musings on life, on law , and on life in the law
I’ve long been a fan of the sharing economy. It has always seemed to me to be a mite wasteful that every house on our block has an aluminum extension ladder tucked under the deck or languishing along the side of the house, only to be dragged out a couple of times a year. Read More
Since the start of Covid things have been pretty boring for a litigator- sure, we get to argue the occasional motion via telephone, (since the courts in BC aren’t modern enough to permit video-conferencing) but nothing beats the heart-pounding cut and thrust of a real, flesh and blood trial, and those won’t be happening any time soon. So I was intrigued when I heard Rudy Giuliani inciting a mob the other day with a call to trial by combat- now, there, I thought, is a concept that could add some zest to the litigation process!
“If only it were possible –” I mused- “I’m 5 years younger than Rudy, and in better shape, so I’m pretty sure I could take him in a fight, – what a pity that trial by combat, in modern times, is no longer available- it would be a quick, and elegant solution to a huge problem.”
But wait, are we really so sure that trial by combat is no longer available ? After all, before he lost his mind to QAnon, Rudy was reputed to have a fair legal mind, so perhaps his suggestion wasn’t quite as looney as it sounded- time for a bit of research.
Trial by combat, originally a creature of Germanic law,was brought to England by the Normans, and found its way into the common law of England, seeing occasional use into the 1600’s when it fell out of favour, nothwithstanding that it remained a part of the labyrinth that is the common law.
That same common law sailed with the Pilgrims to the American colonies, and, with all its quirks and oddities, became the foundation of American law, so prior to the War of Independence, trial by combat, at least in legal theory, remained available to colonial litigants, whether or not they actually availed themselves of it.
England made several half-hearted attempts to legislate an end to trial by combat, including one effort, in a direct response to the Boston Tea Party, to outlaw the practice in the colonies, but all were unsuccessful. ( By all appearances it wasn’t exactly a burning legal issue at the time – it was rarely invoked- as Justice Bayley, of the English Court of King’s Bench wryly declared in 1818, when considering, and approving, a request for trial by combat ” one inconvenience which attends this mode of proceeding is that, the party requesting it must, if required, be prepared to stake his life in support of his accusation! )
So, when Independence came to the United States, trial by combat came with it.
Although my research has yet to uncover any instances of its actual use, (not counting high noon gun fights in spaghetti Westerns, of course) it appears that Rudy wasn’t the first to propose it. In 2016, Richard Luthman, a New York attorney actually obtained a ruling from that State’s Supreme Court, confirming that trail by combat was indeed legal, and, as a right not specifically otherwise addressed in the constitution, was therefore protected by the 9th Amendment. (The court did, however, also rule that a plain vanilla trial by jury would work just as well, and declined to order the litigants to fight to the death with broad swords).
The precedent having been set, in 2020 David Ostrom, a family law litigant in Iowa requested that the procedure be invoked to allow him to settle a custody and property dispute with his ex. with swords In response, the court ordered a sanity test, before hearing, and rejecting his request.
The common law system is a wonder; constantly changing and adapting to the times, as one case builds on the one preceding it. So, as the law appears to be developing now, based on the Ostrom case, passing a sanity test is a pre-requisite of invoking ones constitutional right to trial by combat. That doesn’t bode well for the prospect of me going mano-a-mano with Rudy any time soon, since he doesn’t seem to be studying for the test.
But hey, Rudy, show up with a positive sanity test and a negative covid one, and its your choice of weapons!
This happened long ago, when we were still young, and the dogs were still alive.
It was a couple of days before Christmas, and the last of the light was bleeding from a leaden sky on a raw, wet afternoon as I turned into the gravel parking lot at the park, the dogs quivering with excitement in the back seat.
The park was a bleak and deserted place in the twilight, but the dogs had been cooped up all day and couldn’t be denied their run. They shot from the car and bounded away as I followed less enthusiastically. Crossing the parking lot, I saw what looked like a large wad of paper on the ground, and gave it a half-hearted soccer kick as I passed.
A chilly hour later, fingers and toes numb, but the dogs now panting contentedly, I regained the parking lot, navigating by flashlight. Its beam picked out the same wad of paper, It looked out of place,- not at all like refuse, so I stopped to examine it more closely. It wasn’t a randomly crumpled ball, but rather a carefully folded mass of what appeared to be lottery tickets- a very large number of lottery tickets. Had they been purposely discarded, or possibly inadvertently lost? It didn’t seem right to leave them lying in the gravel, so I shoved them in a pocket.
Back in the warmth of our home, fire crackling and Christmas tree alight, I remembered my find, and commandeered the dining room table to spread out and further investigate it. Peeling back the top layer of tickets I discovered more beneath, and another layer beneath that. There were literally hundreds of lottery tickets, all for the draw that had happened the previous night.
Younger readers will scoff, but in those pre-computer days, lottery draws were held on television, with a hostess prancing around in a ball gown to retrieve coloured and numbered ping pong balls. If you missed the show, you had to resort to the local newspaper the next day to see if you had won; so I found our newspaper, and the results page, and began the labourious task of checking the numbers.
It soon became obvious that I wasn’t the first to have undertaken this chore- there were pencil marks on each ticket, and matching numbers circled. There were too many tickets to hold my interest in double checking them all, but I spent a few minutes, with a sinking heart, doing a random sampling.
The awful truth was quickly revealed- this was simply an enormous wad of losing tickets – nary a one had more than two matching numbers. Never personally having invested more than $5 on a lottery draw, I was stunned by the size of the loss. It was staggering. By a quick tally, scattered across our dining room table were over $3000 of tickets- all completely worthless.
$3000 is a lot of money today- back then, it was a huge sum, easily a couple of months wages for many- the price of a late model used car, or even the down payment on a starter home, and far more than you would need for even an extravagant Christmas, and someone had just pissed it all away.
Had it been a ‘Hail Mary’ attempt to break free of debt? If so, had they borrowed to fund the wager and now found themselves even deeper in the hole? Or had this been some Kipling-esque folly, throwing away hard won savings in hopes of grabbing the brass ring?
“If you can make one heap of all your winnings
and risk it all one on turn of pitch-and toss.
and lose, and start again at your beginnings
and never breathe a word about your loss “
Somehow I just couldn’t picture a nonchalant loser tossing away the bundle of losing tickets with aplomb. This smacked more of desperation. Deep desperation. This loss wouldn’t have just stung, it would have wounded to the core, and it must have been a sickening torture to slowly, carefully inspect every number on every ticket, with hope seeping away as each was discarded, leaving only despair at the end.
Perhaps, I reflected, it is something about the Christmas season, the pressure to create a perfect, magical experience suitable for a Coca-cola commercial, that drives desperate people to take such desperate chances.
In the end, my gambler must have stood amongst the bare trees in the chilly twilight of that deserted parking lot, staring down the sombre reality that however awful his Christmas season had begun, it had now been made unnecessarily so much worse.
Not everyone’s Christmas is a Hallmark Christmas.
I wonder how long after the glaciers of the last ice age retreated from the coast that someone stood on the gently sloping pebble beach, dug clams at low tide, considered the sheltered aspect of the bay, the nearness of fresh water, and decided to stay.
That first visitor threw the shells from that first dinner onto the beach, as did his family, and then the clan that eventually came to live there. Over the millennia they became the Mamalilkukka people, and they named the place Mimkwamlis -‘the village with rocks and islands out front’, and the shells of the clams they ate were thrown towards the beach, creating a mound that grew ever larger over the centuries.
By the time the first Europeans stumbled upon the site, the village was perched atop an impressive twenty foot midden of composted clam shells. The debris of thousands upon thousands a of dinners past creating a steep fortification. Although the people of Mimkwamlis were part of the the Kwakwaka’wakw speaking nation, and shared a language with their neighbours, not all of them were friendly.
The arrival of the strange men in their huge winged canoes, eager to trade for otter pelts was recorded for posterity in ochre on cliffs lying just to the south of the ‘village with rocks and Islands out front’,
and trade goods flooded the small village, including blue and white crockery from china which had, in turn, been bartered for otter pelts. When the crockery broke – it too was thrown on the beach.
The white men soon turned ugly, dispatching missionaries to convert the Mamalilkukka to their god, outlawing their potlatch ceremonies, and stealing their regalia. On Christmas day 1921 Mimkwamlis was the site of the largest potlatch ever held on the coast, and the site of the largest mass arrest for the crime of dancing and giving gifts (at Christmas !)
Whether it was those arrests, or the forced internment of the village youth in residential schools, or other ravages of colonialism that broke the back of the village, soon it was abandoned, leaving only ghosts, a huge midden, and a pebble beach scattered with broken pottery as the ever present salal began to reclaim the site.
A few decades passed until a then-young couple beached their kayaks on that pebble beach,
scrambled up the midden and pushed through the salal to see the remnants of the village- a couple of still standing house posts, and, in the underbrush, a toppled totem pole, a carved wolf head barely discernible under a thick coating of moss. Returning to their boats they stopped long enough to scoop a handful of old pottery shards from the beach as a souvenir.
Two more decades passed until an opportunity arose for the no longer young couple to return to the village with 
rocks and islands out front, and as they packed their duffel for the trip, the thought occurred – what of those pottery shards that had sat gathering dust on a bookshelf for all those intervening years- after arriving by sailing ship, being bartered for pelts and used for many years before being discarded on a peaceful beach, would they be discarded again in a modern landfill when the time came for their executors to clear their home? Somehow it didn’t seem right – it was time for them to go home.
And so the shards went into the duffel, and up the treacherous path to the top of the midden. The village site was much changed. It too was showing the decay of age. The wolf head totem had vanished completely, crumbled into the forest floor, 
and salal had reclaimed most of the site, but a pair of house posts still stood, and at their base, in a shallow hole, the shards were returned home.
All but one.
“Preppers” (guys consumed with making preparations for disaster, whether zombie apocalypse, plague, nuclear disaster or mundane breakdown of law and order) are a modern phenomenon, so I’m wracking my brain for an historical example of, say, a prepper in a tricorne hat. The closest I could come until now was Paul Revere. He certainly wore the hat with aplomb, and was quick to spot an imminent danger, but alas, history doesn’t record whether he also had stockpiles of food and ammunition, as a true modern day prepper would.
But who knew that right here at home, in the very precincts of the Legislature, there were lurking a pair of modern day Paul Reveres, sporting frock coats and tricorne hats, and working diligently to save us all from disasters, both real and imagined.
They are, of course Gary Lenz and Craig James,
the Clerk and Sergeant at Arms of the the BC legislature. I poked some fun at their rather outlandish purchase on our behalf of a log splitter and trailer in a recent blog piece, but that was before we had heard their explanation. Craig and Gary, we now learn, are preppers! Not only that, but prepping is part of their mandate. They are paid (rather handsomely, in fact) in part to keep the legislature safe in the event of disaster.
In times of crisis, we are told, people tend to congregate at the legislature (I didn’t know this, and must confess it isn’t part of my own household’s emergency bug-out plan, but I guess its a thing for some people) Ergo, the need for a cache of emergency supplies. In fairness, most large public buildings, and even a lot of private office towers do keep some rudimentary emergency supplies on hand-bottled water, blankets, first aid supplies, that sort of thing, but the plan for the legislature is a mite more elaborate. Our civil servant preppers have laid plans not just to provide some short term comfort for those who work in the building, but for large hordes of the local citizenry, should they descend upon the People’s House.
To that end, we might need bonfires to keep everyone warm, and for that, we need firewood, and for that, we need a log splitter- it only makes sense! We are told that the log splitter was only temporarily being stored at Craig’s home, pending completion of a purpose built concrete pad to house it, along with a large cache of emergency supplies, on the legislature grounds. Seems plausible, I guess. When the big one hits, we can all assemble on the legislature lawn and toast marsh mellows!
Personally though, I’m heading over to my brother’s house instead. He already has the wood burning fireplace, and if we can get my concept for the sharing of the wood splitter up and running, he will have a generous supply of fuel. More importantly though, he has a disaster preparedness room in his basement – it is filled only with dozens and dozens of bottles of single malt scotch- enough, indeed, to rival the private stash in the office of the Speaker of the Legislature.
His disaster plan? – in the event of the break down of law and order, use the booze as currency to barter for what you need, and, if the big one doesn’t come, we drink the scotch! Who needs a funny hat to be a proper prepper?
For many years I owned and operated a storefront legal clinic in a major regional shopping center, which afforded me a close-up view of the fascinating world of retail.
The Christmas season was always interesting. My first Yuletide in the centre saw me shaking my head as merchants squabbled over the brightness of the Christmas decorations in various corridors of the mall. We all paid our proportionate share of those decorations, of course, but the conventional wisdom was that shoppers were attracted to bright shiny things, so more of them would drift into the more brightly lit areas of the center. Angry merchants demanded that Santa and his elves be relocated to their particular aisle, and a thousand curses on any maintenance personnel who allowed the lights to burn out on any particular display.
My perennial holiday favorite however has always been the Christmas Eve parade through the mall, that I’ve dubbed the walk of the mall zombies. Until I was immersed in the life of the mall I was thought that the stories of guys doing their last-minute shopping on Christmas Eve was apocryphal-an urban myth- no one could possibly leave shopping for their loved ones to the last few hours available-could they?
I’m here to offer testimony that it is indeed true! Overall, the mall is usually deathly quiet on Christmas Eve, a few shoppers strolling through and picking up last-minute items, or checking out the early Boxing Day sales for something for themselves-that is, until dusk. As darkness descends and the parking lot lights wink on, an hour so before closing time, however, the procession begins.
Men, obviously straight from work, still wearing their work attire, be it business suit or mechanics overalls, wandering urgently but aimlessly through the mall, brows furrowed, eyes darting furtively from storefront to storefront.
Toys”R”us would barely rate a glance- obviously the wives had long since organized presents for the tykes. No, most of the traffic seemed headed for La Senza, with its sexy négligées, or Purdy’s, where the chocolates are already gift- wrapped, with a few more adventurous souls straying into the kitchen gadget store.
Every now and then a guy would foolishly wander instead into a consumer electronics shop, hell bent on destruction, and we would cringe. No wife, ever, wants a high tech gadget under the tree Christmas morning – might as well wrap up a power tool while you are at it!
Its a spectacle as predictable as the swallows return to Capistrano, or the great migration of wildebeest across the Serengetti, but nowhere near as impressive – just very, very sad
It happens to us all in business. A client is lost. Sometimes there’s a good reason for it, complacency has set in, service levels have declined, the competition has sharpened their pencil on price, or in my profession, a court case has been lost. Often though, there is no rational reason, or the loss is occasioned by forces beyond your control. Regardless of the reasons why, when a client leaves , especially a big one, it has a major, sometimes even fatal impact on your business. How you handle the loss says a lot about your character.
These musings were prompted by an advertisement that caught my eye in Friday’s Vancouver Sun. It was placed by Bob Stamnes and the team at Elevate Communications to mark the loss of their major long-time client Toyota. It was a classy piece, and set an example for us all. Well done!
Alas, I lack the technical skills to reproduce the ad properly, but here is the link
Please give it a read – its worth it.
So, there is an injured hawk on your sun deck- who ya gonna call? Read More
Today we salute the intrepid Emile Ratelband, joining him to commiserate as he cries in his beer over his unsuccessful court case.
His was not your run of the mill court battle, but was, as we legal types say, a “case of first impression”. No one had ever before petitioned a court to amend a birth certificate to shave 20 years off their age, but that didn’t stop Emile, a spry 69 year old Dutchman, from asking the court to re-set his age at 49.
His argument was simple, but ultimately unpersuasive: one is able to change other information contained in one’s birth record, such as name, or now even gender, so why shouldn’t one’s date of birth be equally malleable?
The court, while giving a tip of the hat to those old adages ” You are only as old as you feel” and “age is just a number ” told Emile that while he was free to imagine himself as any age he wished, they weren’t going to mess with government records.
As a Boomer myself, long in denial about all things related to age, I can certainly understand where Emile was coming from, but I can’t for the life of me figure out why he brought the suit. I can think of absolutely no advantage to having a re-jigged birth certificate, as it would deny me the joy of a half price fare on BC Ferries some days, and the Gov’t cheque that pays my monthly wine bill every month would suddenly stop.
Emile, the first rule in any law suit is “what do I get out of this if I win?” So I find myself in agreement with the court – feel as young as you want, but don’t try to disguise your real age – and bear in mind the sage comments of And Rooney:
“It’s paradoxical that the idea of living a long life appeals to everyone, but the idea of getting old doesn’t appeal to anyone.”
― Andy Rooney
There is an area of the BC coast roughly centred around Johnstone Straits that has been described as the “Serengeti of the Coast” for its abundant wildlife values.
To visit during monsoon season is a special treat, as the real coast, now devoid of summer people, Read More
THE DILETTANTE 