did.[1] Why? It was because they sat in inscrutable silence throughout the case and appeared all-knowing. How wrong could I be? Very wrong, it turns out. When I became a judge and sat in silence it was because I was not comfortably familiar with the area of the law in issue. Why would I ask a question and expose my ignorance? On those occasions when I interrupted and sprayed counsel with questions, it was because I thought that I knew something. (The exceptions were criminal trials where I always sat mute. If a fire were to have broken out at the front of the courtroom I would have remained silent for fear that to do otherwise might upset the carefully crafted strategy of one of the parties.)”

[1]              Okay, okay, there were one or two notorious exceptions.

CASES THAT CAUSE PROBLEMS

“Once upon a time, in a Kingdom far away, I was a lawyer. I recall that 99% of my professional headaches were caused by fewer than 5% of my files. A friend of mine referred to those problem files as “movers.” He would stack them on a corner of his desk and, every week or so, move them to a different corner. Even today, when I am asked what it takes to be a trial lawyer, I reply, “A big desk with as many corners as possible.”

ADVOCACY SKILLS AND SETTLING CASES

The article discusses the issues that arise when cases regularly settle and this leads to lawyers with no, or very little, actual experience of hearings and trials.

“Advocacy skills are withering because trials (in particular, civil trials) are an endangered species headed for The Canadian Museum of History. Even worse, those skills are not being developed in the first instance. There is nothing to wither.

• Counsel must always be aware of the need to educate their judge. This is particularly important on a pre-trial conference. At trial, you might have several weeks during which you will be able to educate your judge on the legal principles relevant to your case. However, on a pre-trial neither you nor the judge has the luxury of time. A judge could have six or more civil pre-trials in one day; and you are restricted to what you can fold into a pre-trial brief.
• Educating your judge over the course of a multi-week trial is one thing, but having to do so within the confines of a pre-trial conference is almost impossible unless your case is blessed with one or two very narrow issues (and, then, only if those issues fall within an area of the law for which the pre-trial judge has some expertise).

WATCHING OTHERS

• Because advocacy can be learned, it makes sense that watching other counsel argue a motion or try a case will be beneficial. In fact, watching bad lawyers[1] is as enlightening as observing good I rarely see young lawyers linger in motions court after their matter has been heard and it is equally uncommon to spot such a lawyer serving as a spectator in a trial involving experienced counsel. These are missed opportunities to add to your courtroom toolbox. In 1972, I should at least have sat in on a few jury trials. I have no idea why that did not occur to me at the time.”

WHEN THERE IS A NON-SPECIALIST JUDICIARY: THE UROLOGIST IN THE WRONG PLACE

tabula rasa: a poor business model

You are well aware (but too polite to mention) that lawyers who never saw, say, a family file or a personal injury file in their law practices are appointed to the bench and preside over such matters. Imagine if this same business model were found in the health care system; we might have the following conversation between a hospital nurse and a doctor recently appointed as head of cardiology:

NURSE:          Congratulations on your appointment.

DOCTOR:      Thank you. Those years of bake sales and fundraising for the hospital paid off for me.

NURSE:          The patient in Room 312 is complaining of arrhythmia, palpitations, light-headedness and chest pain.  What is your diagnosis?

DOCTOR:      You’re asking me? Before I was appointed head of cardiology last Tuesday, I was a urologist. But, gosh, it sounds serious. My neighbour had the same symptoms. He was a nice man. I miss him.

NURSE:          Do you have any idea about a diagnosis?

DOCTOR:       It sounds like the heart.

NURSE:          That’s it? Can you be more precise?

DOCTOR:       I’ll have to telephone someone. Do you have the number for Dr. Michael DeBakey?[1]

NURSE:          What if something happens to the patient in the meantime?

DOCTOR:       Not to worry. There is a panel of three doctors to whom the patient may appeal, posthumously if necessary.

NURSE:          But aren’t two of those doctors also former urologists?

DOCTOR:       Good point. And the third used to be a dermatologist.