Make Justice Swift and Cheap

I say a cheer and a half for Attorney General Wally Oppal for wanting to speed up criminal cases in this province. As it stands, if a lawyer is lucky enough to land a mega trial, like Robert Pickton or the "tobacco suit," why, he's set for life. Done properly the case can be stretched out for months, hell, years -- maybe into decades. And the lolly just keeps rolling in.

But I only give Mr. Oppal a cheer and a half because his ex cathedra observations are just the stuff of windbags -- Mr. Oppal hasn't really done anything nor, more importantly, can he. The fate of criminal law is, you see, in the hands of the Federal Minister of Justice, Mr. Vic Toews. The good news is that the federal minister is one of the old-line Reform party hardliners and would likely do away with trials altogether given the chance. His idea of prison reform would be to introduce the cat-o-eight tails and then repent that he didn't go the whole nine tails.

Last week I attended our class reunion and spoke with a number of lawyers in or recently in the court system and while they might well argue with some of what I'm going to say (but not too vigorously if they've made their poke and retired), they would all agree there's a pressing need for reform of the civil law. (Alright dammit, it was 1956.)

And that's where our AG can make a difference. He won't do anything, or do very much, of course, because the legal profession will rise as one, intoning appropriate sections of the Magna Carta, the Bill of Rights and the Charter of Rights and Freedoms as they castigate a government that wants to see justice happen more quickly. Bet on it, they'll pull out all the stops because any serious reform will hit them in the pocket book and hard.

We have more lawyers in B.C. than they have in the entire country of Japan. Moreover, they somehow have come to believe that making anything less than a half a mil' a year is tantamount to penury.

Traitor to my legal tribe

Am I not a lawyer? Have I turned on my profession? The answer is yes to both counts.

I left my law practice in December 1975 when I went into the B.C. cabinet. But I'm bound to tell you I got out just in time, for it was around then that IBM took over the law offices. Before that, lawyers would keep notes of work done for clients but not with great particularity. We did a lot of pro bono, i.e. free work. I can remember three cases in particular where my client lost at trial and I took the appeal for nothing. IBM changed all this. Now the lawyer has, within easy reach, a little microphone. When I practiced, and a client called me to see how the case was going, nine times out of ten I wouldn't record that call. Now I would pick up that little mike and say, "Bloggs versus McGillicudy, phone call with client, point one." If my rights are a modest $300 an hour, that call costs one tenth of an hour, or $30, even though it only lasted 30 seconds. The time is rounded out, you see -- and never in the client's favour.

One of the nifty ways lawyers pad their little wallets thanks to you the client is by adjourning things. And every time there is an appearance in court for an adjournment or some other procedure it's more loot for your barrister. No matter that the adjournment had nothing to do with you and in fact was contrary to your wishes -- you pay. And don't forget, that adjournment took a number of ".1" phone calls to arrange! Looking up the law is an unchallengeable bit of barristerial bullshit, usually good for some 1.0s sprinkled liberally throughout the bill. Same with "conferences" and "consultations." The opportunities are virtually limitless.

Why do apparently respectable men and women do this?

It's called the partnership meeting and God help you if you don't keep your end up! The managing partner is not asking you to do better work -- if that happens too it's a nice bit of serendipity -- he wants more billed hours.

The Supreme Court Rules are a veritable treasure trove for "litigators" as they are now called. Scarcely a page goes by that doesn't provide the possibility of a way to move those numbers along. The result is simple: only the wealthy can afford the Supreme Court of B.C. God forbid that your case goes to the Court of Appeal where the cost of the required transcription of the trial, called the Appeal Book, will make you think you must have just bought a Charles Dickens first edition.

Because lawyers make so much money they have expensive digs that attract more corporate fees, which means new or expanded offices must be acquired. And on it goes.

Oppal's opening

So what does Mr. Oppal have to do with all this?

Well, he's subject to federal jurisdiction over criminal matters but not for civil cases. He can re-make the entire civil system if he chooses.

What he needs to do is not rocket science. He expands the jurisdiction of the Small Claims Division of the Provincial Court system to $500,000 unless a party can demonstrate that the case is so complicated that it must be in Supreme Court. Small Claims Court is the court with short, simple and easy to follow procedures and where a lawyer is usually considered a nuisance -- which he mostly is.

In fact there would be little need for lawyers since the law in these matters is not generally in issue -- the case turns on the facts in most cases. The B.C. Supreme Court rules would not apply. Some cases that would go into Small Claims Court (the name should be changed to Provincial Court, Civil Division) include injury claims, contracts, property disputes and civil cases in general. The only thing that Mr. Oppal must do is acknowledge that Provincial Court judges are just as smart as those in Supreme Court -- and they are. In fact they are more in touch with the people than the cloistered judicial monks that populate the higher courts.

The lawyers will bellow like bulls on the make at this suggestion. "The people want justice!" they'll say. "Why, you're going to encourage people to sue!" What they won't say, of course, is, "This will cost us lawyers a fortune."

All I'm suggesting is that those matters that don't require an experienced barrister should be taken by the people into the people's court to be handled by "people" judges with the only rules being basic ones that all would accept and understand.

But what of the claim that more people will go to court? Turn that on its head and you find the real statement is that people should be discouraged from seeking justice by the enormous costs involved and that we should continue with a system that encourages the powerful to "money whip" the less fortunate.

This reform may bring some extra cases but justice would be swift and cheap. And as a betting man I wager that we could retire half of the existing Supreme Court bench and their support systems so that the public cost of justice would drop considerably.

Let me close with this. Those people shocked and angry at how long some criminal cases take should be reminded that if they could see how long many Supreme Court cases take they would be even more shocked. There is a marvellous cartoon that illustrates my argument. It shows a cow with the plaintiff pulling on the tether and the defendant pulling the tail. Milking the cow is the lawyer.

If the Attorney General brings in this sort of reform it will be a full three cheers from this former lawyer who found honest work.

Rafe Mair writes a Monday column for The Tyee. His website is www.rafeonline.com.