Preparations
(Written February 28, 2007)
At the February 20 and 22, 2007 trial, I was self-represented. My partner Harry (who should be a lawyer, but is not), sat at my side.
I've never done a trial before. Although I have four law degrees, I've never written the bar exams, never articled, and never practised law for a day in my life. I took national civil procedure at McGill (Quebec and Ontario civil procedure) in the early 1990s. I never took trial procedure in law school. Like most academics, I had not increased my general knowledge of law the further I went along; I increasingly specialized year after year - in comparative law and legal anthropology.
Harry couldn't resist sneaking a photo of me on the weekend before the trial: I was sitting in my study with a stack of seven books on trial procedure that I had taken out of Osgoode Hall Law School's library the day before. I'd been teaching all week and doing all of the other and sundry things that constitute my day job as a professor at Osgoode and my full time job as a mother. The earliest I could turn to prepare myself for the trial was on the weekend preceding it, which was when I found myself doing my best to cram all of trial procedure into my brain. This I was doing as an open house was swirling all around me and routinely displacing me from my home as I had just put my house up for sale three days before.
In other words I was, at best, pretending to be a lawyer. Being a lawyer is not my day job, not my vocation, and not really something I ever want to be.
The Setting
Conceivably, she could have been just about bang on when the trial judge screamed at me (to the titters of Rogers' law clerks in attendance - this tittering is reported in the Toronto Star article that covered the trial) that she had never seen a worse plaintiff in all of her 30 years as a judge.
The judge also screamed at me that I had a "thick skull".
And, despite my education, she yelled at me that I clearly had the level of intelligence of someone who has not even finished high school.
You can safely picture Judge Judy on steroids and you'd be operating within the realm of reality.
All of this was at the first day of trial, February 20, 2007.
Just after losing several layers of skin (which happened in about the first 15 minutes into the trial), I had cocooned myself with the swift realization that if I won, I had won; and if I lost, I had won:
My experience at trial on February 20 was completely of a piece with how Rogers had treated me - with a complete and utter lack of respect. I could not have asked for a better judge to bookend my debacle with Rogers.
Of course, whoopdidoo. Who cares about respect?
I was slightly prepped for my dermatological watershed. Over the previous year and a half that I had been in and out of small claims court, I had sat in and watched this judge deal with other small claims court parties. She is one of only two superior court judges in Toronto Small Claims Court. The rest are deputy judges. And she is the judge who has sat the longest on that bench - 26 years.
From my observations, Judge Thomson was uniformly as rabidly impatient and hysterically unsympathetic with all of the parties who appeared before her, showing not the least wit of concern about who they might be and what their life concerns were outside of the courtroom. I knew there was a kind of brazen democracy at play in her radical levelling of all who came before her.
She reminded me of someone. (Happily, my idle associations appear unlikely to reach Judge Thomson.)
I'll admit to being secretly glad when Rogers' adjourned our September 11, 2006 trial as I knew we had been scheduled to go in front of Judge Thomson, and I was privately hoping to have one of the empathic and gentlemanly retired lawyers who typically constitute the deputy judges at Small Claims Court slipped into her place.
"Little Miss Run-for-your-lives arrives at Grandma's house."
Pre-trial premonitions aside, within the first 2 minutes of the trial, the judge screamed at Shane Hardy to sit down as he stumbled, as Rogers' motions lawyer, to make some shacked up motion to add further pleadings to the overburdened file. And she screamed more wildly at him again to SIT DOWN!!!!! as he made a foolhardy attempt to raise his point in another fashion.
Judge Thomson later screamed at Jan Innes, Rogers' VP Corporate Communications, when she was on the witness stand, attempting to elaborate upon how kindly and sweet Ted Rogers had been in apologizing to me. Judge Thomson screamed: "That's hearsay, ma'am. I don't want to hear any more about it."
Recklessly, Jan Innes thought that the point about her kindly old boss merited being reiterated.
Whoa. Bad move.
The judge puffed up into fury and nailed Jan Innes with her incredulity that this witness was so witless as to persist: "Did you not hear me, ma'am? I don't care about Ted Rogers' apology." she fumed. "I said I DON'T want to hear it!"
Thusly was Rogers' corporate communications silenced.
So yes, a lack of respect and human empathy was generously distributed all around.
The law, like the market place, doesn't care a wit about what's nice and what's not nice. A trial is not a tea party, after all.
Dire thoughts of primitive self-preservation aside, I was thinking as I bathed myself in this crushed glass atmosphere: What message would be sent if a law professor, with four law degrees and an extraordinarily compelling case (her son's phone was cut off 8 days before her bill was due because she was refusing to pay $14,000 that the CEO of Rogers had publicly said she had never owed in the first place) could not win, or get a respectful hearing, against a great big bully of a corporation in Small Claims Court? The legal system was showing itself to be cut from the exact same cloth as the corporation.
A veil of calm descended upon me and thickened each time the judge screeched at me. I was writing my book in my head: "So this is what it is like," I was saying to myself. "Don't forget a single word, a single turn of phrase, nor single tone of voice. You've got to eventually write it all down. This trial is telling us something about our legal system."
If I lost, I was rapidly concluding to myself, I had won.
And of course it goes without saying that I was simultaneously turning over in my mind that if I won, I had won against formidable odds, and so had won big time.
And so (I was concluding) would have everybody else but Rogers:
If I - the worst plaintiff that the judge had seen in 30 years, with a thick skull and clearly the intelligence of someone who didn't even have a high school education - if I could win, then surely just about any old body could.
I could not have asked for a better judge.
I didn't win because I was slick and legally smart and sophisticated. I won despite myself, despite my education, despite having access to the best legal minds in the country along the corridors of my law school, despite having free access to all of the legal data bases I could dream of and the largest common law library (Osgoode Hall Law School's) in the entire British commonwealth.
The most ordinary of consumers, the most ordinary of plaintiffs, with not a wit of legal background, can take cheer from the extraordinary low benchmark of legal performance that I have set.
If I had begged the judge to make it clear to the Canadian public that nobody should feel bullied into capitulating to an injustice, nobody should feel cowed by a monolith of a corporation defended by a juggernaut of a Bay Street law firm, she could not have delivered this message more loudly or more clearly.
In fact, she screeched it at us.
This stirring message is amplified when the details of what I was up against become more clear.
The Other Side
So that was the team on my side: Harry and me (the zoned out, yet acutely tuned in, legal ethnographer).
On the other side: Rogers had not just one, but two Lang Michener lawyers defending its case at trial. Rogers had a pleadings lawyer, Joe D'Angelo, the head of Lang Michener's commercial litigation group, a partner with 18 years of litigation practice. Rogers also had a motions lawyer who was poised to leap up and argue all motions: Shane Hardy, an associate with 5 years of litigation practice. Rogers also had an articling student who would huddle with the lawyers in the corridors at every break to plan new strategies and angles.
And Rogers had one law clerk present, Dana Drake, who was accompanied by two student law clerks she was training.
I recognized Dana Drake because I had seen her representing Rogers in other small claims court trials. I also remember her from the fall of 2005 when I delivered a legal document to Rogers' corporate head offices - the address stipulated on Rogers' contract for dealings with Rogers' legal department. Dana Drake was dispatched to descend from the 9th floor.
She first refused to take delivery of the legal document. I persisted and she reluctantly signed for it. I distinctly remember that after she signed for it, I asked her for her business card so that her signature would be coupled with an identifiable human being at the corporation and I would have proof of document delivery. Dana Drake refused to give it to me. Persistently. Finally, she gathered herself up in a huff and started walking back to the elevators to be whisked off to the safety of the 9th floor and away from the rabble that constitutes irate Rogers consumers. I recollect yelling after her that she'd simply have to get all the way up to the 9th floor and to come all the way back down again, so she'd be well advised to spare herself the trip and do what I was asking, because by god I was going to insist that she provide me with her card and I wasn't going to leave without it.
The security guards got a little alarmed by my yelling after Dana Drake as she walked away and started to call for reinforcements. "Nothing personal", they told me. "Nothing personal taken," I replied, and we resumed our amiable chatter (backup joined in when they arrived) about how they routinely have to deal with furious Rogers consumers who come looking for a human being and only encounter the security guards (employed by a private security contractor) in Rogers' lobby, a reception being notably absent.
We chatted as I waited until Dana Drake had another law clerk sent down from the 9th floor with Dana Drake's business card to satisfy my demand for it. Dana Drake, I suppose I am sorry to say, would have a reason to "titter" when the judge raked me over the coals (as the Toronto Star reports).
Apart from Harry and me, there were three other witnesses. I called Jan Innes, Rogers' VP Corporate Communications, and Paul Harris, Rogers fraud/loss prevention manager. And Rogers called Virginia Foster, Rogers' Director of Corporate Collections Operations.
In a January, 2007 affidavit that Jan Innes swore on Rogers' motion to quash my summons of Ted Rogers, she indicated that there were a whole slew of other Rogers customer service reps and front-line workers that I had named (by first name) in all of my copious correspondence to the corporation. I had also given their employee numbers. She wrote in her affidavit that I could have summonsed all of them instead of Ted Rogers and suggested they'd make good replacements for his presence.
Apart from the fact that I didn't have any last names for these workers and that they are spread out across the country in call centers and therefore absurd witnesses to propose for Toronto small claims court, I never wanted to put the front-line workers on the stand so they would have to take all of the flack for the decisions of Rogers' directors and managers. They take that abuse all day long on Rogers' behalf. I wanted to hear from the people who are responsible for the way the corporation treats its consumers.
Did all of Rogers' mighty, fearsome fire and brainpower help?
To recapitulate, Rogers brought two lawyers with 23 years of litigation practice between them, an articling student, a law clerk and two student law clerks, three Rogers witnesses...and Rogers stacked the courtroom with about 5 other memberse of senior management.
Harry and I were outnumbered, and I was outgunned, by a long shot.
This was what I (the worst plaintiff the judge has seen in thirty years of practice, with a thick skull and the intelligence level of someone who doesn't have a high school degree) was up against...
...AND ROGERS LOST!!!
I have had lawyers estimate what it might have cost Rogers/Lang Michener in legal bills for the file in this small claims court action of $10,000. These informal projections indicate that Rogers would have spent a minimum of $100,000.
And they LOST!!!
I'm the physical person, the one that might make irrational decisions and act on principle rather than out of economic efficiency. Rogers is the legal person, the paradigmatic rational maximizer that is supposed to do a cool cost/benefit analysis before every business or litigation move.
Rogers is not supposed to be driven by passion; not supposed to allow itself to be irked and rankled by a web site and a bratty Mademsoiselle Sauve-qui-peut; not supposed to let its sense of dignity and self-respect get in the way of the bottom line.
What on earth has happened to the law and economics movement? Has someone at Lang Michener gone soft and failed to bone up on the literature?
Rogers must have momentarily thought that that projectile heading directly for its solar plexus was something other than a wee, laughable, little badminton birdie. Rogers must have seen its life pass in front of its protectively closed eyelids.