November 6, 2024
The following is an excerpt from Marcel Strigberger’s new book, First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe
A lawyer is a person who writes a 10,000-word document and calls it a “brief” – Franz Kafka
Do we lawyers unnecessarily complicate matters? Are we windbags? Do we waste too much time on trivialities? I am thinking about a notable nineteenth-century British judge, Lord Bacon, 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 this case. I spent about ten minutes trying to find it but no luck. (OK, maybe twenty 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 Harold, 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. But I wondered about Harold’s comment. Just what would a jury have concluded? “The plaintiff remembered his own 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. One colleague, Marvin, once represented a client 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 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. 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 Charles Dickens’ language of Oliver Twist’s Mr. Bumble, who said, “The law is an ass.” Actually, Marvin was saying, “Just being cautious. If anything happens, she will come after my ass, not yours.” I suppose he was right there.
Lawyers also use confusing and excessive terms including but not limited to “hereinafters,” “whereases,” and of course, “including but not limited tos.” It’s all too much.
But in my experience, lawyers often have difficulties properly estimating argument. 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.
Judge: “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 judge once who could not hear a matter without interrupting it with wiseacre quotes. He would jump in with 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 lawyers consider avoiding this judge. Possibly this maneuver would, in Dickens’s words, have been “a far, far better thing …”
Some judges cause delays in the system or even damage 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.
They can get carried away with unwarranted and unexplained jargon or rulings. I once witnessed a judge who seemed distracted a bit and erroneously give a man ninety days in jail despite the Crown Attorney (prosecutor) agreeing with defence counsel to a fine. The Crown immediately rose to make further submissions to honour the deal, pleading for a fine, but the judge smugly said, “I see. However, I cannot change my ruling. I’m functus officio.”
Both lawyers, trying to regain their composure, made brief comments to the judge to reconsider his decision. The man’s wife frantically 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 twenty years consequent to stealing a loaf of bread.
The gentleman’s lawyer, who almost had cardiac arrest, tried explaining to his shocked client that functus officio was a nice Latin phrase, meaning the judge’s mandate is over and he cannot reconsider, though he probably could have but thought he couldn’t. The lawyer’s subsequent translation for the wife 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.”
I doubt this incident, witnessed by a courtroom full of people, elevated respect for the law. To the judge, functus did trumpus justice. Nobody ever said access to justice was perfect. Not Lord Bacon. And certainly not Mr. Bumble.
Marcel Strigberger is a Toronto-based lawyer, humourist and author, who now devotes his time to being funny and writing after 40 years of balancing these endeavours with a civil litigation practice.
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