Wednesday, November 28, 2007

 

"Emotional exhaustion" in B.C. courtrooms ... and outside, too

.
During this week of waiting for the next instalment of the Basi Virk Basi / BC Rail Case, here's a glimpse behind the curtains of the courtroom performance. Our guide is Donald Brenner, Chief Justice of the B.C. Supreme Court.

Followed by a Citizen's comment on the same topic. - BC Mary




COST OF LITIGATION KEEPS YOUNG LAWYERS OUT OF COURT
Judge points out the difficulty of gaining courtroom experience

Ian Mulgrew
Vancouver Sun - November 28, 2007

The high cost of civil litigation means young lawyers are failing to receive needed trial experience, B.C. Supreme Court Chief Justice Don Brenner insists.

"I think it's a real problem," he said in an interview this week.

"We think there is a vacuum for younger counsel to gain trial experience."

But that's just one of the problems besetting the legal system that rarely receive public attention.

Another, for instance, is that the Supreme Court has been hit with retirements and a death this year that have led to its losing almost 10 per cent of the sitting judges.

On that front, Justice Brenner said he's hoping Ottawa is on the cusp of appointing a half-dozen or more judges.

The Supreme Court, he noted, normally has a complement of 88 justices (86 regular members and two associate chief justices) but is currently down seven justices.

"That strikes me as a lot," Justice Brenner said. "We had a number of vacancies created this year coupled with the judicial affairs adviser [who helps evaluate potential candidates for the bench] resigning, so the [federal justice] minister has taken some time to replace that person. {Snip} ...

In part, the situation is a reflection that the cost of legal services is far too high. Many people can't afford to go to court so the number of trials being scheduled is declining in part for that reason.

But also legal system stakeholders in the past few years have been adopting reforms to steer civil and family cases away from trial.

At the same time, large law firms don't want to write off the cost for junior lawyers in the name of education or apprenticeship.

By the time that a matter can genuinely bear the expense of two lawyers, it's usually worth too much to entrust to a junior.

Those trends have led to the vast majority of lawsuits and family matters being settled out of court or through less formal adjudication processes.

The problem is not so acute in criminal cases.

Patrick Doherty, who chairs the criminal law section of the Canadian Bar Association's B.C. branch, said there was lots of opportunity to gain trial experience through legal aid defence and Crown work.

The civil side, though, saw legal aid funding slashed by the provincial Liberal administration during its first term and that hurt many young lawyers.

"My perspective is that 15 or 20 years ago there was a great ability for more senior lawyers to take junior lawyers with them to a civil case," Justice Brenner opined.

"That practice has tended to fall away."

Without such experience, junior lawyers can lack the confidence to make decisions that will cut to the nub of an issue at trial. Inexperienced lawyers can waste enormous amounts of court time putting every iota of information before the judge and forcing him or her to find the crux of the case.

The judiciary in the last few years has taken steps to address the problem and participates with the Continuing Legal Education Society in a kind of annual "boot camp" for young lawyers.

The course allows young lawyers to practise their art in front of a judge, have their performance video-taped and later it is critiqued and evaluated.

Justice Brenner said that's not enough.

"We're hoping the justice reforms we're proposing and getting federal backing on will result in more young lawyers returning to the courtroom if we have a process that's more efficient and more economical," he added.

"I want to see us focus on getting the cases to trial in a cost effective way. Some of the things we're trying have succeeded in returning young lawyers to the courtroom -- such as the rule change for cases under $100,000."

By raising the limit for small claims court, as well, more work was created for young lawyers because it is not worth a senior lawyer's time to take on such a file. As the size of the case can't bear significant legal fees, articled students and junior lawyers get a shot.

But those briefs fall by the wayside after a year or two in practice and a young litigator can wait years before seeing the inside of a courtroom again, and longer still before being called upon to speak as a "junior."

In spite of the impetus to have cases resolved through less expensive mediation or alternate adjudicative proceedings, Justice Brenner said trials must remain a cornerstone of the legal system.

"I don't think we should be channeling everyone away from formal adjudication," he insisted.

"The common law changes and adapts only with formal decisions. We need trials, but we need to make sure that the costs don't cause cases to fall away. And we need to make sure the process is efficient so it doesn't cause people to drop out from emotional exhaustion."

imulgrew@png.canwest.com

"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""
G West said...

Pardon me for a moment while I dry my eyes and compose myself to address this heartfelt plea:

"The common law changes and adapts only with formal decisions. We need trials, but we need to make sure that the costs don't cause cases to fall away. And we need to make sure the process is efficient so it doesn't cause people to drop out from emotional exhaustion."

Touched though I am, I mean really, who couldn't be, that Mr. Justice Brenner is concerned for the emotional, mental and “financial” (don’t forget financial) health of his brothers and sisters in the legal profession, I think the good man has gotten rather too exercised about the wrong situation.

And he's concerned about the wrong people.

The fact of the matter is, and I apologize for coming across in a lawyerly fashion, that the real problem here is the fate of the PEOPLE and not the damn lawyers.

I could start with a reference to Betty Krawczyk of course, she’s another ‘product’ of the legal system after all, and I’m certain she’ll be overjoyed (but frustrated) to learn of the Chief Justice’s affection for actual ‘trials’ where people get to call witnesses and plead their case. If I were her I think I’d keep a copy of Justice Brenner’s musings in an envelope in her handbag. Perhaps next time Madame Justice Brenda Brown considers a peremptory conclusion to an action by ‘dismissing’ an accused person’s right to argue his or her case before a panel of peers she could be reminded that the ‘common law changes and adapts only with formal decisions' in real trials

Coming from the Chief Justice, perhaps Madame Justice Brown would actually listen to such an argument.

You know Mary, that little statement from Chief Justice Brenner could as well appear as a new header on your website – but making it clear that the reference to folks who are in danger of dropping out on account of emotional exhaustion are not the young lawyers of the province.

In fact, the real concerns, and I wish Ian Mulgrew would now take as many words to express them instead of just covering the sympathetic musings of the chief justice, of the people are much more concentrated upon this simple thought: That the actual facts and the real truth about the way OUR government operates are in danger of being buried forever in the endlessly attenuated process of bringing Messrs Basi, Virk and Basi to trial at all.

Let’s have a little less concern for the young lawyers of the province and a little more concern for the state of Justice in this province.

As the Pickton trial goes to the jury, could we PLEASE move some of that army of reporters from New Westminster to the Law Courts in Vancouver? Not to diminish the importance of the Pickton trial (although I doubt the conditions under which the women of the DTES are living now will be much improved no matter what happens subsequently to Willy Pickton) I believe (perhaps hope is the better word) the outcome of the case Elizabeth Bennett is currently shepherding toward an actual OPEN trial has the potential to be far more critical to the kind of future and the kind of governance we get here in British Columbia.

I don’t know if the chief justice reads blogs Mary – but I hope a lot of ordinary concerned citizens do. This case is in serious danger of being derailed and unlike the mysterious CN derailment reported once on the radio yesterday I don’t think it should be allowed to go quietly.

And I know, not to be too hasty about this, that there are a great many other British Columbians, concerned about a wide variety of cases - some of which you and I know a fair bit about - who will also be really PLEASED that the Chief Justice is going to start to do something REAL about the handling and disposition of those cases too.

If I could only believe - emotionally drained as I am!

""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

Good one, G West. Brilliant and timely. Many thanks. - BC Mary

""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

Comments:
Pardon me for a moment while I dry my eyes and compose myself to address this heartfelt plea:

"The common law changes and adapts only with formal decisions. We need trials, but we need to make sure that the costs don't cause cases to fall away. And we need to make sure the process is efficient so it doesn't cause people to drop out from emotional exhaustion."

Touched though I am, I mean really, who couldn't be, that Mr. Justice Brenner is concerned for the emotional, mental and “financial” (don’t forget financial) health of his brothers and sisters in the legal profession, I think the good man has gotten rather too exercised about the wrong situation.

And he's concerned about the wrong people.

The fact of the matter is, and I apologize for coming across in a lawyerly fashion, that the real problem here is the fate of the PEOPLE and not the damn lawyers.

I could start with a reference to Betty Krawczyk of course, she’s another ‘product’ of the legal system after all, and I’m certain she’ll be overjoyed (but frustrated) to learn of the Chief Justice’s affection for actual ‘trials’ where people get to call witnesses and plead their case. If I were her I think I’d keep a copy of Justice Brenner’s musings in an envelope in her handbag. Perhaps next time Madame Justice Brenda Brown considers a peremptory conclusion to an action by ‘dismissing’ an accused person’s right to argue his or her case before a panel of peers she could be reminded that the ‘common law changes and adapts only with formal decisions' in real trials

Coming from the Chief Justice, perhaps Madame Justice Brown would actually listen to such an argument.

You know Mary, that little statement from Chief Justice Brenner could as well appear as a new header on your website – but making it clear that the reference to folks who are in danger of dropping out on account of emotional exhaustion are not the young lawyers of the province.

In fact, the real concerns, and I wish Ian Mulgrew would now take as many words to express them instead of just covering the sympathetic musings of the chief justice, of the people are much more concentrated upon this simple thought: That the actual facts and the real truth about the way OUR government operates are in danger of being buried forever in the endlessly attenuated process of bringing Messrs Basi, Virk and Basi to trial at all.

Let’s have a little less concern for the young lawyers of the province and a little more concern for the state of Justice in this province.

As the Pickton trial goes to the jury, could we PLEASE move some of that army of reporters from New Westminster to the Law Courts in Vancouver? Not to diminish the importance of the Pickton trial (although I doubt the conditions under which the women of the DTES are living now will be much improved no matter what happens subsequently to Willy Pickton) I believe (perhaps hope is the better word) the outcome of the case Elizabeth Bennett is currently shepherding toward an actual OPEN trial has the potential to be far more critical to the kind of future and the kind of governance we get here in British Columbia.

I don’t know if the chief justice reads blogs Mary – but I hope a lot of ordinary concerned citizens do. This case is in serious danger of being derailed and unlike the mysterious CN derailment reported once on the radio yesterday I don’t think it should be allowed to go quietly.

And I know, not to be too hasty about this, that there are a great many other British Columbians, concerned about a wide variety of cases - some of which you and I know a fair bit about - who will also be really PLEASED that the Chief Justice is going to start to do something REAL about the handling and disposition of those cases too.

If I could only believe - emotionally drained as I am!
 
There will be no justice, if we all, are not there in the end! Stay strong and keep the faith.
 
Post a Comment

Links to this post:

Create a Link



<< Home