I've been a divorce lawyer for about 34 years. And in that time, I've been prone to navel-gazing about what it is I do, and how I can do it better. See - the great thing about being a lawyer, is it's always a growth experience - if you let it.
So - as part of that growth experience, I found a link on Twitter to a book, "Lawyer Forward", by Mike Whelan.. and I found it particularly interesting and rather inspiring actually. And it caused me to consider, in a more focused way, what it is that I do.
Beyond that, Mike answered a particular question that I hadn't really considered too deeply until today:
Why do my clients need a lawyer?
Odd question, 34 years into a practice, no? I guess the answer seemed relatively self-evident. I have a law degree. I "know" the law (by which I mean, I have a general understanding of the law, which is then supplemented by my ability to research to gain a more current and specific understanding of the law). Beyond that, I know about legal procedure - how the Rules of Court work, and how matters proceed from the issuance of a Statement of Claim, to trial, and then, occasionally to an appeal.
Isn't that it? My law degree and my capacity to understand the rules and regulations make me indispensable, no?
Well. Not necessarily. And here's the issue. It's why lawyers are failing to capture public trust and confidence and why more and more people are going to court on their own as self-represented litigants.
You see - the with the advent of "Google Law" - most people of average intelligence can do basic research and then from there, with the assistance of a system which is slowly becoming more "user friendly", they can find their way into court and on to trial.
So. They don't need lawyers, do they?
Or do they?
And do lawyers understand what it is that our client's need? I'm not sure I understood it after 34 years of family law practice, until I picked up Mike's book (highly recommended btw for any lawyer who is sick of "the same old, same old" and wants to be a better and happier lawyer.)
Here's the thing that Whelan points out (among other great insights) - what a good lawyer... what an "expert" lawyer provides is this:
a) Experience - not just years behind a desk, not just some generic experience of running on the legal hamster wheel of legal practice, but experience in paying focused attention to a specific area of practice - in my case, family law;
b) Recognition of Patterns - if you're paying attention - to your clients, to the other party, to other lawyers, and to judges, you start to see "patterns" - things that aren't written down in a book or a statute anywhere. Things that they don't and really can't teach in Law School, or anywhere. Over time, you begin to see how people, lawyers and judges react when certain things happen... when someone cries in court, when someone doesn't pay their child support, when someone lies in an affidavit, when someone quits a job for a good reason or a bad reason.... when someone has their heart broken by someone they used to trust...;
c) The Ability to Convert Experience and Recognition of Patters to Solid Advice and Legal Work - which isn't always in a courtroom - most often it's in their office, explaining to a client how the pain and anguish they're feeling may prevent them from making their best decisions so urging them to obtain counseling before they make decisions on how they wish to proceed. Or it's on the phone with the other lawyer, knowing that asserting your position is more likely to be reasonably considered if you are both polite and measured in your language. Or it's in a courtroom where you have learned how to tell your client's story in a manner which may resonate best before the judge.
You can't get that in a law book, and while I'm here explaining it online, you really can't get that online with a Google Search. You can get a flavor of it, perhaps. You can get some sense of it. But the value of having someone who has watched things happen - who more importantly - has "paid attention" to those things, is the real value of a decent lawyer. That is what you're paying for. And, if a lawyer is good at what they do, and can apply those patterns, quite often they can actually save you money - by facilitating settlement BEFORE litigation occurs.
So - there it is. And if you're a lawyer, time to start paying attention. Grinding out work ("Churning" Whelan calls it) over many years, really doesn't make you a good lawyer. it's about understanding, in a fundamental way, what's happening in and around you. It's about being curious. It's about always growing. It makes life interesting, and makes us better lawyers.
It gives us "value" beyond a law degree.
Brian Greenspan has recently published an article, being rather critical of our former Federal Justice Minister, “Did Jody Wilson-Raybould understand her role as attorney-general?”
In his article, he suggests, rather strongly, that the concerns raised by Ms. Wilson-Raybould, and her supporters, reflect a “fundamental misunderstanding of the responsibilities of key participants in our justice system.” In his article he writes that to question the appropriateness of outside influences on prosecutorial discretion exhibits a serious misunderstanding about how “justice” works.
Perhaps. Or, perhaps Mr. Greenspan’s article is a bit of “mansplaining” to coin a phrase.
To be sure, Mr. Greenspan is a criminal lawyer par-excellence – and to suggest that I - or anyone in Canada perhaps – would have a better understanding of the criminal justice system than Brian Greenspan would be questionable.
I would be so bold, as someone who is only a family lawyer, to suggest he has perhaps glossed over the issue a bit. And, in my opinion, as a lawyer who has spent some time working to improve access to justice and fairness in our legal system, the larger truth is too important to ignore or dismiss.
And this is the thing about that.
Mr. Greenspan is completely correct. Prosecutors cannot live in a bubble, devoid of contact or influence by the world around them – including very direct influence by the actors involved. As Mr. Greenspan writes, “isolation breeds tyranny” and advocacy – the testing of the Crown regarding their perspective on a prosecution - is healthy and fundamentally important to assure full consideration by the Crown of all factors to be considered as they engage their duties.
But. And here’s the big “but”.
When our jails are populated by people without the means to hire someone like Brian Greenspan to assure that the Crown is challenged appropriately – particularly for example, by indigenous people in grossly disproportionate numbers - there is a fundamental concern about the efficacy of the Rule of Law. About the reality of the theory that “all people are equal before the law.”
And it’s a growing and legitimate concern that Mr. Greenspan, with all respect, ignores completely.
It might be reasonable to ask yourself, for example, what are the odds than an impoverished indigenous person charged with a criminal offense in this country would have the pull to cause the Prime Minister himself lean on the Minister of Justice to, in turn, to lean on the prosecution to “cut him a break.”
Or, to use Mr. Greenspan’s example, what are the odds that that same individual might be able to hire Brian Greenspan himself to meet with the Attorney general to consider his case?
Zero to none are those odds.
And, perhaps, Ms. Wilson-Raybould – being a woman and an indigenous person – was somewhat sensitive to this reality.
So. It might do for some old white guys in our profession like Mr. Greenspan and myself to consider that perspective with a little more charity.
With the greatest of respect to Mr. Greenspan, he ignores, completely the growing sense of frustration of many Canadians that there often appears to be two sets of laws in this Country – one for people with deep pockets or friends in high places (usually both), and one for everyone else.
Did Prime Minister Trudeau “lean” on Ms. Wilson-Raybould, or did he simply provide “perspective”? Who knows?
But the questions raised in this case are legitimate and undeniable.
Or maybe, like our former Attorney General, I just don’t understand.
This Monday I'm opening up a new law office - Harvie denBok Pollock - along with new partners Allan denBok and Tyler Pollock. This will be my fourth "home" in 33 years. After starting my career with then Paterson North (now North and Company), I opened a humble little two man office six years into my practice with Parry McDonald - McDonald Harvie - and over time, grew to McDonald Harvie MacLennan, then Andreachuk Harvie MacLennan, then Andreachuk Harvie MacLennan Maxwell... until we merged with Huckvale and Company... becoming Huckvale Wilde Harvie MacLennan, then Huckvale LLP.
And it was a good run. No complaints, really. Obviously, like any marriage, you have your spats - but my former partners and our staff were good to work with, and were gracious in my departure. In fact, they are treating my wife and I to dinner on Monday night. Classy.
So - then starts my next journey, my next adventure, running a new office with two go-getter young lawyers.. and as we await our opening Monday morning, we're adapting to new accounting (Cosmolex.. good-bye PCLaw and good riddance), a new system in the "cloud".. all of which I'm sure will break down and cause headaches Monday. But this is the stuff of new business.
What pleases me, and gives me comfort through these stressful changes is knowing that in a few weeks, I'll be attending Lake Louise to chair a pre-conference panel on "How to Practice Family Law and Not Go Crazy"! If you've never been, I would highly recommend it... a more beautiful location to kick back and share some thoughts about retaining sanity in Family Law would be hard to imagine.
So there's that. If you're a lawyer, and haven't yet signed up, please do - basically we have a very special group of people who are going to shift gears away from the usual "this is the law" sort of thing, to a more macro look at how family lawyers (and lawyers generally) can reduce stress and trauma in a challenging area of law. Hope to see you there!
Bill C-78 Amendments to the Divorce Act – and My Appearance Before the Justice Parliamentary Committee
Having appeared before a Parliamentary Committee yesterday in Ottawa, it remains to be seen whether Bill C-78 will proceed as drafted, or whether changes will be made prior to it’s passage.
Joining me yesterday were Professor Nicholas Bala, from Queen’s University Law School, Julie I. Guindon – a Family Lawyer from Ottawa, and Laurie Pawlitza – also a family lawyer and former Treasurer (President) with the Law Society of Ontario.
The general discussion regarding the Act was more consistent than I would have expected – while no one (including myself) referred to the proposed legislation as “Re-arranging the Deck Chairs on the Titanic” (see my article with Lawyers Daily here), there seemed to be a common agreement that while many of the amendments were “helpful”, they were not going to “fix” family law to any great extent. Even the most positive proponent on the panel, Nicholas Bala, conceded that family law would remain difficult and expensive to process – though with the exception of my own commentary, there was no suggestion of a complete overhaul of the Divorce process.
Thus – my own convictions appear to be confirmed – that while Bill C-78 appears to provide some elements of benefit to those suffering through Divorce in Canada, it is hardly the “major improvement” that many suggested when word of the bill first became public.
My own most critical elements were set out in a brief submitted prior the hearing which can be read here.
Essentially, my biggest criticisms:
a) The presumptions relating to parental relocation are not helpful, and if passed, will lead to Judges becoming biased in favor of a move regarding a parent with primary care of a child, or against a move in a case of shared parenting – distracting the Court of considering all factors fully in favor of simply moving quickly to the presumption. While that may result in an appropriate resolution for MOST children – as referenced in the current leading case of Gordon v. Goertz, the court is not tasked with taking an approach to help most children – it is tasked with taking an approach which helps the one specific child they are dealing with in each specific case;
b) The specific inclusion of an obligation of take into account the views and wishes of children,without making any provision for an adequate process to assure those wishes are obtained in a sensitive fashion is likely to result in added harm to children who will be put not he spot by poorly considered approaches of parents, lawyers and judges who will often lack sufficient skill to not put a child on the spot to “pick who they love most”;
c) Efforts to encourage other family dispute resolution mechanisms – other than the court – are unlikely to make any difference where they remain optional and without consequence where parties and their lawyers ignore their obligations to at least consider such efforts;
d) Finally – the lack of support to assist parties in dispute in working on emotional trauma relating to their divorce will likely maintain the largely irrational approach to family law resolution which so typifies family law.
There was an interesting question from Iqra Khalid, Member of Parliament for Mississauga—Erin Mills – as to whether I thought alternate dispute resolution mechanisms should be mandatory in cases of domestic violence or abuse. My comment – there are only two courses of resolution for a victim abuse where lawyer/lawyer settlement is unsuccessful – trial, or some form of mediation. I suggested quite pointedly that with appropriate safety measures, mediation efforts are much less likely to leave the victim of abuse in a court room, facing her abuser, with a lawyer likely subjecting the victim to further “abuse” through cross-examination in what is often a brutal trial process.
So – with some modest re-arranging of the deck chairs, the Titanic of the divorce litigation process will continue on, it appears. At least for the time being.