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This Time, Abusers Are Lawyers

Residential school victims endure shameful legal process.

By Rafe Mair 12 Mar 2007 | TheTyee.ca

Rafe Mair writes a Monday column for The Tyee. Mair's website is http://www.rafeonline.com and his latest book, Over the Mountains, is at your bookstore.

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Matthew Williams. Photo by J. Windh.

When there are too many policemen, there can be no liberty.
When there are too many soldiers, there can be no peace.
When there are too many lawyers, there can be no justice.

-- Lin Yutang (1895-1976), Chinese-American writer, translator and editor.

I read Jacqueline Windh's article Survivors Wait While Lawyers Squabble two weeks ago in The Tyee with many emotions.

I was ashamed at the way the natives in the legal process she reports on were treated by the lawyers and the process in general.

I felt shame at the delays, which cost the victims so much distress and money.

I felt shame that lawyers were taking a "cut" when liability wasn't in question.

And mostly, I suppose, I felt ashamed at the profession I used to practice.

The hearings in question are to determine, from victims of residential schools, which of three categories of damages they fit into. This means that people who are now elderly must tell all about what happened to them 60 or 70 years ago. This is not only a daunting task, it amounts, as we will see, a search for evidence that forces the victim to relive his agony.

In Windh's article, Matthew Williams, a member of the Tla-o-qui-aht First Nation, sets the stage:

"Let me tell you what it's like at a hearing. I'm in a room, and there's my lawyer in front of me, an adjudicator to my right, two women from the government, and then one or two native counsellors at my side, who I've never met before and who are usually women. Each time, I'm telling this to four different women [emphasis added] that I've never seen before, and to an adjudicator who I've never seen before, trying to tell them about things that happened to me way back in 1951."

Mr. Williams's main village, Opitsaht, is just one of many native villages on Indian reserves where former Indian residential school students are waiting to be compensated for the unlawful confinements and physical and sexual assaults that took place decades ago in the schools.

"They ask me, 'What did it feel like when the priest stuck his penis up your ass for the first time? Did it hurt? Did it bleed? What did it feel like, having him breathing down your neck?' I was eight years old."

Who the hell would ask such a question? What client would permit his lawyer to act that way? The answer is that the lawyer is well trained by the system for the task of being a vicious cur for the federal government.

Litigation nation

According to the B.C. Law Society about 10,000 lawyers practice in British Columbia whereas, until a short time ago, there were only 8,000 in all of Japan. That's changing in Japan as that country rushes to join the U.S. and Canada as the most litigious nations in the world.

According to B.C. Work Futures:

"In 2000, the average annual earnings for all individuals in this occupational group [the legal profession] were $99,200. The majority (76 per cent) worked full time for the full year, compared to 43% in the general workforce, and they received an average of $107,900 in earnings, which is more than double that of the average full-time full-year worker ($44,200). The number of those employed in this occupation rose from 6,180 in 1990 to 10,100 in 2001. About two years after graduation, university graduates starting out in this profession reported an average annual income of about $74,300."

Since I left practice in December 1975, the demand for lawyers has increased exponentially and the cost of doing business has increased accordingly. When Japan got by with 8,000, it had about 125 million people, while B.C. needs 10,100 lawyers for 4 million. The United States has a million lawyers for about 300 million people. While these are approximate numbers, they are close enough to tell us that our society supports a hell of a lot of lawyers.

I know that old "when I was a boy" stuff is hard to take, but I can tell you that in the '70s you made nowhere near the then-equivalent of $75,000 after two years, the reason being, apart from partners' frugality, there wasn't the amount of business there is today.

You can't blame young people for flocking to law schools when there's so much loot to divide. The cause and the cure rests with the public, so the question becomes, how do we reduce the supply of lawyers by reducing the demand for them?

The answer is simple: to reduce the number of players you have to reduce and often eliminate the playing fields.

Fluffed up featherbedding

Some things have been done such as increasing the jurisdiction of small claims court to $25,000. They should add a zero to that and hear all personal injury claims in that most efficient system. I suppose you should have a "however" clause if a judge decides the case should be held in Supreme Court, but they should be few in number.

The Supreme Court rules, as thick as my Oxford dictionary, should be laid to rest and everyone start again. The opportunities these rules provide lawyers to run up the bill are unbelievable. They do so much of this legal featherbedding, they no longer realize that's what they're doing!

They think that adjournment after adjournment to accommodate their schedules is beneficial to the client who must pay for all the applications to the judge for a postponement.

I remember when in practice one could make an application for a creditor, such as a bank, for "summary judgment," meaning instant judgment. The rule was designed for cases where it is simply money owed and there's no apparent defence. I once told a client that I could delay this a year, by making stalling applications to a judge in chambers, and I did! If I were still at the bar, I might be disbarred for admitting this, but I'm not, and the practice was and is wide spread. Why, just the possibilities for adjournment and other contentious and fee-producing delays prior to going to trial are enough to make it unprofitable for lawyers to get on with the actual trial too quickly.

Losing sight of justice

But something else has happened. Lawyers have drifted into a lot of areas that not only don't need them, but suffer for their presence. I often used to ask, only partly tongue-in-cheek, why the hell I was an underpaid talk-show host when I could hang up my shingle again and get into the huge and flourishing aboriginal claims feast of ever fattening fees.

This, in a roundabout way, gets us back to Jacqueline Windh's story. I'm not sure if Mr. Williams had a lawyer, but if he did, he could expect to pay up to 40 per cent of the award in fees. This is madness. And it's unconscionable. There is no question of liability -- only what category of compensation each claimant fits into, determined by him remembering and recounting enormous pain. Again I go back to small claims court and suggest that any of those judges -- including retired judge Alfred Scow, an aboriginal who has made an outstanding contribution to his people -- could handle these matters quickly and fairly.

There is, of course, a place for questioning all claimants in any contentious matter. That, however, does not mean that claimants dealing with matters that occurred in their childhood should be treated by the system as if they're claiming a bogus "whiplash" case. If, in these tragic cases of abuse of children, taken from their culture by force and subjected to unspeakable acts 50 years ago, one or two are, compared to the others, "overcompensated" (how you would define that I don't know), then so what? It can't possibly be worse than moneys paid by ICBC out of our premium dollars to undeserving claimants every day of the year.

Most of all, though, there is no place for a question like, "What did it feel like when the priest stuck his penis up your ass for the first time? Did it hurt? Did it bleed? What did it feel like, having him breathing down your neck?"

Any system that permits that sort of legal brutality needs instant overhaul.

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