See you in court!

I perceived early in my career as a lawyer that court room appearances were not my preference.  As an articled clerk I had attended the Small Claims Court and the somewhat less inferior Ontario Court (General Division) regarding debt collection and Landlord/Tenant matters respectively. I learned some bold lessons in those courts.  The Small Claims Court experience taught me that it is wide of the mark to assume your Client is telling the truth.  When for example I asked my Client in the witness box a pivotal question pertaining to his claim against the Defendant, he surprisingly gave an answer which utterly contradicted what he had told me at my office.  He buckled in the heat of the moment.  The Judge raised an eyebrow and summarily dismissed the claim.

The Ontario Court (General Division) introduced me to the riffraff of society. The delinquent tenants were the object of my Client’s suit.  The case I thought began badly for me when the Judge commented upon the pleasing floral design of the tie of one of the scruffy bearded tenants.  The Judge overcame his preoccupation sufficiently to grant me an order for eviction.  Weeks afterwards when I was in a local pub which catered to people such as poorly paid articled law students I saw the former tenants there.  Realizing I couldn’t avoid them I decided to confront them.  I expressed my hope that they were not angry with my Landlord Client.  They assured me they were not, adding that they were angry with me!  This intelligence did little to improve the rest of the evening though I escaped without damage.

After being called to the Bar at Osgoode Hall I catapulted to the Federal Court and Supreme Court of Canada (Appeal Division) in a high profile oil and gas case, a distinction I garnered only because we acted as Agents for a British Columbia law firm and nobody else in my firm could fit into their gown or felt it worth their while to attend (especially I am sure when they could pay me so little and charge so much).  My attendance in this instance was decorative only.  I and the other twenty-four lawyers in the court room bowed to the ermine-clad Justices and agreed with the submissions of our learnèd friend Mr. Hyman Soloway who was leading the charge.

A year later I plummeted once again to the Small Claims Court to complete one of those “dog” files begun years earlier by one of my Principals.  The Defendant was trying to avoid paying a $600 debt.  Thus far he had been successful.  When however I instituted a “Show Cause” proceeding (pursuant to which the Defendant was summoned to appear before the Judge to explain his continued dereliction), the Defendant chose not to appear and the Judge therefore issued a Bench Warrant.  This meant the police were armed with authority to incarcerate the Defendant for Contempt of Court.  As the police were hauling the Defendant off to gaol he called me to ask me to call off the dogs which I told him I couldn’t do because the violation was not that he hadn’t paid my Client’s debt rather that he had not obeyed the Judge’s Order and accordingly I had no authority.  I thought this would have been sufficient to exact payment of the debt, but no.  My subsequent action was to garnish the wages of the Defendant.  To my utter surprise the Garnishee employer (Canadian Pacific Railway) never responded to the Garnishment Notice.  So I ended by getting an Order of the Court to force CPR to pay the debt (which they did). When this Order was mailed to the Head Office of CPR it unfolded that the reason CPR had not responded to the Garnishment Notice was that the Baliff had served it upon the CPR Manager who was the very Defendant I had been suing.  The Garnishment Notice went into the trash upon its receipt.  CPR of course became apprised of these details and subsequently fired the Defendant. By the time the $600 debt had been satisfied the additional court costs put the total in excess of $3,500.

What I thought was to be my swan song was a reappearance in Small Claims Court in my second year of practice to defend a Client charged with theft.  He switched the price tags on a token item in a department store.  The difference in price was about three dollars.  The Client attempted to assert the error of the in-store detective but armed with my previous lesson about the credibility of one’s own client I succeeded in reducing him to tears in my office and advised him to plead guilty which he did.  I had the satisfaction of persuading the Judge to grant my Client an absolute discharge (which meant no criminal record for my Client).  It was I thought a good note on which to end my career as litigation Counsel.

My retirement from the courts however suffered a further delay during my first year of practice on my own.  I inherited a filing cabinet of unpaid bills from a local merchant.  The one thing I recall having heard from the late Hyman Soloway was, “Sue first, talk later”.  That is precisely what I did.  My action brought immediate response from the numerous Defendants who in every case assured me I needn’t have acted without consultation (notwithstanding that each of them had failed to respond for years to previous letters pleading for payment).

Subsequently I advised Clients that I no longer accepted retainers for contentious matters.  This effectively excluded not only collection matters but also the equally common matrimonial matters.  I thought I had closed the door on court room appearances.

I was wrong.  Late one year just before closing for the Christmas holidays the looming figure of a well-known Ottawa Baliff appeared at my office door.  Recognizing him I quipped, “Who are we suing today?” to which he replied, “You!” This bad beginning to my Christmas holiday lasted ten years. Immediately upon receipt of the Statement of Claim I naturally notified my professional indemnity insurers who subsequently engaged their own Counsel on my behalf.  Over the next ten years the Plaintiff went through three lawyers, none of whom he paid and one of whom sued his former client and precipitated the sale of the Plaintiff’s assets to satisfy the unpaid legal fees. I went through endless Examinations for Discovery and rehashed the facts much to the repeated disappointment of succeeding Counsel for the Plaintiff. It became obvious that the Plaintiff was motivated by a hatred for a background participant in the saga and was seeking to compensate any financial loss suffered at the hand of that peson by collecting from my insurance.  In the end the Plaintiff was completely unsuccessful.  His claim was dismissed without a penny paid on my behalf and my escalated insurance premiums during the preceding ten years were reduced and repaid to me.

It is often observed by the Law Society and practitioners that it is impossible to escape a liability claim in one’s career.  Having proved the accuracy of that statistic and my commonality with the herd I would have been satisfied not to disturb the actuarial numbers.  There was however another realm of litigation which lawyers regularly undergo and that is a dispute regarding professional fees.

In no less than three instances a claim had been advanced against me for repayment of professional fees.  In each case the claim was only for repayment of money not for professional negligence. What however was singular about these claims is that notwithstanding that the Plaintiff in each was different (as of course one would expect) the Solicitor for the Plaintiff was the same.  After the second claim was instituted (the first simply evaporated after much back and forth communication) I thought perhaps it was merely a coincidence that it was being handled by the same lawyer (on the theory that there were not many litigation lawyers in the immediate area).  The second claim dragged on endlessly.  For one reason or another the Plaintiff was never able to make it to court on the date scheduled for appearance.  I finally became so fed up with needless court appearances and adjournments that I agreed to pay money to the Plaintiff just to get rid of her as it was costing me money and valuable time in any event.  When the third claim was instituted by the same lawyer I decided enough was enough.  Negotiations and settlement discussions were off the table.  We ended by going to court and the Judge decided not only that I was entitled to the full payment of my account but also damages in an amount which came perilously close to exceeding the disputed amount claimed by the Plaintiff.  I was so angry with the other lawyer and his client that upon issuing the Order from the court I immediately served it upon the other lawyer and advised that if it were not paid within ten days I would instruct the Sheriff to seize the Plaintiff’s house and sell it to satisfy the debt and costs.  Satisfaction ensued.  The other lawyer never bothered me again nor was I ever caught up in a similar dispute.