Category: law

Fighting the good fight

January 21, 2021

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!

Age- the final legal frontier?

December 7, 2018

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

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Buckle Up- its going to be wild ride in Real Estate marketing

August 26, 2018

Nowhere is the adage ‘knowledge is power” more applicable than in the marketing of real estate.

Simply knowing what is available on the market, and for what price, has always been a chore for buyers. In pre-internet days, the only efficient way to research the market was to use a printed MLS listing catalogue, access to which was tightly controlled by realtors. If you wanted access, you became a realtor’s client!

The advent of the internet made much more information available to the consumer, but even internet listings often withhold vital information (like price) which is available only by contacting the listing realtor.The real estate industry as a whole has always sought to keep for itself the treasure trove of data  found in both MLS listing documents and previous sale histories. This resulted in a  seven year court battle with the Federal Competition Bureau, which has only just now concluded, with the Supreme Court of Canada refusing to hear the appeal of the Toronto Real Estate Board, the proxy for the industry.

In the result, the Toronto Board has been ordered to abandon all restrictions on the display and use of data from its Multiple Listing Service, and the rest of the county’s real estate  boards are expected to fall quickly in line.

This court decision paves the way for internet entrepreneurs to unleash their creativity and begin designing new and disruptive models for the delivery and analysis of real estate market information, and could lead to some exciting experiments in new ways of marrying up the buyers and sellers of real estate.

Whether exciting experiments on the bleeding edge of technology will prove beneficial to the consumer in the long run remains to be seen, since an experienced traditional realtor brings more to the table than just insider market data; they bring an entire skill set, as investigators, negotiators and even as life counsellors.

Like it or not  however, the Supreme Court has opened the barn door wide, and  disruptive change is on the way, so buckle up for the ride.

 

 

Rewriting History

February 16, 2018

Who would have thought that it would be the CBC in court defending the likes of the now disgraced General Cornwallis, Father of Confederation Sir John A McDonald or even our first judge, Sir Matthew Baillie Begbie, while the rest of politically correct society is demanding that they be removed from public view because of their racist views. Given the mother corporation’s penchant for political correctness, I’m sure this defence  was quite inadvertent, but the precedent the CBC has set may well help these historical figures now branded as  pariahs  to retain at least some of their legacy.

The case was one of criminal contempt against the Corporation, brought against the CBC by prosecutors in Alberta for the broadcaster’s refusal to remove a previously published story from its website. The story, and accompanying photograph, concerned a 14-year-old girl who had been killed. At the time of publication the story was completely legal and proper; the sort of story aired every day by the CBC, and simultaneously posted to its online edition.

The trouble began a few days later when a man was charged with her murder and the Crown, as it was required to do by the Youth Criminal Justice Act, sought, and was granted, a publication ban on the girl’s identity. That Act protects the identity of under-aged victims as well as youthful accused persons.

The Crown then demanded that the CBC essentially ‘un-publish’ its earlier story, by removing it from its online archive. The CBC refused, resulting in the Crown requesting a citation for criminal contempt against the Corporation.

The decision of the Supreme Court of Canada was a unanimous 9-0 ruling in favor of freedom of expression. After all, the Crown wasn’t asking print newspapers to destroy their archives, or to attempt to retrieve their printed stories from their subscribers, or from libraries.

On one level the CBC case can be confined to its particular facts, but on another perhaps stands for the proposition that you cannot order the rewriting of  history by demanding  the “un publishing” of  historical material.  So where does that leave Cornwallis, McDonald and Begbie? Well,  it appears they may be safe for the time being from being excised from the history books, – but their statues ? Ah, that is  something else entirely- they shouldn’t sit too comfortably upon their pedestals!

The Law of Trusts and foreign investors – throwing the baby out with the bath water

February 11, 2018

According to Wikipedia “the trust is considered to be the most innovative contribution of the English legal system. Today, trusts play a significant role in most common-law systems, and their success has led some civil law jurisdictions to incorporate trusts into their civil codes.”

So, it may come as a surprise to some that our British Columbia government is considering running amok through the venerable law of trusts, a centerpiece of the English common-law system since sometime in the 12th century, in order to close a perceived tax loophole enjoyed by a few foreign investors. Exactly what the Legislature intends to do isn’t clear, but their rectnt rhetoric suggests that they view the use of trusts in real estate transaction as somehow evil and sleazy.

At issue is the fact that our land title office records only the legal, or registered ownership of a property and does not identify “true” or “beneficial” ownership, which   may rest with someone else entirely, if trusts, ( or even corporations) are  involved. In a trust, one person, the “trustee”holds title to a property for the benefit of another person – the “beneficiary”. Such arrangements are private and unrecorded, so can easily disguise the actual ownership of property by a non-resident.

It is somewhat ironic that the concept of  a trust was initially developed precisely to safeguard the rights and property of a group of non-residents – the crusaders, who needed a mechanism to have their estates held and managed for them while they were off in the Holy land chopping off heads, and, equally as importantly,  later reliably handed back upon their return.

When BC imposed its 15% foreign buyers tax, I’m guessing it took most lawyers on average less than  three minutes to figure out that the judicious use of a trust arrangement could completely avoid the imposition of the tax, and a year or so behind, the government has now belatedly come to the same conclusion, referring to bare trust arrangements  as a heinous “loophole.”

I find “loophole” to be a rather pejorative description of one of the foundations of our legal system, There is nothing shady or nefarious about Trusts. They are used daily, often employed for the protection of the young, or the disadvantaged, as well as for wealth preservation, and tax planning. They are a tool, like any other, capable of use by both good guys and bad

I worry that, in attempting to stem the tide of diry money washing into the Province the governmnet may foolishly start tinkering with the law of trusts, rahter than tackling the probelm directly such as by banning the recipt by casinos of hackey gags stuffed ful lof  smal ldenomination  bank notes.

Uber for Lawyers

January 15, 2018

I have a large file bucket in my den where I throw all my scribbled notes  concerning business ideas, blog posts and the like. I sift through them periodically  in search of inspiration, and I’m always surprised at how many relate to the topic of change in the legal profession. Disruptive change is coming , and the possibilities fascinate me.

Last week I came across a rather cryptic “note-to self” that said only “Uber for lawyers”- it was an aide -memoir scrawled on the back of some printed material from a lawyers retreat I had attended with lawyers from my previous firm last year.

Fleshed out, the idea  runs something like this: we as lawyers  (especially those of us who practice in suburbia) spend an inordinate amount of time commuting to, and cooling our heels at, mandatory, but low or no value court appearances – showing up to fix trail dates, for pre-trial conferences, arraignments, and other assorted  procedural matters. Often these appearances take only a  very few minutes of court time, but consume half a day or more of the lawyers time, which the hapless client must pay for.

There ought to be a better way! so what if you could somehow connect with another lawyer who was going to be languishing in line in the same court, and pay him or her to make the appearance for you? We have long used ad-hoc “agency” arrangements for these nuisance  court appearances, but it can be frustrating and time consuming trying to track down an appropriate agent. We need an Uber to act as matchmaker and payment processor.

Well, I suspect that the folks at Vortex Law must have sulked  into my den  in the dark of night and rifled through my “great ideas” file, because they have stolen my idea, and have now launched a website where  law firms needing a warm breathing body in a particular court on a particular day, can shop the gig to a roster of pre-vetted lawyers. Looks like the service is only available in the US for now, and they are focusing on States like California, which are renowned for their time-sucking court appearances . but its only a matter of time before the service is available here.

Two questions remain, will the Vortex service actually help to reduce the cost of litigation, and , will this Uber for lawyer launch in Vancouver before Uber itself gets off the ground?

I, (law) Robot !

January 13, 2018

As  lawyers we have long been accustomed to the rigours of competition in the marketplace- there is a surfeit of lawyers on the street, and we are all jostling for the same clientele – ( that  elusive sub-set of the general adult population that has legal trouble and  enough coin in their pocket to pay to get out of said trouble), Read More