Archive for May, 2013

Office Closed for Two Weeks

Friday, May 31st, 2013

It’s that time of year again, when I get the joy of having to go overseas to deal with family matters – except this time it’s for a couple of weeks rather than just one week like prior trips.  In Europe many businesses close down for the entire month of August, for example.  I can’t do that but I can close down for a couple of weeks.  So, from June 1 to June 16 I will be away and checking e-mails only sporadically and not checking voice-mails.  If your matter is urgent, I’m sorry but try and get me via e-mail.  Otherwise, it will have to wait for my return on June 17 since I won’t be in a position to deal with it until that time.

Perhaps I will learn some new aspects of foreign law that might come in handy for my files in the future.

Best regards,



Judicial Thinking – Part 3

Friday, May 10th, 2013

“I can’t believe that any right thinking judge would find [or would not find] …”  I’m somewhat still surprised at the number of clients and even colleagues (usually pure corporate / commercial lawyers) who make statements like this.

There is a computer programming mantra which says “Garbage In / Garbage Out”.  In other words, if you write bad computer code (garbage in), you will not get the results you were looking for (garbage out).  While that can apply sometimes for the legal process, a variation is that what a non-litigation lawyer will sometimes see is “Incomplete In / Garbage Out”.  This is because of the rules of evidence for the legal process.  For example, if Daisy tells me that Gatsby went to Oxford, I naturally assume that Gatsby is an Oxford graduate.  Why?  Because (i) I have no reason to disbelieve Daisy; (ii) I have no reason to believe that Gatsby would lie to Daisy; and (iii) because, in the grand scheme of things, I probably don’t care too much about where Gatsby went to school.  Those factors being the case, I’m content to accept that Gatsby went to Oxford and eventually over time I will have accepted it so much that I will probably tell someone who asks me that Gatsby went to Oxford.  In a trial, however, the court will not accept this type of evidence.  Firstly, if evidence is being put before the Court, then it is assumed that everything has some importance.  Thus, where Gatsby went to school will mean something (either as a material fact or even as a factor in assessing Gatsby’s credibility as a witness).  Secondly, I cannot prove that Gatsby went to Oxford by having Daisy get in the witness box and say that Gatsby told her that he went to Oxford.  I will have to either put Gatsby in the box to give that evidence or else go through a reliable third party – such as someone from the Oxford registrar’s office who can confirm that Jay Gatsby was an Oxford student.

What does this mean for the litigant.  Well, first and foremost, it means that judges are coming to the lawsuit with a ”clean slate”.  Jay Gatsby is seen as a person of first impression.  The judge will not have gone to any of Gatsby’s parties and will (in most cases) not even have heard of Gatsby.  So all of the “background knowledge” that exists between the parties will not be known to the judge.  The only way that the judge learns these facts are if they are put into evidence before the judge.  If they are not put in front of a judge, either because they are not permitted (such as Daisy saying that Gatsby went to Oxford) or because a tactical decision was made to not introduce that evidence at trial, then the judge will not know that information.  That is where the disconnect often happens when someone says “I can’t understand how the judge could have come to this conclusion …”  The answer is often because everything that YOU know wasn’t made known to the judge for one reason or another.

If you want pure and total fairness, then you will have to appeal to God (or whichever higher being or authority you profess faith in) because God is all-knowing and only God can truly determine who is right and who is wrong.  Judges aren’t gods and they don’t profess to be.  They do the best they can with what is presented to them.  If Party A decides to not introduce facts X, Y and Z for some tactical reason, and if the judge decides against Party A – but might have found in Party A’s favour if the judge had known about any or all of X, Y or Z – then Party A cannot blame the judge.

Beyond the facts that are put to the judge, however, there is also the issue of how it is presented.  Judges are not robots with absolutely no biases.  Judges are human and they have biases – like everyone else.  If you have a car crash involving a sweet little old lady and a punk rock drummer who abuses cocaine, the chances are that if both of their stories are completely equal, the judge is more likely than not to accept the evidence of the little old lady.  Now, if you give the punk rock drummer a shave and a haircut, whiten his teeth, put him in a nice suit that covers up his tattoos, remove his piercings and keep out any evidence that relates to his cocaine abuse (which is quite possible if it is not relevant to the lawsuit), then the chances of the punk rock drummer winning the lawsuit go up substantially.  And if he wins, then the little old lady and her family will likely be the ones saying “I can’t understand how the judge could have come to that decision” – because they know what he looked like on the day of the accident and for one reason or another didn’t bring to the judge’s attention that the punk rock drummer wasn’t the “clean cut All-Canadian boy” that he appeared to be in court.

One of the keys to winning your lawsuit is to bear in mind that the judge’s thinking will be greatly influenced by both what is presented to the judge but also in some instances how it is presented.  If you are handling your own small claims court trial, don’t go in looking like the punk rock drummer in my example.  But however you go before the judge, make sure that the judge gets ALL of the facts necessary to find in your favour and don’t assume that the judge knows what you know.

Something to think about.