It's just common sense
by Gordon Turriff, QC
Next summer we will have new rules in the Supreme Court. One of the linchpin rules effectively requires all participants to conduct all steps in court proceedings proportionately, which means that they must tailor the working out of the disputes to the complexity of the proceedings and to what is at stake.
Over the years I have flip-flopped about proportionality. For a time, I thought it was an evil concept because, if determined objectively, it might limit the choices available to parties and therefore leave their independent lawyers hamstrung in the advice that could be given. But now I think I’m a proportionality advocate because, really, proportionality is just a signal to litigants that they have to use common sense. Can having to act with common sense be fundamentally wrong? Surely it can’t be suggested that, as citizens, we have a right, constitutionally or otherwise, to use a scarce public resource however it pleases us, or that, as citizens, we have a right, no matter how inefficient we might be, to insist that government make the resource less scarce by finding tax dollar somewhere, and without imposing user fees.
I don’t mean to say that it is desirable to have proportionality at any cost. There will always be cases in which an economist’s sense of perfect efficiency will have to give way to higher values. There will always be cases with public interest dimensions; there will always be cases where rights have to be determined, in the circumstances, because only one of two positions can possibly prevail; and there will always be powerful litigants who must not be allowed to use their positions of power to obtain unfair advantage. Those cases may take time at court and the resources used to produce needed decisions might not be proportional to anything outsiders might use as a measure. But in the run of ordinary cases, most are going to be resolved most satisfactorily just with the application of common sense.
Now it is a truism — at least there is a very strongly held public perception — that litigants’ lawyers, not the litigants themselves, decide how cases should go forward. And this means, of course, when cases go forward stupidly, that it is the lawyers, not their clients, who are held accountable, sometimes on the front page of the newspaper. This is a perception balloon we need to burst. Some journalists demonstrate an especially acute inability to recognize that lawyers follow their clients’ instructions; these media people habitually fail to remind their readers that the clients make the decisions and that the clients might have decided not to follow their lawyers’ advice. I do not mean to suggest that there aren’t many cases in which clients don’t think independently about what should be done. But their lawyers, having explained the options and the risks, should be telling them that it is their call to make. In my own small way, I remind myself to try to show others that I’m only someone looking in from the outside, never saying “we” or “our” or “us” in relation to any aspect of a client’s case. It is always: “My client’s position is…” or “my client will accept…”; and I never identify my client’s opponent’s case with the opponent’s lawyer. So it is always: “Your client’s failure to…” etc.
As many people have come to learn, I am an inveterate fearer of government. So when I was reading 1984 again, just to be sure I hadn’t gotten things wrong, I saw in the introduction to the Everyman’s Library edition, Julian Symons’ neat assessment of George Orwell: “His commonsense could be devastating.” Ideally, all BC lawyers will always use common sense devastatingly. However, we know that it doesn’t always happen.
I’m not a psychologist, but I suspect that some people are by nature commonsensical; that others have the good luck to be taught its useful application; and that most of the rest of us come to recognize its value from the trial and error of experience.
What does common sense mean to the Law Society and the Benchers? Well, the society’s public interest mandate requires the Benchers to supply British Columbia’s communities with just enough lawyers who are capable of using common sense at least averagely well. This means that the society must be able to identify at least the innately commonsensical lawyers and to call on them as mentors, both within and without the PLTC, and it means that the Benchers must re-double their work of identifying the unaveragely commonsensical lawyers and of dealing with them as practice standards or discipline cases. I have often said that it only takes one member of any group of two lawyers and two litigants to increase the cost of the litigation, sometimes exponentially, and to make the lives of the other three miserable (there is no worse pairing than a lawyer with less than the optimal amount of common sense and a client acting in bad faith). We should all want to be sure that the two lawyer members of those groups of four are never the problem, and we should all want to be sure that lawyers do not help abusive litigants in the promotion of misguided campaigns. The assiduous application of common sense would go a considerable distance towards achieving these goals.
There must be many ways of driving home the importance and the value of a common sense approach to litigation and, indeed, to the common sense solution of clients’ problems generally. For myself, I always try to remember that the 12 or 15 possibilities my law school professors helped me to recognize for any given case should quickly be reduced to one or two (and often to none), and my experience has taught me that the one or two have to be tended very carefully. I also repeatedly remind myself that, as lawyers, we do not go to war, although many lawyers, including senior lawyers, sometimes describe it that way. Our work is not war. War and common sense are antithetical. We are puzzle-solvers, often having to display highly technical forensic skills. But it’s not our job to win no matter what. The best of us find the ways to apply common sense to solve the problems in our clients’ “anything can happen” lives. In Big Brother’s world, “[t]he heresy of heresies was common sense.” In our world, common sense is doubleplusgood.