RSS FeedWhat can judges really do?
Judges are powerful people. Sometimes, misconceptions about their power lead to calls for an elected judiciary or some other form of outside intervention in our courts. These are all bad ideas. Our judiciary must be independent from all potential litigants (including the state). It is also sufficiently self-regulated yet flexible.
The most important principle of our judicial system is that it is passive. It never goes out and forces anyone to do anything unless someone asks it to resolve a dispute. An aggrieved person or organization (or the state) must bring a valid cause of grievance to the courts’ attention. The courts will generally give the party blamed for the grievance a chance to dispute the accusation. After reviewing the dispute, the courts will resolve it by granting or denying a requested remedy to whoever brought the dispute to the courts. Courts’ decisions are always about a specific dispute before them, and you must be somehow connected to this dispute for the courts to be able to force you to do anything. (There are important exceptions such as references by governments to provincial appellate courts or to the Supreme Court of Canada.)
For example, if someone wants to stop a neighbour from smoking because it harms their child, they would go to the Superior Court. A judge will hear from both sides and make a decision in this particular dispute. But that judge cannot outlaw smoking near children for everyone everywhere.
If another judge refuses to enforce an anti-prostitution law because she finds it unconstitutional, her decision applies only to the specific person who was charged with a criminal offence under that law and who alleged to this judge that the law was unconstitutional. The judge cannot force the police from arresting the next john.
A judge’s decision can be binding only on those who have something to do with the specific dispute before that judge. If a judge finds a law under which Mr. X was arrested unconstitutional and as a remedy orders whoever has custody of Mr. X to release him, he must be released as contempt of court is a criminal offence in itself. But if Mr. X is arrested again for doing the same thing later on, a different judge doesn’t have to order the police to release him. The original judge’s decision is not binding on a fellow judge. Even the original judge can strangely change his or her mind and deem the law constitutional.
But judges respect each other’s decisions. This respect is also called deference, and it comes in different sizes. Fellow Superior Court judges often find each other’s decisions persuasive but they defer to each other much less than they do to judges of the Court of Appeal. A losing party can ask an appellate court to review the decision of the judge who first heard the case. An appellate decision in that case will enjoy greater deference from Superior Court judges when a similar case come before them. They will simply know that if they don’t defer, their decision will probably be overturned on appeal because a panel of appellate judges will probably decide similarly to the previous panel if the facts of the case are similar.
In criminal cases, this motivates the police to respect appellate court’s decisions in similar situations because the police would be wasting its resources by arresting people the courts will likely release. On the flip side, a crack-down decision even by a Superior Court’s judge will probably encourage the police to arrest more people in similar cases, even if to force the issue to an appellate court.
But one panel of the Court of Appeal cannot really force another panel to do anything. That creates a certain intrigue in our judiciary. In theory, even an appellate court’s decisions are not binding on lower courts because the next appellate panel can agree with a lower court’s judge going against the previous appellate panel. Rinse and repeat for the Supreme Court of Canada. Basically, the idea is that judges have a great amount of respect for each others’ decisions, and the respect grows exponentially with the level of the court making the decision, but no judge can really force another judge to do anything.
Yet this is a very simple, literal view of the judges’ power over each other. In reality, lower court judges pay so much deference to appellate court judges that higher court decisions are effectively binding on lower courts. Also, a more accurate way to see the hierarchy of judges is not through hard power but through learning, evolution, and respect. It is a soft power structure that binds lower courts judges rather predictably but still leaves room for revolutionary decisions defying existing norms.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
The purpose of blawgs
More than a year ago I wrote a post entitled “How lawyers think.” Its basic idea is that a lawyer’s job is to maximize legal protection of his client’s rights. Protecting rights means either of two things: one, letting the world know what your rights and their legal basis are, and, two, getting a court or tribunal to change the mind of someone who disagrees. Lawyers predict what kind of rights the courts will find that you have if it comes to litigation. That’s called giving legal advice, and that’s why lawyers think by imaging what would happen if this issue gets to court and how courts have decided similar issues in the past. All lawyers think about courts whether they are in litigation or not, and the courts is where the law becomes the law.
The previous sentence means that an act of Parliament is not really the law until the courts have adjudicated a dispute about what the specific legislative act or its provision means in a specific case. If all people understood the same text and applied it to the same facts the same way, we wouldn’t need courts. Lawyers predict what the courts will say the law is for the given facts, and litigators, in addition to that, offer judges their theories of what the law is in a given dispute. So advocacy in court is trying to influence the judge’s vision of what the law is and of how to apply it in this particular case. Without impartial and binding adjudication of disputes by the courts, the law is only what the strongest party (the police, the employer, the rich, and so on) says it is.
So if lawyering is predicting how the courts or tribunals will apply the law to a particular situation, blawging, in my opinion, is the same thing but by way of informal and accessible writing in a blog. A blawg should predict what the law is in some interesting case of current interest. A blawg is always a legal opinion, but it’s almost never legal advice, because it is addressed to a broad audience rather than a client. If I write about telephone number portability, the blog post should give a basic idea about what enforceable rights you will have if your telephone company decides to take your phone number from you. A blawg is not about what will happen, but rather about what you can reasonably accomplish by taking your case to a court or tribunal, if you have the time, the money, and the expertise.
In this sense, blawgs can be a little removed from reality because most people don’t have the time, the money, and the expertise to go to court. In fact, of those who do begin litigation, most never sustain it all the way to trial, which would be the first chance a judge will get to decide the case. That’s why lawyers, of course, must give practical advice in addition to pure legal advice, and it’s hard, and that’s why there is a disconnect between the public and lawyers. The client expects a solution and doesn’t care about the method, and the lawyer often must think in terms of courts because that’s all he or she may be qualified to do.
Perhaps blawgs can bridge this gap by educating the public about the law and teaching the public to self-regulate due to better knowledge of legal consequences. But unless we make access to the courts cheaper and easier so judges can hear and decide more cases that deserve to be heard and decided, blawgs alone will face an uphill struggle.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Weird Legal News: Collapsing Courthouses and the Constitutional Right to Rap
Here’s another digest of some articles I collected this week that are either funny, interesting, or just plain weird.
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Just two years after being constructed, a new courthouse in the Bronx is already falling apart. Stairwells are cordoned off, windows are boarded up, sewer flies are infesting the lower levels, and the parking garage is “sinking.” The project is now the subject of a “legal quagmire” of litigation. I wonder if the cases will be heard inside the building, or whether the judges would have to recuse themselves for being too self-interested in the outcome.
- Rapping Your McDonald’s Order Is Not A Crime – Consumerist
A teenager in Utah has been found not guilty of disorderly conduct after he rapped his order at a McDonald’s drivethru. The defence argued that “singing an order, whether profanity was used or not, is speech that is protected by both federal and Utah constitutions.” The judge reserved decision on whether local police should be making better use of their time. - Officer arrested for pulling motorists over, charged ‘roadside fee’ – Sun Sentinel
An enterprising Florida police officer was arrested for offering motorists the opportunity to pay traffic fines in cash… directly to him. Upon payment of the “roadside fee”, the cop would void the offender’s traffic ticket. He even escorted one motorist to an ATM so that the “roadside fee” could be paid forthwith. Amusingly, the Sheriff’s department is referring to motorists who paid as “victims,” even though they were in a better position than if they had simply pled guilty to the traffic offences and paid the legitimate fine — the “victims” received no demerit points and no insurance penalty.
How lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)
Battle Over A Bottle, Beer: A Serious Thing In Canada…Eh
First posted on Commercial Law International on Feb 18, 2009.
If you didn’t know already Canadians take their beer very seriously. And I don’t just mean on the consumption side.
Brewing in Canada is a very serious business indeed.
This is where the story of Dead Frog Brewery and Sleeman Breweries Ltd. comes in. It is a litigation story of David vs. Goliath, where David might just lose this time – it is a litigation story after all. It is a suit centered on the intellectual property.
The David in this story, Dead Frog, is a micro-brewery – oh sorry, craft brewery to use industry speak – from Aldergroove, British Columbia (B.C.). This pint sized – pun well intended – member of the industry is showing no signs of capitulating, if anything Dead Frog is showing signs that it is sporting for a fight.
The Goliath in this story, Sleeman, is an industry giant – though admittedly not the largest – from Guelph, Ontario. The keg sized – here again, well intended – is the one that initiated the suit and seems dead set on defending what it sees as its rights. And what is it all about?
It is a battle over a bottle.
The thing is both Dead Frog and Sleeman use clear glass bottles for their beers. However, Sleeman, the more established brewery, is well known for its clear glass bottles. Sleeman initiated suit last June in B.C. alleging that Dead Frog is illegally using its clear glass bottle design.
Dead Frog for its part has responded with a statement of defence and counterclaim and as far as it is concerned Sleeman does not have a monopoly on clear glass bottles. Moreover, the beer loving public is highly unlikely to get the two designs confused as the logos embossed on the bottles are very different – a dead frog vs. a beaver – also given the prominence of the Dead Frog name and slogan on its bottles there should be no confusion.
Now I wasn’t going to comment on the merits of the case but given the above differences and the images I saw at Great Canadian Pubs and Beer of the two bottles side by side, I think I need to. What is Sleeman doing? The embossed dead frog is in no way close to their beaver design.
Even if Sleeman had a strong case – which I don’t see how it does – litigation could be a poor business decision. As this case progress’s it will no doubt pick up more press and Sleemans could, even if it is in the right legally, be seen as a bully. Although beer drinkers are well known for their brand loyalty, they are also well know for their sense of beer justice and they could sentence Sleemans to a period of isolation. Why, oh why, in these tough economic times would any one want, or even provoke the potential, for such a thing?
I must admit that I have never tied Dead Frog, in fact I had never even heard of it until this suit but I am sure it is a fine brew. However, how else do you explain a 300% growth rate while only in its second year of operation. It must be a fine brew indeed – at least some beer drinkers think so. Sleeman on the other had I am fully acquainted and fully enjoy – honey brown.
This suit is a lose, lose, lose situation. Even if Sleeman wins on the legal merits it will lose by being labeled a bully. Even if Dead Frog wins on the legal merits it will lose – the price of defending the case will come at the expense of continuing its fantastic growth rates. And no matter whom the winner is the beer drinker will be the ultimate loser.
