Many years ago, I agreed to act for an elder of the Celestial Church of Christ, a religious order based in Nigeria. A member of his congregation had asked him to be a “character reference” on a bank loan. It turned out to be a guarantee on a sub-prime mortgage. To make a long story short, my client ended up on the hook for an amount equivalent to twice his annual gross family income, and he had an aggressive creditor after the mortgage company sold the debt on. By the time he arrived in my office, the congregant had defaulted, the mortgaged property sold at a deficit, and my client’s own family home was in jeopardy.
After hours combing through the paper, I did notice that the plaintiff’s list of productions did not include a notice of assignment of the debt. I asked for it. I received the response from the plaintiff’s lawyer that there was no such document. That was the divine intervention, my Deus ex machina.
Eventually I settled the case for zero liability, based on a plea that the assignment was void for lack of notice under s. 53 of the Conveyancing and Law of Property Act, meaning the assignee had no rights against the guarantor. The transaction could not be redone to cure the irregularity, because the assignee did not afford my client an opportunity to take part in the sale that left the deficit. As a technical defence, it was very strong. But courts are also skeptical about technical defences. I persuaded the lawyer for the new creditor that his client should really have been targeting the assignor. I advised counsel for the plaintiff that I could agree to a dismissal without costs, because I was acting for the defendant pro bono.
When I closed the file, I met with my client. His demeanor suggested he had no idea how much effort went into reviewing the case and the law, in order to come up with the technical defence and save his family from losing their home. What I mistook for lack of gratitude, as I quickly found, was in fact greater than gratitude: it was his faith in me as his lawyer that was never in doubt.
“You have been very serene about the law suit,” I said to him. “You have no idea how difficult the defence was to carry off.”
“I never doubted this would be the way it would end,” was his answer. You know how that is. A stack of memos in my file confirming my advice to him that his defence was not going to be easy; and yet he ignored all the warnings. “I always knew God would provide,” he concluded.
“I’m not sure God had much to do with it,” I replied.
“That is where you’re wrong, Mr. Akazaki,” he insisted. “God provided you.”
The reason for my recollection of this conversation with my client – an exchange I will never forget – was a podcast I listened to during a recent morning run, about Russel, Wittgenstein and Valéry, about the logic of belief. One of the strategies behind faith is to off-load the burden of doubt on non-believers. In this regard, believers have already won Pascal’s wager here on Earth.
Any hard-nosed civil litigator, trained to manage doubt, can be humbled by a client driven by this level of religious certainty. Law is a skeptical discipline, and our conservative empiricism is an acquired skill. We have even finally rid ourselves of res ipsa loquitur, at least in the Supreme Court of Canada and most lower courts: Fontaine v. British Columbia (Official Administrator), at paras. 26-27, one of the last vestiges of Aristotelian mind over matter. My client from the Celestial Church was an extreme example of a morality play that takes place every day in lawyers’ offices across Canada. Despite the low regard many members of the public have for lawyers, clients, in overwhelming numbers, regard their lawyers very highly. In some part, this high regard is an act of faith. This can be a burden, because in any litigious matter the other lawyer can very well help the adversary to gain the upper hand. Most crusades have the might of right on each side – the faith of at least one of them must be wrong.
Is belief in law logical? Yes, but not very. The force that belief has in determining the course and outcome of a legal brief should, however, never be discounted.