Weird and Wacky Wednesdays often raises more questions than anything. It’s not my expectation that people come here each Wednesday for answers – I get that. This week is, perhaps, an extreme example. And the questions this week are all about litigation (rather than foolish criminal behaviour). We start with a strange tactical litigation decision concerning an appeal and move on to a lawsuit that you don’t want on your shoes. Finally, we’ll close it off with the story of a lawyer in trouble.
Definitely Ineffective Counsel
Law Twitter (this is a thing and we’re starting to wonder if it shouldn’t be) was abuzz this week because of a decision released by the Ontario Court of Appeal. In the hearing, the appellant argued ineffective assistance of counsel. Essentially, the appellant wanted the case overturned because, they argued, their lawyer at trial botched their case.
Now, it’s a very rare case where one advances such an appeal and lawyers are discouraged from mounting an incompetence-of-counsel appeal unless they are very experienced and have decades of lawyering under their belt. After all, it’s unprofessional to make such an assertion without an incredibly solid basis of such a claim.
And because it is such a drastic assertion, of course you better be ready to carry it through and prove it to a high degree. And finally, before you ever consider filing such an appeal, you must follow the practise direction and call the lawyer who conducted the matter at the lower court to speak to them about the case. To do otherwise would be unethical.
Which makes this case just that much more of a head scratcher. You see, the lawyer at trial was part of the same legal team arguing ineffective assistance at trial. And as you read this, so many questions come to mind but first let’s look at this quick comment from the decision”:
 The appellant argues that trial counsel, who is also apparently an employee of the appellant or a related company, provided ineffective assistance at trial. The appellant submits the incompetence of its lawyer should be visited on the respondents, and the judgment obtained by the respondents dismissing the action should be set aside because the appellant had incompetent counsel. Remarkably, the appellant makes the submission although counsel, who the appellant says was incompetent at trial, appears as co-counsel for the appellant on the appeal.
More questions than answers, I would say. Did the submissions go like this “I really screwed this up. Wow. I didn’t know what I was doing.”
It’s strange. I always give lawyers the benefit of the doubt (with extra gravy) because things are often more complex than you will find in any judicial decision. In this case I suppose the lawyer would not face a law society complaint for not calling trial counsel seeing as they would be calling themselves.
One wonders what was going on.
Land of the Free, Home of the Lawsuit
America is many things including the land of lawsuits. In Canada the courts may punish you for suing for things that may be a legitimate cause of action in the US. Take, for example, this goose feces case.
Now, Six Flags certainly has a duty to protect visitors from certain risks at their parks. But what about the intervening risks created by intervening animals such as geese? A Massachusetts court is going to grapple with this problem when the matter of the woman who slipped on goose poop goes to trial.
Yes, the plaintiff in this case, a real estate agent, slipped on goose poop on some Six Flags grass and broke her ankle. She claims that the goose-poop removers, if there were any, weren’t properly trained or were negligent. And she is seeking $250,000 from the park for their alleged negligence.
Honestly though, can you blame the park when the geese come and…
I have questions
In the next case, my first question is what was going through this lawyers mind?
It’s always a sad day for us when we see lawyers in trouble. It’s an incredibly difficult job and if you’re not in it deep, it’s hard to comprehend even generally what we put ourselves through to serve our clients and run our practises. Sometimes the stress is overwhelming.
Best, however, when dealing with that stress, is not to tell a judge “fuck you.” Missouri lawyer, E. H. Fahrenkrog must have forgotten this for a moment when on July 14, 2021, he told Judge J. Borbonus “fuck you.”
So many questions. What triggered the outburst? Did he realize when the words came from his mouth that, well, this was a big mistake? Is there some history here between the lawyer and the judge? Was it said like “no way?” You know, “fuck you, are you joking?”
Sadly, this lawyer was found in contempt and sentenced to a week in jail which seems a little extreme to us. These are commonplace words with commonplace meanings.
More questions than answers. We will leave it to the philosophers to determine the meaning of all of this.
Socrates, on the steps of the Acropolis, turns to the students and asks, “what is it really to say fuck you?” while Plato takes notes. A question for the ages.