Advice for self-represented litigants, Part 3: LSUC Bencher Joseph Groia “Lawyer-bullies prey on the weak and inexperienced”

Lawyers Gerry Ranking and Lorne Silver-private

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.

Was junior lawyer Sebastien Kwidzinski bullied?

Was junior lawyer Sebastien Kwidzinski bullied?

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

  1. 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.
  2. Never raise your voice. Speak in a normal tone no matter what the lawyer-bully does.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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?
  8. 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.

LSUC Bencher Joseph Groia

LSUC Bencher Joseph Groia

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.

Donald Best

5 comments

  • Dear Don, It is an outrage that we so easily give up our sovereignty to foreign governments and continue to allow our citizens to be denied the benefit of due process. We have NO functioning Constitution in our country-the Charter of Human rights is regarded as an afterthought, a side issue, not considered in court unless it is specifically mentioned and formally identified. In what country did this harrowing tale begin and why, pray tell, is there no warning from our government about the compromised safety of our citizen travellers when visiting such places?

    My own awareness of the criminal justice system came crashing into my life in the form of uniformed Calgary Police officers, responding to a possible domestic conflict concern from our neighbours. Scarcely an rules, laws, policy or procedure were followed as I was beaten unconscious then beaten more and more before being thrown into solitary confinement for 12 hours. No toilet, no water, freezing cold, no phone call, etc. It all seemed so routine.

    In the research I’ve done, the only source of this insane corruption I can see is the very founding of our country. Of course, it is different for us out west than it is for you in the east, but if you look at our history, you can see the wholesale subversion of the truth in getting to “confederation.” Perhaps there is something inherently wrong with the Westminsterian system of government we mimicked being so class-based and exclusionary. We have a new political party in Alberta that is requiring upward of $100,000 to be paid by contenders of the leadership race.
    The way we train lawyers and until recently only allowed those in the profession access to the legal libraries, the way careers are developed, having lawyers move between the Crown and private practice and the severe underfunding for anyone who doesn’t have money mean effectively, that there is no justice. And we see how those who challenge wrong-doing are treated, suffering untold additional harm as the culture of fabrication, name-calling and trickery are condoned. That judges are in on it,too makes the whole enterprise a big fat hopeless waste of resources.

    Who is responsible? I saw your story referenced in this morning’s Globe about the torture and illegal confinement of a rapidly-deteriorating prisoner. None of the orders from medical staff were followed and how on earth is it even possible that any sentence in any Canadian court can be arbitrarily turned into torture? I haven’t heard any judge sentence anyone to sensory deprivation and/or other forms of torture as part of their sentence, so this extra-judicial punishment is in itself illegal. The article says that Minister of Public Safety will look into it. My question is, where the h*** are all the Ministers of Justice while all of this is going on? Most all of these abuses fall into their portfolios including all the Commissions and tribunals that are associated with our Justice system. The Ministers, both our National minister and each provincial one, are responsible for all our interactions with the justice system and affect all our lives every day, yet they are SILENT. The Missing and Murdered Women’s inquiry? The Justice Minister is absent, passing on her responsibilities to other departments. We don’t hear premiers or the Prime Minister saying anything about judicial reform. We haven’t even named this problem and all the disparate organizations just keep floundering and getting ever more corrupt, ineffective, destructive and expensive without any leadership at all.

    There are so many of us, each trying to tackle our own little parts of this mass failure. Do you have ideas about how to galvanize all of us, get us together, demand
    leadership, call out those at the top for their utter and willful blindness? This has got to stop. How?

    I was in court recently listening to the testimony of a police officer in a brutality trial against a fellow officer. The defence attorney was confused about what he had heard and the judge agreed that he had changed his story. When the Crown intervened to clear up their confusion, did the judge apologize to this young officer for casting aspersions on his credibility? NO. They are above reproach (even at the summary level) and their bosses, our “Ministers of Justice” are equally culpable at allowing rampant injustice to continue.

    Blessings to you and thank you for your work

    Susan in Calgary

    • Thanks for your support, Susan.

      My own experience at being framed and jailed by corrupt lawyers and a corrupted justice system is that my story is just one of thousands – perhaps tens of thousands. Yes, we have to each fight our own battle for justice because each story has different circumstances, yet the very volume of similar stories is undeniable.

      Access to Justice and justice issues didn’t used to be on the radar of ordinary Canadians. That has changed. As Julie Macfarlane and her team at the University of Windsor law school recently noted – we’re a movement now.

      Good luck!

      Donald

  • Pingback: 9 Tips for dealing with an Abusive Lawyer: Advice for self-represented litigants, Part 4 | Donald Best.CA

  • Pingback: 9 Tips for dealing with an Abusive Lawyer: Advice for self-represented litigants, Part 4 | Donald Best.CA

  • Hello Mr.Best.

    Thanks for your comments on Adam Dodeks article and reproduced here. Your comments led me to your site, and I am grateful that I did. I did not expound on my previous experience as a self-represented litigant in my opening comment.

    In a civil action against my wife and I, we were bullied by not only the complainant, but by his counsel AND the presiding Supreme Court Justice. I had spent months in research and preparation. When it appeared that I would “fight back” against the complainant citing abuse of process, malice and vexatiousness, they changed to a chambers application for summary trial, ensuring that no testimony, other than affidavit could be submitted. The presiding judge sat like a sphynx and did not help me in the least bit as a self represented individual.

    In her decision she merely stated “even though the Osbornes are self represented, they come well prepared, and even submit their own application of summary judgement, however…….” That was the only positive comment. She then went on to find in favor of the complainant, issued a mandatory injunction and assign cost awards to the complainant.

    It was not until several months later did I realize I was “bullied” and railroaded. I also came to a realization that the complainant was a sociopath. Standing up to bullies is not easy, and often comes at a price.

    Thank you for your comments and your website. I am bookmarking it.
    R. Osborne
    British Columbia

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