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Old man’s law of the sea: ‘First we keelhaul the lawyers’ | Marcel Strigberger

Friday, June 17, 2022 @ 2:30 PM | By Marcel Strigberger


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Marcel Strigberger %>
Marcel Strigberger
Albert Einstein said, “Education is what remains after one has forgotten what one has learned in school.” Which brings me to law school. Is that learning always practical? Hmmm.

During our first week at McGill University, the librarian gave us a library tour. Suddenly I heard a “pssst.” I looked over and a gentleman, one Duncan, a graduate student from England, started chatting. He said, “Henceforth, as a man of justice, you will never view life’s events from the perspective lay people do.”

I felt spooky. Blessing or a curse?

I remember our first property class studying the iconic 1700s property case of Armory v. Delamirie, where a chimney sweep Armory found a jewel. He took it for appraisal to jeweler Delamirie, who refused to return the gemstones. Armory sued. The court held for the plaintiff noting that finder’s rights are paramount except against the rightful owner. In effect possession is nine points of the law.

I was exuberant with my knowledge of property law. I told my dad, who was assisting my education funding. He took a puff of his cigarette and said, “This is what they teach you in law school? That’s obvious. That chimney sweep should never have let the jewel out of his sight. Some jewelers are crooks.”

I certainly did not view it from this perspective.

We soon studied the seminal 1932 negligence case of Donoghue v. Stevenson, where the plaintiff at a cafe in Scotland noticed a decomposed snail in her pale coloured ginger beer after pouring it into a tumbler out of an opaque bottle. She became ill and successfully sued the manufacturer. The court affirmed that the manufacturer owed a duty of care to its potential consumers.

This case was huge, but I felt uneasy sharing it with my dad. I did not want to risk disrupting my funding chain. My father however sensed my anxiety and asked me what I had learned today. I quickly gave him a short case summary. He said, “Interesting. That lady would never even have seen that snail had she been drinking Pepsi.”

I certainly did not view it from this perspective.

My dad’s kind financial assistance continued uninterrupted. 

But does this exciting academic inculcation prepare us sufficiently for practice in the real world?

After law school came articling. I was interviewed by a seasoned trial lawyer, Hank.

I proudly handed him my law school transcript, showing great grades, including an A in admiralty law. Hank chuckled and said, “Next time two ships collide on the streets of downtown Toronto, you’ll be the first I’ll call.”  

He ripped the transcript in two. Yikes! I felt like my legal career had just sailed into the Bermuda Triangle. 

Hank continued. “Forget about what they taught you in law school. You’ll learn quickly that justice in the trenches is monumentally different. Welcome aboard.”

Hank continued “It’s all about reading people, knowing what makes them tick. He noted, “When you go to the courthouse to file a document, there will always be a clerk with a bushy moustache who will give you a tough time and reject it. As well there will also be a woman with a ponytail who will bend over backwards to accept it. It won’t help if you tell either you earned an A in admiralty.”

I recall my first couple of courthouse office attendances. I looked around carefully, but I never spotted either the guy with the bushy moustache nor the woman with the ponytail. But I quickly learned whom to approach or avoid.

Throughout the year Hank kept on this theme, stressing, “Above all, know your judges. Believe it or not, they’re human, like us.”

This lesson was invaluable. However, I did not always follow Hank’s sage advice. Once I pled a client guilty to a charge of automobile joyriding. Given the client’s previous clean record and young age I expected a suspended sentence or a small fine. To my surprise, the judge hit him with 90 days in the slammer. 

Dejected, I called Hank regarding appeal. After mentioning the judge’s name, he laughed and said, “Didn’t you know last year some fool took off with Judge Graham’s new Corvette wrecking it beyond repair? What you did is you brought the little piggy to the wolf.”

Thereafter, I always meticulously researched my judges

I later had an impaired driving guilty plea. It was the client’s second offence, meaning some incarceration.

I discovered our judge was a former navy vice admiral; he had a soft spot for sailors and things oceanic.  As it happened my client was born in Halifax. I knew I had to appeal to the judge’s instincts to access justice, (the pertinent instincts of course).

If only I could say something like, “My client is a former able seaman. His joy is to sail the seven seas. He loves reading, his favourite novel being Moby Dick.”  

But alas! My submissions to sentence went something like, “Billy originates from Halifax. He came to central Canada looking for a better future. He would like soon to visit his parents, who still live on the east coast. … He is remorseful for his misdeed …”

The judge listened attentively. I wondered how much further I could push the justice envelope. I resisted the temptation to dance a quick hornpipe.

Surprisingly, the judge said, “This is a serious matter. However, given all the circumstances, the court will give this Maritimer a break.” After a stern rebuke, he hit him with only a high fine.

I certainly did not credit my successful result to my A in admiralty. 

I related my case strategy to my father. He said to me, “That’s obvious. Didn’t they teach you all that in law school?”

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available in paper and e-book versions where books are sold. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

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