Chief judge troubled by trend

Terry Roberts
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Fears high costs deter people from civil, Appeals Courts

The top judge in this province say he's concerned about the number of people coming to court without a lawyer.

He also suspects legitimate cases are being dropped or settled at the civil and Appeals Court level because it's just too costly - and risky - to proceed to trial.

The top judge in this province say he's concerned about the number of people coming to court without a lawyer.

He also suspects legitimate cases are being dropped or settled at the civil and Appeals Court level because it's just too costly - and risky - to proceed to trial.

Derek Green, chief justice of the Newfoundland and Labrador Supreme Court (Court of Appeal), expressed his concerns during a speech Thursday to the Rotary Club of St. John's.

In a perfect world, he said, every person would be entitled to have any legitimate claim vindicated - no matter how small - and would not be deterred from doing so by crippling costs. While he acknowledges that a perfect system is impossible, he wonders if a whole group of people is being priced out of the system, and whether the courts are operating below a minimally acceptable level.

"I'm not saying we're at that point yet, but we all ought to be concerned about it," he said.

Green was appointed chief justice last March, taking over from Clyde K. Wells, former premier of the province.

In his 40-minute speech to the Rotarians, Green talked about the evolution of the courts in this province and the role of a judge.

At one point he quipped he wouldn't be turning off his cellphone, since his daughter was in labour and he was waiting for a call.

But it was his blunt assessment of the court system which caught everybody's attention.

Green has examined the nature of the cases being filed in the Court of Appeal, and said most appellants are corporations, financial institutions, unions, government and agencies.

In cases where individuals were seeking appeals, Green said, roughly half of them were not represented by a lawyer.

Most of the remainder were family-related matters, involved contingency claims, or had an insurance company in the background.

Green said measures are being implemented to expedite court matters and reduce costs, but there's only so far the courts can go.

He wants a dialogue between the courts, the bar association and the provincial government to discuss his concerns.

"We need to look at this in a holistic way to decide what, if anything, we can do to reduce the cost of litigation, because it is very important that people, if they have a legitimate claim, they should be able to get into court. And it's wrong that they should be deterred simply by the cost associated with it," he said.

By the time a case reaches the Court of Appeal, the issues are often refined and technical, and a person without a lawyer can run into problems.

But lawyers are not cheap, and the tab can run into the thousands before the matter even gets into court.

For small claims, legal fees can often exceed the claim.

And litigants also run the risk of having to pay the costs of the other side if they lose, which is another deterrent, Green said.

In the 1990s, Green said it was rare to see someone come into the Court of Appeal without a lawyer. Things have certainly changed.

"I have to say, I was taken aback on one of my first appearances on an applications day in the Court of Appeal to note that 50 per cent of all the cases called had at least one party unrepresented by counsel," he said.

"This is a very concerning trend. It begs the question, are the civil trial and appellate courts only available to individuals who are wealthy, or who qualify for legal aid? Or are there other factors at play?"

troberts@thetelegram.com

Organizations: Newfoundland and Labrador Supreme Court, Rotary Club

Geographic location: St. John's

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Recent comments

  • Dave
    July 02, 2010 - 13:26

    Part of the problem lies in the procedures of the courts. Takes way too long to bring a matter to trial. Then judges can take years to make a decision. There needs to be a simpler procedure for claims which exceed Small Claims Court, but are still not that large. This would provide greater access as costs would not be prohibitive.

  • Bill
    July 02, 2010 - 13:26

    Jim from NL is spot on, and I lived the same experience in Family Court, begged for settement, and it cost a fortune, all the while Green was head over the family Court system. I wrote him and told him about it and he did nothing.

    He was talking about accessibility then and pretending to care, but never done anything. I suspect this is just talk as well.

  • The power of suggestion
    July 02, 2010 - 13:25

    The law is not attainable to mere mortals. Its evolved into crap on paper that allows people to hide behind it and doesn't do justice to the people that seek it. A lawyer is a crooks last chance.
    Its our right and previlages thats developed with a price tag. Because, lets face it, you don't have to be right, you just have to convince someone else you are. Its the power of suggestion working at its best along with the reassurance that they'll be ok and they'll be able to live with their own decision. The only thing to take from this expensive, dragged out system is that being smart, still doesn't make you right...but it sure makes you rich.

  • C
    July 02, 2010 - 13:19

    Assessing the cases at Appeals Court?

    Try the good old regular Supreme Court where the defendant, charged with serious Federal charges shows up for trial without a lawyer!!

    I don't know the circumstances of the accused but this person, by not having counsel has caused costs to the both the judicial system, police and civilian witnesses in the matter, only to have this potentially happen again in another couple of months.

    I know that the wheel of Justice is slow and I THINK that defendants have the right to choice of counsel, but they should NOT be allowed to appear in Court without counsel, especially when they are expected to be on trial.

    If defendants are not allowed to appear without counsel in their initial case, maybe it will curb the need for appearing in the Court of Appeals.

  • George
    July 02, 2010 - 13:18

    The lawyers and judges are all part of the same clique. If you don't pay for a lawyer than the judge will see that you pay the piper.

  • Been there..
    July 02, 2010 - 13:16

    Don't get me started! As a spouse of someone who has repeatedly had to go to court trying to SEE his kids,there is much more wrong with the court and lawyer system here in Canada. Thousands have to be spent to file a document, then the lawyers of each party play games sending affadavits back in forth, and finally when you get to court the first day, one party decides not to even show!-Not even the laywer in our case, after we flew across the country for a court date! The judge let that go, so the following week only the laywer showed, and 'needed' more time because it was inconvenient for the client.-Come on! The judge should have slapped a contempt charge on both the cleint and the lawyers butt! If the judges would call a spade a spade, and not let the lawyers play these games to extract more money out of clients, maybe people would choose to be represented in court. I personally ended up representing my husband in a full day trial against a lawyer from AB,and got what was needed to see his child! But, only after months to get there and a few thousand dollars before we realized the lawyer didn't care about us or the child. They don't care about anything other than their career, and their pocketbook. Judge's need to quit the stalling in their courtrooms, and start charging people who are BS-ing their way through the system. Judges should be taking responsibility for letting the lawyers and clients get away with wasting the courts time-especially when (in our case) it is parent alientation...but that's another issue on it's own within Canada that should be addressed seperately by Judges. Don't get me started..but somebody needs to!

  • Peter
    July 02, 2010 - 13:16

    Derek Green, you hit the nail right on the head. The system is certainly flawed and lopsided towards corporate entities and wealth but if the costs weren't an issue than every joe would be bringing every tom to court out of spite and the system would be clogged. A solution is not going to work itself out and this issue needs to be addressed, discussed and rectified.

  • Mike
    July 02, 2010 - 13:14

    Regular people cannot afford a lawyer.

  • (another)Peter
    July 02, 2010 - 13:14

    Good lawyers are worth their weight in gold. Others just seem to turn on the meter.

    For example, when one meets with a lawyer it ought to be just that - a meeting - c/w agenda with minutes kept. Law firms will bill almost everytime they pick up the phone.

    People only want closure from a court, these days they're lucky to get convergence.

    One appeals the Judgement of the lower Court, not ridiculous technical errors, such as,(my experience) forms signed in blank, lawyer accidentally witnessing his own signature, obviously false clauses accidentially copied from one affidavit to another, ignoring the grounds of a Caveat entirely etc....

    If you are forced to spend the entire war chest in phase one, what is left in phase two?

    No big reforms, just a little discipline?

  • J
    July 02, 2010 - 13:11

    I agree with George.

    Lawyers and Judges are in a clique. As far as I am concerned anything that Green says is worthless. Nothing will change within the system. Lawyers are free to charge whatever the market will bear.

    What and see though. Wouldn't surprise me if they pass a law that requires one to pay a lawyer to represent them no matter what.

    Kinda like having to pay for Barry Obama's healthcare insurance whether you like it or not.

    Yes, you read that correctly. American's will not be able to opt out of BHO's healthcare plan as it stands now.

  • Jim
    July 02, 2010 - 13:09

    Interesting observation from Chief Justis Green of, who can afford legal representation. I can relate, from my own experience, I spent eight years in the legal system, no crime was committed and it cost me 58% of my life savings. So much for my children's education. Even the judge presiding over the case said the only one benefiting from this was the lawyers. I pleaded and basically beg to settle the matter.
    There may be future options. I have heard that we as a society are approximately 25 years away from achieving artificial intelligence (AI). If this (AI) becomes an option of representation within the legal system, and is proven timely and cost efficient, from a consumers perspective I would choose the artificial representation.
    My Father once said to me, give some of ye enough rope and you'll hang yourselves every time.

  • Taxpayer
    July 02, 2010 - 13:09

    Right CH let's change things so that you are guilty until proven innocent. That's the Conservative platform isn't it.

  • Neil
    July 02, 2010 - 13:08

    A lawyer should get paid based on their job. If they do an adequate job, they should get paid in line with their successes....Decided by an impartial board of course....

  • Dave
    July 01, 2010 - 20:13

    Part of the problem lies in the procedures of the courts. Takes way too long to bring a matter to trial. Then judges can take years to make a decision. There needs to be a simpler procedure for claims which exceed Small Claims Court, but are still not that large. This would provide greater access as costs would not be prohibitive.

  • Bill
    July 01, 2010 - 20:13

    Jim from NL is spot on, and I lived the same experience in Family Court, begged for settement, and it cost a fortune, all the while Green was head over the family Court system. I wrote him and told him about it and he did nothing.

    He was talking about accessibility then and pretending to care, but never done anything. I suspect this is just talk as well.

  • The power of suggestion
    July 01, 2010 - 20:12

    The law is not attainable to mere mortals. Its evolved into crap on paper that allows people to hide behind it and doesn't do justice to the people that seek it. A lawyer is a crooks last chance.
    Its our right and previlages thats developed with a price tag. Because, lets face it, you don't have to be right, you just have to convince someone else you are. Its the power of suggestion working at its best along with the reassurance that they'll be ok and they'll be able to live with their own decision. The only thing to take from this expensive, dragged out system is that being smart, still doesn't make you right...but it sure makes you rich.

  • C
    July 01, 2010 - 20:01

    Assessing the cases at Appeals Court?

    Try the good old regular Supreme Court where the defendant, charged with serious Federal charges shows up for trial without a lawyer!!

    I don't know the circumstances of the accused but this person, by not having counsel has caused costs to the both the judicial system, police and civilian witnesses in the matter, only to have this potentially happen again in another couple of months.

    I know that the wheel of Justice is slow and I THINK that defendants have the right to choice of counsel, but they should NOT be allowed to appear in Court without counsel, especially when they are expected to be on trial.

    If defendants are not allowed to appear without counsel in their initial case, maybe it will curb the need for appearing in the Court of Appeals.

  • George
    July 01, 2010 - 20:00

    The lawyers and judges are all part of the same clique. If you don't pay for a lawyer than the judge will see that you pay the piper.

  • Been there..
    July 01, 2010 - 19:56

    Don't get me started! As a spouse of someone who has repeatedly had to go to court trying to SEE his kids,there is much more wrong with the court and lawyer system here in Canada. Thousands have to be spent to file a document, then the lawyers of each party play games sending affadavits back in forth, and finally when you get to court the first day, one party decides not to even show!-Not even the laywer in our case, after we flew across the country for a court date! The judge let that go, so the following week only the laywer showed, and 'needed' more time because it was inconvenient for the client.-Come on! The judge should have slapped a contempt charge on both the cleint and the lawyers butt! If the judges would call a spade a spade, and not let the lawyers play these games to extract more money out of clients, maybe people would choose to be represented in court. I personally ended up representing my husband in a full day trial against a lawyer from AB,and got what was needed to see his child! But, only after months to get there and a few thousand dollars before we realized the lawyer didn't care about us or the child. They don't care about anything other than their career, and their pocketbook. Judge's need to quit the stalling in their courtrooms, and start charging people who are BS-ing their way through the system. Judges should be taking responsibility for letting the lawyers and clients get away with wasting the courts time-especially when (in our case) it is parent alientation...but that's another issue on it's own within Canada that should be addressed seperately by Judges. Don't get me started..but somebody needs to!

  • Peter
    July 01, 2010 - 19:55

    Derek Green, you hit the nail right on the head. The system is certainly flawed and lopsided towards corporate entities and wealth but if the costs weren't an issue than every joe would be bringing every tom to court out of spite and the system would be clogged. A solution is not going to work itself out and this issue needs to be addressed, discussed and rectified.

  • Mike
    July 01, 2010 - 19:54

    Regular people cannot afford a lawyer.

  • (another)Peter
    July 01, 2010 - 19:54

    Good lawyers are worth their weight in gold. Others just seem to turn on the meter.

    For example, when one meets with a lawyer it ought to be just that - a meeting - c/w agenda with minutes kept. Law firms will bill almost everytime they pick up the phone.

    People only want closure from a court, these days they're lucky to get convergence.

    One appeals the Judgement of the lower Court, not ridiculous technical errors, such as,(my experience) forms signed in blank, lawyer accidentally witnessing his own signature, obviously false clauses accidentially copied from one affidavit to another, ignoring the grounds of a Caveat entirely etc....

    If you are forced to spend the entire war chest in phase one, what is left in phase two?

    No big reforms, just a little discipline?

  • J
    July 01, 2010 - 19:48

    I agree with George.

    Lawyers and Judges are in a clique. As far as I am concerned anything that Green says is worthless. Nothing will change within the system. Lawyers are free to charge whatever the market will bear.

    What and see though. Wouldn't surprise me if they pass a law that requires one to pay a lawyer to represent them no matter what.

    Kinda like having to pay for Barry Obama's healthcare insurance whether you like it or not.

    Yes, you read that correctly. American's will not be able to opt out of BHO's healthcare plan as it stands now.

  • Jim
    July 01, 2010 - 19:45

    Interesting observation from Chief Justis Green of, who can afford legal representation. I can relate, from my own experience, I spent eight years in the legal system, no crime was committed and it cost me 58% of my life savings. So much for my children's education. Even the judge presiding over the case said the only one benefiting from this was the lawyers. I pleaded and basically beg to settle the matter.
    There may be future options. I have heard that we as a society are approximately 25 years away from achieving artificial intelligence (AI). If this (AI) becomes an option of representation within the legal system, and is proven timely and cost efficient, from a consumers perspective I would choose the artificial representation.
    My Father once said to me, give some of ye enough rope and you'll hang yourselves every time.

  • Taxpayer
    July 01, 2010 - 19:45

    Right CH let's change things so that you are guilty until proven innocent. That's the Conservative platform isn't it.

  • Neil
    July 01, 2010 - 19:43

    A lawyer should get paid based on their job. If they do an adequate job, they should get paid in line with their successes....Decided by an impartial board of course....