"The Law is a Ass"?

With apologies to the presiding appeal justice hopefully showing up at left, the old man’s title today, once again courtesy of Dickens, came to mind when I re-read portions of The Unnamed reviewed in my last issue.

In that story one “funny” episode during his compulsive walking spell involved his inability to conduct the defence of one of his wealthiest commercial clients on a charge of murdering his wife. One of his senior partners, with other associates, was three weeks into the trial when Tim, who had prepared for the trial for months, decided to surprise his colleagues by appearing in the courtroom ready to participate.

He was wearing a bicycle helmet specially designed to monitor his brain waves to detect changes before and during the walking attacks, head shaved for proper sensor contact. The judge noted Tim’s presence when court was called to order, informing him that he had indeed arrived and should remove his helmet if he intended to stay. Tim immediately stood and stated his intention to participate with the judge’s permission. Then in the midst of the statement he suddenly turned and walked out without turning back, saying, “On the other hand I think I’ll leave.” His walking attacks often started the same way, no matter what he was doing or where he was.

That episode reminded me of the awesome power judges have over the lives of barristers who appear before them. Experienced lawyers sometimes go to great lengths to avoid certain judges whose displeasure they may have incurred in previous appearances as they well should do for the sake of their clients.

Soon after admission to the bar I was briefly partnered with a more senior member of our local legal fraternity, which then held but ten or so members. He was widely known in the community for wicked and acid comments and sometimes sharply rude wit about his legal colleagues, the court and the community in general. Yet he always appeared as counsel properly robed when called for and bowed to the bench as required, all in the “best traditions of the Bar” as they say. One afternoon as he argued a case on a sunny, drowsy spring afternoon before one of the touchier and more irascible members of the county bench, he noticed the judge looking dreamily at the sunshine through the windows drifting off. My friend lowered his voice and gently dropped a case book on the table. That startled the judge to attention, demanding to know what had been said. Our witty member muttered to himself, “I don’t think you heard a word I’ve said for ten minutes, you old fart.” Well, the jurist’s hearing apparently had sharpened for he immediately pounded his gavel and ordered opposing counsel to attend his private chambers. My friend tried to put a different twist on his muttered comment but nevertheless apologized profusely for any lapses he may have been responsible for thereby avoiding further penalty.

I had a few experiences with disgruntled judges as well. Once I had a chamber application for which I had to appear in a larger centre, where I faced a whole courtroom full of lawyers making a variety of applications in cases they were handling. The fearsome jurist assigned to hear them all seemed in a foul mood from the beginning and as I knew I was likely the most junior of the lot I expected to be the last to be called. Even with senior counsel appearing early he was picky, surly and embarrassingly demanding for every particular, even asking one chap to point out in his own mouth where the lawyer’s infant client’s dental problem was located. After the usual lengthy lunch adjournment, I sat waiting to be called for most of the afternoon. When I came to the front I hesitantly stated my credentials, then made a point of expressing my thanks to His Lordship for his patience through a long and difficult day, presented my application as filed in the material he was given. Whether he took pity on my obvious inexperience or whether he was too worn out to be difficult any longer I don’t know. Still, he appeared to accept my thanks as if it was intended just that way, dealt with my matter quickly, and everyone went home happy.

Some years later I had a rare success in a personal injury case, but the insurance company lawyer filed an appeal, to which I was forced to respond. It was heard in Victoria before a panel of three appeal judges. Only the judges, the clerks, and the two lawyers were in the courtroom. At one point during the appellant’s presentation standing at the podium on the counsel table he was scrabbling around his appeal book and other files for a particular reference, which I knew I had right at my finger tip. I sort of half rose from my chair and offered their Lordship’s the citation. Instead of thanks I heard a rap of the gavel and a stern reminder from the judge in charge that “Counsel is expected to stand when addressing the Bench!” Of course I rose immediately and offered sincere apologies to the court for my errors and omissions.

I must say that particular judge, whose name I do not recall, ever after reminded me of that 1925 cartoon above. My learned friend already had some 15 years of experience with one of the prominent Vancouver law firms by then and many years later became British Columbia’s Chief Justice as well. As I never appeared before him I have no idea whether he became as stuffy and pompous as the chap we appeared before those many years ago.

May all our learned jurists receive their just rewards!

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