January 29, 2023

Double Bubble Chapter 9: The System Isn’t Broken

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This entry is part 9 of 14 in the series Double Bubble

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On the third day after the Terror ghosted from my office, I’m down at the Ottawa courthouse trying to sweet talk one of the court’s panjandrums at the civil filings counter to add me to that morning’s court docket. It’s Friday, and my objective is to start a legal proceeding against First National and then immediately get a court order permitting me to obtain an unredacted copy of the police file on Danny.

I hatched this marvellous plan about two hours ago, and it is almost certainly doomed to fail. I have about as much chance of getting that order this morning as Frodo did when he set out from the Shire for a quick visit to Mount Doom with the One Ring chained around his neck. Only instead of being chased by the Nazgûl across Middle Earth, my plan is being thwarted by Ms. Doris Fleshman.

Doris is a fixture here at the courthouse. A fossil so old I’m convinced she was here before ol’ John By and his boys started cracking stone on the canal in 1826 and swilling beer at the nearby Firth Tavern. Doris is the proverbial gatekeeper, that person whose responsibility it is to keep those who need something away from those able to provide it. It’s her job to make sure nothing gets done today that is better done tomorrow, next week, next year, or never. And there is no one at the courthouse better at her job than Doris.

I don’t dislike Doris. But she is one of several obstacles I must contend with this morning if I am going to succeed with my plan. Most of the time, getting through the bureaucratic maze of the justice system feels like playing Super Mario Bros on my old Nintendo NES. I am basically like Mario, running and jumping through a gauntlet of fireballs and smashing boulders while evading Bowser and his minions on my way to the flag at the end of the castle.

For my plan to succeed, I will need to conquer five levels, and Doris the super Boss, guards the first three. Getting past her will require skill and insight, and experience. But unlike the young guns sent down here by their big law firms on Fridays to bayonet Doris or to batter her, I deploy a different strategy. One that starts with coffee and a muffin.

After years spent in trials at the courthouse, shoulder to shoulder with the court staff standing in the interminable Tim Horton’s food line, I know Doris enjoys a double-double and a pecan banana bread muffin in the mornings. I also know that on Fridays, she doesn’t have a chance to pick up her order before she starts at the counter. My plan starts with leveraging that little bit of fact for some good old-fashioned reciprocity, which also happens to be the first rule in that wonderful book titled Influence.

Doris opens the counter at eight-thirty. Since there is a number system, like the kind used at the deli counter in your local grocery store, all the young guns have been down here since seven to get the limited number of tickets for today’s docket. I don’t have a number, and I am too late now to get one. But that’s alright since I’m also not some dumb rube, and this isn’t my first rodeo with Doris. As soon as she moves her sign and opens her wicket, I stroll over to her, coffee and muffin in hand.

I can hear the hysteria of the hyenas and jackals behind me as I breach protocol and drop myself at the front of the line. I understand how they feel. If I were a young gun and had been waiting in line since seven to see Doris, I’d probably be pissed off too. But I’m not. As fictional cowboys go, I’m more William Munny than William Bonney, which is to say I’m old, I’m tired, and I’m itching for a fight. The young guns must sense it too because not one of them has the moxie to open their fucking mouth to stop me.

“Morning Doris,” I say with a big smile.

Doris can smell bullshit like a pig hunting truffles, so I don’t try and ply her with false compliments or insincere inquiries about her deadbeat son still riding the sofa at home or her husband’s sore back or any of the other half dozen things I know about her from years of listening and observing. Instead, I play the second rule in the book, being friendly and reminding her that she is someone I really, really like.

“You have the patience of Job,” I say as I hand her the coffee and muffin.

“Thanks,” she says with a smile.

I quickly move to the eighth rule of persuasion, unity. Us vs them. Doris and me against the world. Old vs young. Or, I hope, us against all the bright-eyed, bushy-tailed lawyers standing around behind me. It isn’t difficult to trade on that feeling. If you were Doris and had spent half your adult life listening to young lawyers whine, you’d probably hate them about as much as she does.

“Lots of vultures here today,” I say, turning slightly to nod at all of them. “Impatient bastards, aren’t they.”

I’ve learned over the years that the one thing all the Dorises have in common is how much they loathe lawyers and feel morally superior to them. So I bait my line and dangle it in the water in front of her, hoping for a nibble.

“Honestly, Doris,” I say, “I don’t remember it being like this when we first started. Every year the egos and the chirping and the disrespect just seems to get louder and louder. I don’t know how you handle it so well.”

“You have no idea, Bill,” she says, tugging on the line. “Most days I wonder how any of them made it through law school.”

She laughs, and I laugh, and we both have a laugh at the expense of the young guns milling around, each of them wondering what’s so funny. They don’t know me, and I don’t know them, but every single one of them would gladly rip my head off right now for jumping the queue. I don’t know what they are complaining about. The way I figure it, they should be thanking me for giving them a masterclass in the fine art of persuasion and manipulation. Sadly, their hate for Doris will grow, and her resentment towards them will fester, and by the time they realize they should have been nicer to her, it will all be too late. If she hasn’t already blackballed them in the secret register maintained by the clerks down here, she soon will.

As I said, building unity with Doris isn’t difficult. I don’t have to peddle any insincerity because she really does despise them, and so do I. And that’s the secret. Find a common enemy, build unity around it, and suddenly it’s Doris and me, BFFs forever. Swell.

And like the video game I’m playing, I’ve completed level one and managed to get myself in front of Doris without making her angry. On to level two.

This level is a bit trickier. I need to get on the court docket. Doris controls the docket.

“Who’s running motion’s court this morning,” I ask while she pulls back the lid on her coffee and takes a sip. I can see her savouring the taste and inwardly smiling as reciprocity works its magic.

“Justice Grant,” says Doris.

She rolls her eyes, and I chuckle softly like we are two old friends gossiping around the water cooler.

“Managed to rouse himself this morning, did he?” I say, playing on our insider knowledge that Justice Grant is a regular at D’arcy McGee’s, a nearby pub up the street from the courthouse.

“Not happily,” she says, “but he didn’t have much say in the matter.”

I chuckle again. Trading gossip with the court staff is tricky business. You need to say enough to make certain they know you know what they know but since most of them take great pride in the fact that they work for judges and are rabidly loyal, you must never directly insult or malign a judge unless the clerk does so first. There’s a pecking order at the courthouse, and lawyers are at the very bottom, not much better than the dregs floating in the river nearby.

“Any chance you can get me on Justice Wynn’s docket this morning?” I ask.

Doris is halfway through her muffin now and is suitably warmed up for my request. I read the court docket at the security desk as soon as I arrived this morning. I knew Justice Grant was running express motions, and I also knew that my odds of persuading him to make the requested disclosure order were slim.

Justice Grant considers himself to be the resident expert on all things civil procedure, those mumbo-jumbo rules that govern civil claims. My request is not just unorthodox, it amounts to a breach of several important rules, including the one requiring me to give notice to the police and to Terrence as my opponent in the proceeding I’m about to start.

The civil system is adversarial and assumes that every request made by one lawyer will be opposed appropriately by some other lawyer. If there is no opposition, there is an inference that the requested order has some merit and is agreeable to everyone involved. By dispensing with notice, however, I am proposing to undermine and bypass this critical feature of the system, and I know that Justice Grant will see it, hate it, and refuse it.

That’s why I need to get before Justice Wynn. I am not her favourite lawyer, but she is practical and efficient, and if I can persuade her that my request will cut down on the procedural bullshit later, she might be inclined to grant it. Not that she is a pushover. It will still be a difficult request to win, but she will at least give me the opportunity to persuade her that it’s the right decision to make and a good use of her discretionary power.

“Let me see,” says Doris tapping on her keyboard with one hand while scarfing down the rest of her muffin with the other. “She is sitting this morning…”

Like Mr. Sad Sack, I know enough to bite my tongue and not say anything. Sometimes the best way to win is to let the other person solve your problem for you. If they are suitably inclined, they will know better how to help and interrupting them would negate the reciprocity in play.

“…but I don’t think I can add you to her docket from here,” she says after a minute. “And Justice Grant has too many motions this morning so I don’t think you will be heard by him.”

This is the answer I expected. When I first started practicing, I would have heard this as a no, but years of hard work have made me something of an expert in bureaucratic double-speak, and I know Doris isn’t saying no. She’s saying maybe. Or, more precisely, she’s saying I can’t help you, but I can’t stop you from trying.

“I understand,” I say. “Would it be alright if I filed my motion and application and went up to see her. Maybe if I tell her that Justice Grant has too many motions this morning, she’ll be willing to hear me?”

This is double-speak for don’t worry Doris, I won’t mention you if Justice Wynn gets angry with my showing up in her courtroom.

“I guess that would be ok,” she says with a shrug. I’m not on the Doris no-fly list. If I were, she would have just tossed me out of line.

Level two complete.

On to level three, the last and scariest Doris level: persuading her to accept all of my paperwork for filing.

You’d think that filing legal documents would be the easiest part of the process, but you’d be wrong. Contrary to popular opinion, civil lawyers don’t win cases on technicalities. But the technicalities do keep their cases from being heard by a judge. Those technicalities are enshrined and buried in a set of procedural rules that few lawyers grasp and fewer master. Most don’t even bother reading them. That is their mistake. A mistake Doris is always happy to capitalize on. I’ve met drill sergeants with less exacting standards than Doris. She is to the rules of civil procedure what Moses was to the ten commandments. She didn’t write them, but by god, she enforces them.

And if pleasing Doris weren’t difficult enough, there’s the additional frustration that the justice system seems to thrive on changing its court forms more often than you change your underwear. The changes are almost always subtle and almost always driven by some bureaucratic impulse to tinker and improve. And that’s fine if you work in a large law firm where some putz named Jimmy is tasked with keeping current on all the notices to the profession and updating the forms for the entire firm. If you have a Jimmy on your team, you probably never have to worry.

But when you’re a solo lawyer like me, every trip to the courthouse to file documents triggers a fear so profound I’m surprised the Encyclopedia of Phobias, Fears, and Anxieties doesn’t have a word for it. Every time I step up to the wicket to do battle with Doris, there is a danger she will reject my filing because I forgot to include some ridiculous form she needs because some asshole in Toronto decided no filing would be complete without it. That the form didn’t exist until last week, that the form provides no useful insight about my client’s case, that the form serves no practical purpose whatsoever, is of no consequence to Doris. She has a job to do, and that’s all there is to it. Occasionally, she will take pity and give you a chance to fill out the form while you’re standing at her counter; other times, she smiles at you cruelly, like Bowser waiting to smash Mario to bits, and sends you packing. Filing online is an option, but it doesn’t bypass Doris and death by email is worse than death in person.

I hand my packet of documents to her and hold my breath. Having given her a coffee and muffin, I like my chances of making it through level three, although I am no less terrified. Beyond the possibility that I have missed some court form, there’s also a strong chance she will reject my filing because I am trying to cut a pretty big corner in my case against First National.

If you’ve been raised on a diet of American legal dramas like most of my clients, you already know a few things about the justice system, like how much paperwork is involved or how long everything takes or how suing an insurance company starts with a lawsuit and ends with a jury verdict.

But at this point in the telling, you’ve probably also sorted out a few things about me, like how much I loathe small talk or that maybe paperwork is not my cup of tea, or that maybe I don’t care for lawsuits and even less for juries. You’ve probably judged me a man who cuts more than the occasional corner and whose ethics run with the tide. And you’d be right to think such things of me. I’m no saint, and I’m willing to confess that I do, on occasion, cut a corner or two to get a job done. It hasn’t always been that way, but it is the way of it now.

Still, the corners I cut are mostly procedural — inefficient, pointless rules that cause delay and embolden insurance companies like First National to avoid paying claims. Terrence is counting on that delay. Terrence is counting on having a jury. If I am going to win, I have to neutralize his advantages. A jury won’t help me or my cause, so I need to aggressively shoehorn the claim for the insurance money into one of the other legal processes adopted by the courts in Ontario over the last decade.

As it happens, judges hate juries almost as much as plaintiffs, and that means there are plenty of paths I can take to keep this case from a jury. Most of those options involve me fighting various summary skirmishes with the hope that I can conclude the case before it gets to trial. But when it involves Terrence and First National, if I am going to fight a procedural battle, I’d rather it be one that gives me the best chance of avoiding a trial at all. That means filing an application demanding an early audience with a judge to consider the case rather than waiting years for a jury to decide.

Terrence would oppose this request if I had bothered to ask him, which I haven’t. I don’t need his permission. I do need Doris. I have to persuade her to accept my application and open a court file. I have to persuade her to give me the earliest date she can for an audience with a judge. If she does that, level three will be a success. If she doesn’t, I will have to start a traditional lawsuit, and Terrence will have unwittingly won his first round in our fight over Danny’s policy.

Doris starts by reviewing my application because, without it, there is no court file, and if there is no court file, there is no motion to be made this morning. She scans the papers and looks up at me. I can’t tell if she is with me or against me.

“Is this a demand for money,” she says.

“Sort of,” I say. “Indirectly I guess.”

She arches an eyebrow. “Indirectly?”

“First National has denied my client’s claim on the basis of suicide,” I say. “She isn’t making a demand for money, she’s asking a judge to interpret the policy and make a declaration that her boyfriend’s death wasn’t a suicide. It’s a yes or no question. Since there aren’t any material facts in dispute, it should take no more than two hours to decide.”

Strictly speaking, all of that is true. I keep my expression neutral and my voice even. I don’t want my anxiety to torpedo my chance of defeating Doris and conquering level three.

Doris looks at me as if debating whether to accept my explanation. We both know what I am trying to do is unorthodox. In years past, my attempt to start this legal proceeding with an application would have failed. It would have been against the rules. But times have changed. The rules have changed. I’m not breaking a rule, but I am trying to bend one. It’s up to Doris, the gatekeeper, to decide whether she will let me.

She takes a sip of her coffee, shrugs again, and starts tapping her keyboard. She may not be any fence corner peach, but she is efficient, and I’ll take efficient over enchanting any time.

“When do you want this application to be heard?” she says.

“I’ll take the first date you have,” I say.

Doris nods and goes back to typing. Having decided to let me pass, Doris makes quick work of the filing, stamps my documents, takes my money, and sends me on my way.

The whole exchange probably took a little more than five or six minutes, but you’d never know it by the irate looks I get from the young guns as I walk away. I look down at my application and see that Doris has given me a date to argue my application in four weeks. Things are going to move fast now. I smile. Fuck you, Terrence.

Level three complete. Only two more levels to go.

Justice Wynne is sitting in Courtroom 34, but she won’t start hearing cases until ten. I take the stairs two at a time and nod politely at the familiar faces as I go. This next level will require me to talk my way onto Justice Wynn’s docket. Fortunately, unlike Doris and the other counter staff, the clerks sitting in court rarely attempt to stop a lawyer from speaking to the judge. They simply assume that someone else has vetted the request and authorized my appearance. In this case, I am hoping whoever it is will assume if Doris let me pass, I have permission to be there.

As I enter the courtroom, I’m delighted to see a familiar face sitting at the front of the room. My luck seems to be holding.

“Hello, Lydia,” I say as I walk toward her.

Lydia Iezzi is a senior clerk and an all-around nice person. Pleasant and affable, there is no chance she will refuse to let me speak with Justice Wynn this morning. I pass her my motion materials. She barely looks at them. Other than some painful small talk, level four is done. Only one level left.

Justice Wynn arrives about two minutes past the hour, and after seating herself comfortably, she looks out at the gallery, scanning to see who’s here. Her eyes stop when she notices me. She nods, and I smile in return.

As is customary, Lydia confirms that everything is set to start, and once court is open, she lets Justice Wynn know that I am here and hoping to speak to an urgent matter. She hands Justice Wynn my motion materials. And like that, I’m now at level five. The final level.

Hearing my name, I stand and move to the counsel table and wait while Justice Wynn scans my motion record. There isn’t anything unusual in my request except that I haven’t told anyone that I am making it. It’s unorthodox but, again, not against the rules.

“Good morning, counsel,” says Justice Wynn. “I don’t remember seeing your case on my docket this morning?”

“It wasn’t your Honour,” I say. “But Justice Grant’s docket is completely full and I was hoping you would consider hearing me this morning. It is an urgent request but it won’t take long to argue.”

She scans the motion again and looks up at me.

“I see Mr. Winch is counsel for the Respondent?”

“Yes, your Honour,” I say.

“I don’t see him here this morning. He isn’t opposing your request I take it?”

“I’m not sure, your Honour,” I say. “My motion is without notice to him.”

“I see,” she says. “You’re seeking production of a police file for a Daniel Piggot?”

I nod.

“I don’t see counsel for the police here this morning. They do not oppose your request?”

I smile. My heart is racing.

“I’m not sure,” I say. “My motion is without notice to the police as well.”

She looks at me briefly before going back to reading. If she isn’t happy, she hasn’t said so yet. After she finishes reading, she looks up at me. Her expression is neutral, which is about as well as I could hope for.

“Why is this motion urgent and being brought without notice?” she asks.

It’s a perfectly reasonable question, and thanks to Doris, I have an excuse.

“Because your Honour, we have an application in four weeks to decide this case. I have to move quickly to secure the records. I would have made the request directly but my client is not next of kin or an executor of Mr. Piggott’s estate. Without a court order she won’t be able to prove her case.”

“And that makes it urgent,” she says. Her tone makes it clear she is skeptical.

“Mr. Winch and his team have already secured a copy of the police report and the coroner’s file. My client’s ability to present evidence will be compromised with any delay. There is no prejudice to either the Respondent or the police if you grant the order. But my client’s position will be prejudiced if we can’t get the records immediately.”

“I understand that but I don’t see how that justifies dispensing with notice?” she says.

I take a breath. If I can’t get this order today, I am going to lose my application date. I can’t win this case without the unredacted police file.

“The rules permit you to dispense with notice when it is in the interests of justice to do so,” I say. It’s a hail Mary pitch. The kind reserved for beggars and sinners. This morning I’m both.

“Yes,” she says patiently. “I understand I can dispense with notice but I haven’t heard you tell me why I should.”

I’d love to tell her I had some great reason in mind, but I don’t have one. I literally woke up this morning and decided this was my best hope to win this case, and now here I am. I don’t think she would find my half-baked scheme persuasive. I shake my head and try again.

“There was simply no time,” I say. “My client is playing catch up with the insurance company and needs to obtain these records to properly present her case. Waiting for Mr. Winch and the police to provide their position and comments will only delay the process unnecessarily and cause prejudice to my client. It’s a reasonable request and there are no grounds for either the Respondent or the police to not consent except to cause delay.”

She looks at me like Doris did a few minutes ago. She hasn’t thrown me out, but unlike Doris, Justice Wynn is far less enthusiastic about dispensing with notice.

“I’ll tell you what I am going to do,” she says. “I’m going to be here all morning listening to this other case. I want you to send a copy of your motion materials and the draft order to Mr. Winch and to the police. It may not be much, but some notice is better than no notice. We will be breaking for lunch at around twelve thirty. If no one has responded by two, I will grant the order.”

I nod and smile and thank her. This is not ideal. Once Terrence knows that I have started an application rather than a traditional lawsuit, he will go ballistic. Then he will try and quash it. But there is nothing for it. I can’t ignore a direction from a judge. I just have to take my chances that Terrence isn’t around on a Friday. I head off to the library and dutifully send the materials to the police and to Terrence. I don’t copy Ashley. She’ll be annoyed, but I’d prefer to leave her out. It feels easier that way. I sit in the library to wait. I try doing other work, but it’s no use. I watch the clock ticking away and keep my fingers crossed that my luck will hold.

At twelve-thirty, I get a response from the filing clerk at the Ottawa police. Other than a minor adjustment to some of the language in the order, she confirms the police won’t oppose my request. This is a normal response. I hadn’t really expected opposition from that quarter. It’s Terrence that I am concerned about.

At ten to two, there’s no sign of him, so I head back to Justice Wynn’s courtroom. She’s already there waiting for me when I arrive.

“Welcome back, Mr. Frost,” she says. “Did anyone respond?”

“Just the police your Honour. They don’t oppose my request.”

“Yes,” she says. “I assumed that would be the case. And Mr. Winch?”

“No response your Honour,” I say.

“Very well,” she says. “I’m satisfied that the matter is urgent and that at least some attempt was made to notify Mr. Winch of your motion. I’ll sign the order.”

I hand her the draft order, and she reviews it carefully before signing it. As soon as she does, I breathe a sigh of relief. Level five is almost completed. I just need to make it out of here before anyone turns up to oppose the request. It wasn’t pretty, but my plan held.

She hands the order to Lydia and asks her to go and make a copy for me. I start packing up my things expecting Justice Wynn to leave. When she doesn’t, I look up and see her staring at me. I look around, but it is just the two of us in the courtroom. It’s unusual for both of her staff to be gone. I can sense there is something she wants to say but is hesitant.

“I was sorry to hear about your father,” she says after a minute. “I enjoyed working with him. I always considered him a brilliant lawyer.”

Fucking hell. I’d forgotten that she used to work at Dexter Frost. It was before my time. Is this why she sent her staff out so she could open this can of worms? It’s been two years, and I really don’t want to talk about this. But there’s nothing I can do. I’m a captive audience. She’s a judge. It isn’t like I can just walk out.

“Thank you,” I say, averting my eyes from hers.

I’m hoping that the discussion about my father is over. I’m hoping Lydia will be back with a copy of the order so I can get the fuck out of here. I look up again to find Justice Wynn still staring at me. Fucking hell. Just kill me.

“I also heard about what happened to you after he died,” she says.

I look down again. Why won’t she stop talking? Please stop talking.

“I don’t know all the facts,” she says. “But I don’t think it was right what they did to you. And I doubt that is what your father would have wanted.”

I don’t know what I’m supposed to say to any of this. I’ve made my peace with it. Or at least I had until Terrence walked into my client’s botany shop and tore the band-aid off the festering wound. She is still looking at me, waiting for some response, I guess. Before I can, Lydia is back and apologizing to Justice Wynn for taking so long. I’m relieved. The judge smiles at me, pauses, thinks better of it, and leaves.

I should have known that people would be gossiping. I should have planned for that. I’m just glad I didn’t have to explain everything. I walk out of the courtroom and start for the stairs when I spot the Terror just making the third-floor landing. I don’t have the energy to deal with him, so I quickly turn and head toward the back stairwell. I don’t look back. Maybe I’m a coward, but I don’t care.

Other than the hiccup with Wynn at the end, I consider this a good day. Maybe I’ll grab a pint before heading home.

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