Role of the Courts and Counsel In Justice
The Advocates' Society
R. Roy McMurtry
I should like to begin by congratulating the Advocates' Society for putting together this most interesting symposium. It appears to be an exceptionally comprehensive programme on advocacy and it serves to once again remind us all of the vital role played by the Advocates' Society in the administration of justice in Ontario.
It was suggested that I might reflect on the role of the courts and advocates in the future. However, when I reflect back on the 42 years that have elapsed since I was called to the Bar, I would have to admit that the many changes that have occurred since then would have been very difficult to predict in 1958.
The culture of advocacy has, of course, changed enormously during my legal career. When I was called to the Bar, the largest law firm in Ontario was about 25 or 30 lawyers. Women represented a tiny percentage of the profession and seldom appeared as advocates in a courtroom. Cultural minorities were largely unrepresented or under-represented in the profession. Fortunately, the under-representation of women as advocates has changed dramatically and visible minority advocates are growing in number.
In my early years at the Bar our profession did not possess the enormous talent that is a hallmark of the legal profession today. However, during those years there were fewer barriers to a timely and affordable resolution of civil disputes and access to competent legal counsel was more within the means of the average citizen.
Nevertheless, there are some fundamental aspects of the civil justice system that have changed very little. Indeed, it has been often stated that a lawyer from Dickens' time walking out of Bleak House into a modern Canadian court on any ordinary day would see relatively few changes. The same paper-driven process, the same delays, the same preoccupation with contentious procedure and very similar modes of calling evidence and presenting arguments. On the other hand, a doctor or scientist of the last century, who entered a faculty of his or her discipline today would be astounded and overwhelmed by the change.
Many here will be familiar with the words of Roscoe Pound’s famous 1906 speech to the American Bar association where the opening sentences were: “Dissatisfaction with the administration of justice is as old as law. Discontent has an ancient and unbroken pedigree.”
It is also interesting to note that the most important thing that Roscoe Pound felt needed change in 1906 was the civil justice system's exaggerated pre-occupation with contentious procedure. He stated:
“The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every turn ... The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law.”
The words of Roscoe Pound have, of course, as much relevance today as they did in 1906. They relate to concerns which motivated the creation of the Civil Justice Review by myself and the Attorney General a few years ago in Ontario, and the Systems of Civil Justice Initiative by the Canadian Bar Association.
The high cost of civil litigation is of great concern to judges across Canada and in that context, I am therefore pleased to note that George Adams will be addressing the issue of advocacy in mediation tomorrow.
The concept of mediation has become very important as a challenge to our traditionally held views: from the first day that most of us entered law school, we were taught that the way to resolve disputes is through the adversarial process. Cases were to be fought in court and to the victorious will go the spoils of battle. Too often, courts were viewed not as the last resort for resolving cases but as the only resort. We probably will be hearing more of this in a few moments when Professor Green addresses us on the subject of trial by battle.
Counsel have complained to me that since our system is based on the adversarial process, a lawyer involved in a court case who suggests settlement mediation, arbitration or alternative dispute resolution is often perceived by opposing counsel as having a weak case. Attitudes hopefully are changing and more counsel are realizing that suggesting an early resolution to a case is not a sign of weakness but often a sign of strength and in any event it is a process that is not necessarily about winning or losing but about serving the best interests of all litigants.
Another significant change in the advocacy culture has been the issue of the relationship between advocates and members of the media. I am therefore pleased that this issue will be discussed by David Scott and Lorne Honickman. The subject raises interesting issues related to the potential tensions between freedom of expression and the principle of fair trial. In a speech to the CBA, Eddie Greenspan described the growing phenomena of a "the race to the microphones."
While litigating through the media was traditionally regarded as unethical, the Law Society of Upper Canada has recognized that when the reputation of a client is attacked in pre-trial publicity there may well be a duty on the part of counsel to respond. However, while vigorous advocacy in the defence of a client is essential to our adversarial system, it should not be interpreted as a license for media propaganda campaign. Counsel who engage in these tactics simply misconceive the scope of their responsibilities. I think that it bears repeating that a lawyer is not his or her client's mouthpiece, press agent or apologist.
Lawyers are not solely professional advocates or "hired guns." And while they do not surrender their free speech rights upon admission to the Bar, they are also officers of the court with fundamental obligations to uphold the integrity of the judicial process, both inside and outside the courtroom. It is the duty of counsel to be faithful both to their client and to the administration of justice.
In its 1994 mission or role statement, the Law Society stated that the legal profession has a responsibility in the public interest to advance the cause of justice and the rule of law. However, the public is often skeptical about the role of lawyers and we are often reminded that we may never achieve a high standing in the public's affection. While the independence of the Bench and Bar means that we have to be prepared to be unpopular or controversial with the public from time to time, our independence does not absolve us from the responsibility of listening and being open to the possibility that some public criticisms are relevant. In his recently published book, getting away with murder - the Canadian justice system, Professor David Pacciocco of the University of Ottawa argues that the justice system is experiencing a credibility crisis largely because of a lack of public understanding. He also states that lawyers and judges have allowed the system to become incredibly complex and have not kept the public informed of its real strengths.
While the profession should never be intimidated by public criticism which does have a rather ancient pedigree, we do have a continuing responsibility to better educate the public in relation to the fundamental principles and objectives of the administrations of justice.
A commitment to continuing public education should include initiatives at all levels of the education system, speaking to community audiences and providing forums for constructive discussions with the media.
When I speak of the need for a greater commitment to public education and pro bono work, I know that many lawyers may say, at least to themselves: "What do judges really know about the economic pressures on the legal profession?” In her address to the benchers at their retreat last October, Justice Rosie Abella spoke of the worrying repercussions of the "Economic Darwinism at work in the legal profession" and the extent to which its impact was, in her words, inducing "a perception in the public that the profession had adopted many of the practices not of a profession but of a trade.” She went on to state that "When the public starts thinking of the practice of law as a trade like any other trade, it may well start asking itself why the practice of law should not be treated like a trade. Why for instance, if lawyers are going to behave like a trade, should they be self-governing? Or why is a lawyer needed at all if lawyering is simply a matter of skill and not professionalism?”
When we think about our professionalism, it is instructive for us to look back as well as to look forward. In particular, we should reflect more on what the great advocates of the recent past have represented and what we cannot ever afford to lose as a profession. Traditionally, integrity and civility have been the foundations of the justice system and the good reputation of an advocate is usually his or her most precious asset.
We should also never lose sight of the fact that the justice system is essentially a very human process involving the interaction of real people with real feelings. It involves an increasingly pluralistic citizenry with different cultures which produce different feelings. The process is fortunately more than simply compiling information, putting it into a machine and spewing out a decision.
In my view, the profession of advocacy may be the last bastion of real humanity in the practice of law. It is certainly the most human part of law given the need to react to how other people behave. We live in a world of gadgets, people pre-occupied with trying to keep up with machines. However, in my experience, the great advocates that i was privileged to know always had time for everyone in the court room. The clerks, court reporters and sheriff's officers were all part of the human drama with a respected role in the process. The behaviour of the great advocates was also characterized by civility to their colleagues and opposing counsel.
In my early years, I must admit that judges did not always demonstrate the same civility towards counsel. While I believe that rudeness is no longer a characteristic of our judiciary, it often appears to have been transferred to the relations between opposing counsel. While I recognize as my lawyer father used to say, that a lawsuit is not a tea party civility should be regarded as an important dimension of professionalism.
In his famous speech, the traditions of the Bar, Lord Denning listed what he thought was the hallmark of a great advocate. In particular, he emphasized fairness. The advocate must state the facts fairly. He must bring out points and alert the court to jurisprudence that he knows are against his case. He must turn over documents promptly and must never countenance dishonesty in any party.
When engaging in tactics that are questionable, Lord Denning stated that the advocate should reflect on the words of Lord Macaulay: "Whether it be right that a man should, with a wig on his head and a band round his neck, do for a guinea what, without those appendages, he would think wicked and infamous to do". Lord Denning also stated that: "Every member of the Bar knows how essential it is to be fair. The country demands it. The judges require it."
Lord Denning also emphasized the importance of the tradition of courtesy. While it is obvious that the advocate should be courteous to the judge, this should be extended to all involved in the litigation process. Lord Denning also commented: "Good policy itself commends this [course of action]. Many cases have been won by courtesy and lost by rudeness".
In his important work in Lawyers & Ethics, Gavin Mackenzie writes "Ultimately, unfair and discourteous behaviour impairs the ability of [advocates] to perform their function properly and the public interest demands that matters entrusted to lawyers be dealt with effectively and expeditiously". I would like to conclude by once again emphasizing the importance of public service in relation to the best traditions of advocacy. Justice Iacobucci, speaking to the B.C. fellows of the American college of trial lawyers, expressed the fear that the goal of profit-maximization is overtaking the goal of public service within the profession. He argued:
“[P]ublic service is central to professionalism. Public service means to be an active productive member of society in the fullest sense. It may include being active in education, in the religious life of one's community, or in arts and letters. To me public service means neither more nor less than constructive involvement in the broad spectrum of activities that enrich the life of our community.”
In a similar vein, Justice Gonthier, speaking to a Federation of Law Societies’ annual meeting work shop, noted that an undue emphasis on the bottom line leads law firms to demand that young lawyers bill an unreasonable number of hours - leaving these young lawyers exhausted, with no time for personal pursuits or family life. He worried that, "[F]aced with these demands, the idealistic and talented young person who has a commitment to public service might decide against becoming a wage slave, and choose another career altogether". You have a very interesting programme and I wish you all a stimulating and fulfilling two days and look forward to seeing you at the end of term dinner tomorrow evening.