Advice for self-represented litigants, Part 3: LSUC Bencher Joseph Groia “Lawyer-bullies prey on the weak and inexperienced”
Lawyers Gerald Ranking (left) & Lorne Silver. Strategies for cross-examination of self-represented litigant included screaming, yelling foul words and throwing objects at the witness. (as indicated in transcripts of cross-examination with the Judge not present. The lawyers later apologized to the court, but not to the self-represented litigant.)
The Legal Profession’s culture of bullying
Law Society of Upper Canada bencher Joseph Groia and BC lawyer Gerry Laarakker are two of the high profile people weighing in with comments on law professor Adam Dodek’s excellent article: Ending Bullying in the Legal Profession.
In January 2012, the Law Society of British Columbia found Laarakker guilty of misconduct for not being polite to a bullying Ontario lawyer. Laarakker had to pay $4,500 in fines and costs. The Ontario lawyer-bully walked free because the legal profession has a culture of bullying that law societies tolerate and even support through attacks on lawyers who stand against the practice.
According to lawyer Katarina Germani of Clyde & Co. LLP in Toronto, “(lawyer-bully) behaviour is so often normalized by the profession.”
And as Chris Budgell comments, bullying by lawyers is a problem in the courts, not just within law firms.
Self-represented litigants need to be aware of lawyer-bullies
There is a sometimes difficult to define line between a lawyer diligently representing their client – and engaging in bullying. Although there are contrary opinions I’m sure, I believe that most judges and most lawyers dealing with self-represented litigants try to be fair – if for no other reason than to avoid appeals and complaints.
But, as LSUC bencher Joseph Groia points out, some lawyers are bullies who attempt to prey on the weak and inexperienced. That description certainly includes self-represented litigants.
In my own case, during a January 2013, cross-examination where the judge was not present, senior counsel Lorne S. Silver of Cassels Brock & Blackwell yelled, screamed foul language at the top of his voice and threw objects at me. All this is supported in the transcripts. Co-counsel Gerald Ranking of Fasken Martineau DuMoulin LLP later apologized to the court (but not to me), for the disgusting behaviour, of which Mr. Ranking played his own part during the same cross-examination.
Their bullying during two days of cross-examination would never have happened had I not been a self-represented litigant, without a judge present. At the beginning of the cross-examination, Ranking and Silver refused their permission for me to record the proceeding either with video or audio equipment. I believe that they didn’t want that powerful record available later, as their strategy was to bully me so outrageously that I would leave the cross-examination and so incur the wrath of the judge. (I stayed, and took two solid days of abuse and bullying.)
And that is the key to lawyer-bullies; they bully as a strategy and as a technique to intimidate and shut down the opposition, and to shut down opposition to the bullying itself. I doubt that Mr. Ranking or Mr. Silver walk around their homes yelling “BULLSHIT!” at the top of their voices, slam their fists down on the dinner table or angrilly throw objects at family members. Bullying is a strategy that they use in their profession.
Considering their bullying behaviour during my cross-examination, I have to wonder what role the legal profession’s culture of bullying played on November 17, 2009 when Mr. Ranking’s articling junior, Sebastien Kwidzinski, remained silent after witnessing Mr. Ranking and Mr. Silver fabricate evidence, lie to me and lie to the court. (See The Sebastien Kwidzinski story.)
Self-represented litigants need to be aware and to have strategies and techniques ready to deal with lawyer-bullies in and out of the courtroom.
8 Tips for dealing with Lawyer-Bullies
- Always remain calm. Lawyer-bullies try to provoke self-represented litigants into inappropriate behaviour and into making inappropriate statements both in and out of the courtroom, on the record and off. Don’t be driven by emotion; the lawyer-bullies aren’t, no matter how angry or threatening they sound. As Michael Corleone says, “It’s not personal. It’s strictly business.” Know their game and be prepared.
- Never raise your voice. Speak in a normal tone no matter what the lawyer-bully does.
- Watch your body language. When aggressively confronted, keep your hands still on the table or, if standing, at your side or clasped behind your back. If appropriate and necessary, back away slowly. Let your body language show everyone exactly who is the aggressor.
- Be very wary of speaking to opposing lawyers off the record in the hallway, by telephone or anywhere. Ask that any communication be in writing so there will be no misunderstanding.
- Answer all received communications as soon as possible, and especially so if there is any inaccuracy or misrepresentation. If you receive an inaccurate fax, letter or email, immediately answer in writing with your position and supporting facts. Unanswered inaccurate letters from the other side can become ‘exhibits’ and ‘evidence’ against you faster than you can imagine. Lawyer-bullies deliberately write inaccurate and misrepresenting letters to self-represented litigants with the intention of placing the communications before the court as ‘evidence’ in the future.
- Immediately document your off-the-record conversations with opposing lawyers. Unintentional misunderstandings can happen. Write things down immediately. Have a witness with you if possible. Have your witness read and sign your notes in agreement. Some lawyer-bullies will lie to the court or misrepresent what you said or ‘agreed to’. Your personal notes, or better, letters to the opposing lawyers saying “As we agree to this morning…” Put the truth into the communication record in a timely manner and without fail.
- Secretly Record your conversations with opposing lawyers. ONLY where and when the law permits it, secretly record your conversations with opposing lawyers. Digital voice recordings are your best friend. When permitted in law, turn on the recorder, put it in your pocket and leave it on anytime you will be interacting with opposing lawyers. Today’s technology is cheap, small and will continuously record for the entire day. Why not have a reliable and independent witness with you anytime the law says you can?
- Put it on the court record. Whether being cross-examined in court or in a boardroom, if a lawyer bullies you in a manner that will not be evident on the written transcript, comment on that specific behaviour to put it on the record. “Sir. Please do not throw books at me.” “Sir, please do not shout at me.” “Please do not slam your fist into the table.” “Sir, your face is only 6 inches from mine. Please respect my personal space.” “Sir, Please calm down and do not use such language. I am intimidated by your anger.”
Joseph Groia gets it. Here’s what he said on Adam Dodek’s excellent article: Ending Bullying in the Legal Profession.
Thanks Adam; let me add a few personal and hopefully helpful comments.
I firmly believe that the damage to the profession that has been caused by civility prosecutions in cases like mine is badly under-estimated . No one really opposes the encouragement of civil behaviour ; but unlike bullying [which we see far too often in practice] , incivility is often found only in the eye of the beholder . When it becomes the subject of a prosecution it has a chilling effect on how all lawyers do their job.
Bullies prey on those who are seen by them to be weaker or inexperienced . Allegations of incivilty however are usually the opposite ; most often they are levelled by those in power against outliers [especially defence lawyers ] who stand up and challenge another lawyer who may be abusing his or her more powerful position . As you rightly point out, standing up to a lawyer-bully resulted in Mr Laarakker being convicted of misconduct . The other lawyer appears to have avoided public discipline . What do these value judgments say to the public about our core values as lawyers ? How can they possibly help restore public confidence in the legal profession ?
We should never forget that Martin Luther King was harshly criticised by those in authority for allegedly being uncivil in the early days of the Civil Rights movement . We are all still grateful for his “uncivil” conduct in pursuit of a greater public good .
And here is my comment made after Mr. Groia’s…
As Mr. Budgell relates, bullying of lawyers by lawyers is a problem not only in the office, but also because it spills over into court and into the dynamics of individual legal cases. In this sense, bullying within law firms is only a symptom (or expected manifestation) of a larger culture of bullying within the legal profession – by lawyers and former lawyers (now called ‘judges’).
And then there is the dark side of the ‘win at any cost’ culture that seems to be on the rise, especially within larger law firms. The bullying mentality plays a large role in that behaviour. How far have things gone when personnel from large law firms get caught fabricating evidence, lying to judges and using the office computer network to send anonymous threats to opposing witnesses?
Not to mention the cover-ups by a Law Society of Upper Canada that, as with Mr. Groia’s case, seems to have lots of energy and resources for the selective prosecution of lawyers from smaller firms: but pays so much deference to large law firms that those monsters are virtually laws unto themselves within the legal profession.
The suprising recent elections of Joe Groia, Rocco Galati and a few other outsiders as benchers was in part a healthy message to the legal establishment that large numbers within the profession believe ‘more of the same’ isn’t working.
As a non-lawyer and former police detective who has decided to take an interest in misconduct, integrity and governance issues in the legal profession, I’m less than impressed with the gap between what the legal profession and the lawyers’ unions say – and what they actually do and don’t do.
Bullying is only a symptom of a much larger problem within the culture of the legal profession.
The legal profession needs to return to its foundations of Integrity, Honour, Accountablity and Rule of Law, and it needs to do that soon.