Law’s big secret: the more important the law, the less it is settled

Not long ago, I heard a speech by Justice Ian Binnie, addressing the Toronto Lawyers Association, in which he recounted his experience on being appointed to the Supreme Court of Canada.  Being used to working in a world of judicial precedents, it was a rather unsettling experience to gain the perspective of the country’s top court.  All of a sudden, nothing was settled in the law.  Every case required a fresh look.

Prior to that evening, I had had the pleasure of dining with him at the Ontario Bar Association dinner where Tom Heintzman received his Award for Excellence in Civil Litigation.  I will not tell you what we spoke about, but he did reconsider a point of constitutional law about which we spoke and which he thought had been rather settled.

I cannot tell you that I have since viewed the law in the same way as Justice Binnie.  As counsel, we are on the bottom rung of the judicial system.  Our opinions count for little, and lower court judges and provincial appellate courts are still required to give stare decisis a wide berth.  What I can say is that, at some point in the second decade of my legal career, I realized that many areas of law are extremely unsettled.  Indeed, Canadian insurance law remains still in its infancy.  Many major points, such as the duties between primary and excess insurers, have not been well treated judicially.  Whether it is a belief that it is not as important as other areas of law, or the limited imagination or preparedness of counsel, hundreds of times more knowledge resources are available about the ins and outs of “police roadside breathalyser law” than about, say, design exclusions for policies insuring billion-dollar engineering projects.  There is little actual law on trial procedure, such as voir dires in civil matters, and often we must address cases from first principles.  Don’t ever let a mediator bully you into approaching a negotiation in a set way: there is no law there at all!

I used to think the American case law was much more developed, not only in commercial law but in public law.  The U.S. public law is less important to us in Canada because of our divergent constitutional history.  In commercial law, however, U.S. federal courts are obliged to track state courts, and any given point of contract or tort law may have several different approaches, each group of states or each circuit considering its case law “settled.”  The differences of opinion clearly mean the law is not settled.  The fact that U.S. courts and lawmakers have a different view of following the Supreme Court than ours, also complicates our appreciation of U.S. law.  Quite often, I turn to U.S. case law on a point that is not adequately addressed by Canadian decisions, and I end up feeling less convinced there is a right or wrong way to look at a particular set of facts.  American case law is in some ways most helpful because it shows the best legal minds differing on things that matter to the citizenry.

If an opposite, perhaps more senior counsel suggests to you that he or she knows the law on a particular topic, and it happens not to accord with your understanding, don’t just accept.  Your duty as an advocate for your client requires you to take pause and analyse the point for yourself.  If it is important enough, you can even ask for a pause during court argument, to check out the law being stated by your opponent to see whether it is still good law.  Or just to give you time to think whether the facts of your case are actually governed by a particular statement of law.  As a new lawyer, your freshness of perspective need not be a disadvantage, and often it is an asset.  It does not matter whether you are in court or sitting across the table consulting with a client.  An open mind is a lawyer’s biggest skill.  Keeping it open, case after case, is also the lawyer’s biggest challenge.

This does not mean one must go around like Miranda in Shakespeare’s The Tempest, thinking everything is a ‘brave new world.’  As a lawyer, your skill must allow you to treat each case as (1) exciting and novel or (2) as dull and settled, to suit your client’s interests.  What do you want to achieve for your client?  Manage risk?  Advance a public cause?  Keep a fact secret?  It all depends on your instructions, and your duties as a lawyer.

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