The Vexatious Litigant

BarristerDr. Valery Fabrikant was an unstable, temperamental, and frustrated engineering professor at Concordia University in Montreal when he slaughtered four of his colleagues in 1992. Acting as his own lawyer, he sabotaged his case at trial, although his murderous actions were never in issue.

No doubt impressed with his own legal prowess, he continued to file lawsuits and was eventually declared a vexatious litigant by the Quebec Superior Court in 2000, an apparently ineffective tool as today the Supreme Court of Canada dismissed his attempt to appeal a Federal Court of Appeal ruling made in 2014.

So, how does one merit a vexatious litigant label? A vexatious litigant is a person who continually brings frivolous, unmeritorious law suits intended to harass, insult and abuse the victims of his court actions and to undermine the justice system. Vexatious litigants typically represent themselves as no legitimate lawyer will take on these cases.

Attaching this label to a litigant and curtailing his recourse to the courts or ensuring that no claim can be brought without the permission of the Chief Justice of the Court is a draconian measure that is only ordered in extreme cases.

Notable vexatious litigants include:

1. JULIAN KNIGHT, an Australian mass murderer with an IQ of 132 who gunned down seven people and injured 19 in the Hoddle Street Massacre in Victoria in 1987. Knight’s multiple lawsuits were directed at prison officials and the Australian government over issues concerning prison conditions, prison discipline, access to mail, solitary confinement, and a myriad of other petty complaints. Knight was eligible for parole in 2014 but the government enacted legislation that year preventing Knight’s release from prison.

2. LAWRENCE BITTAKER, a serial murderer from California who raped, tortured, and murdered five young female hitchhikers over a period of six months in 1979. Bittaker, with an !Q of 138, sits on California’s Death Row. He filed 40 separate lawsuits against the State of California including one claiming “cruel and unusual punishment” because he was served a broken cookie. He was declared a vexatious litigant in 1993 and requires the permission of a lawyer or judge before he can commence any court actions.

3. CLIFFORD OLSON, British Columbia serial killer of 11 children between the ages of 8 and 15, in 1981, was declared a vexatious litigant by the federal court in 1994. He had filed over 30 lawsuits over issues including his lack of access to the media, his designation as a sexual offender, and his inability to vote in elections. It was reported that his case prompted the Canadian government to legislate against early release law, called the “faint hope clause”, for serial killers.

Of course, not all vexatious litigants are deranged murderers, however, prison inmates seem to be attracted to this attention-getting tactic.

4. JONATHAN LEE RICHES is a former federal prisoner in Kentucky, convicted of wire fraud, who filed over 2,600 lawsuits in six years. Victims of his court filings included publishing maven Martha Stewart; former president George W. Bush; Atlanta Falcons quarterback Michael Vick; gossip columnist Perez Hilton; pop singer Britney Spears; Apple founder Steve Jobs, and Benazir Bhutto, former Prime Minister of Pakistan.

Psychiatrists describe vexatious litigants as suffering from “querulous paranoia” or “litigious paranoia”, a subtype of a delusional disorder manifested in persons who feel obsessively wronged about minor issues and petty offences, accompanied by groundless allegations.

Their deleterious impact on the justice system cannot be overstated and unfortunately, their numbers have escalated in the last twenty years.

Lawdiva aka Georgialee Lang

Notables Who Failed the Bar Exam

GEO_edited-1From time to time I meet with young men and women who dream of becoming a lawyer and seek encouragement or advice on their journey to the bar. I believe the legal profession, although often maligned, is a noble calling, and to those lawyers who much has been given, much is owed.

A recent conversation with the eighteen-year-old daughter of a client, caused me to reflect on the process. After the completion of an undergraduate degree and successfully passing the Law School Admission Test, three years of law school follows. With a law degree in hand the only impediment to calling yourself a lawyer is the passing of the bar exam.

It is at this point where many people run into a roadblock. Certain of the bar exams are notorious for their difficulty, including the tests required in New York and California.

The top spot for lawyers who have failed their bar exams goes to MAXCY DEAN FILER who obtained his law degree in 1966, but failed the California Bar Exam 47 times before finally passing the exam in 1991.

By the time he was permitted to practice law, both of his sons were lawyers. He worked with one of his sons for about five years before striking out on his own. His other son is now a judge in California.

But there are many more lawyers who struggled for the right to practice law, but were forced to retake the exam. Some of the notables include:

1. MICHELLE OBAMA- A graduate of Harvard Law School, Ms. Obama failed her first try at the Illinois Bar Exam, said to be one of the easier bar exam States;

2. HILARY CLINTON- Former Secretary of State, former Senator for New York State, candidate for President of the United States, First Lady during Bill Clinton’s presidency, attended Yale Law School, wrote her bar exam in Washington DC and failed. Around the same time she wrote and passed the Arkansas Bar Exam, practicing patent law and intellectual property law. Her pro bono interests were in the area of child and family advocacy;

3. THE MAYORS- RICHARD DALEY of Chicago, ANTONIO VILLARAIGOSA of Los Angeles and ED KOCH of New York;

4. THE GOVERNORS- JERRY BROWN of California, PETE WILSON of California, and DAVID PATERSON of New York;

5. PAT ROBERTSON, founder and host of the 700 Club and leader of the Christian Coalition, graduated from Yale Law School but failed the bar exam. He then abandoned law and obtained a Doctor of Divinity degree. Leader of the christian right, he is a successful businessman and entrepreneur, who founded Regent University which includes a Judeo-Christian law school.

6. KATHLEEN SULLIVAN, former Dean of Stanford Law School, Marshall scholar at Oxford, graduated from Harvard Law School in 1981, constitutional and appellate law expert, often mentioned as a candidate for the United States Supreme Court, failed the California Bar Exam, but rewrote it in 2006 and passed. Many years earlier she had been admitted to both the Massachussats and the New York bar.

It is clear that perserverance is the cornerstone of success. To all my friends, young and old, who have a dream, remember these words:

“Nothing in this world can take the place of persistence.
Talent will not; nothing is more common than unsuccessful
people with talent. Genius will not; unrewarded genius is
almost a proverb… Persistence and determination alone are
omnipotent.”
Calvin Coolidge

Lawdiva aka Georgialee Lang

Witty Judge Pens Acerbic Judgment

GEO CASUALMr. Justice Joseph Quinn of the Ontario Superior Court well-deserves his international reputation as a clever intellect, a raconteur of immense talent, and a really funny scribe.

In one of his latest judgments, The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al., 2014 ONSC 583, his acerbic wit shines as he records his fond memories and legal findings of a 72-day trial, spread over three years, that dealt with the allegedly fraudulent sale and purchase of a hearing aid business in Niagara Falls, Ontario.

The star witness in the case was Stefan Fridriksson, an audiologist who purchased a hearing aid business from the corporate defendant. While his lawyer referred to him as “Dr.”, Quinn J. put an end to that designation upon learning that the title was prohibited by the College of Audiologists and Speech-Language Pathologists of Ontario.

Blessed with an orderly mind, Justice Quinn set out a Table of Contents with headings that include:

“Is There a Doctor in the House?

“Fridriksson plays Lieutenant Columbo with Inspector Clouseau results”

“All the Madness That’s In Your Head”

“….Nor Hell A Fury Like an Audiologist Scorned”

“Fridriksson The Fabricator”

While trial counsel usually turns to the back page of Reasons for Judgment to see the results of a trial, in this case, the Table of Contents gave it all away.

Yes, the trial got off to a shaky start, described by Justice Quinn in his first paragraph:

“Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.”

Unfortunately, the first witness was Dr., no make that Mr. Fridriksson who according to Quinn J. “sub-let the witness box for 26 days” with dire results:

“He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began.”

Fridriksson turned out to have a less than credible curriculum vitae. Where he noted he was a professor he wasn’t, when he said he was an adjunct professor, he wasn’t that either. What was he? An unpaid lecturer!

But that was the least of his problems. The Court identified the often troublesome task of determining credibility:

“We have no special powers in that realm and, wherever possible, avoid reliance upon darts, dice and Ouija boards. However, rarely, has a witness generously offered up so many reasons to be disbelieved. Fridriksson was an evidentiary gift who kept on giving. He ignored rule number one
in the Litigants’ Credo: “Know thyself, because others soon
will.” Enough of this preamble. Come with me now on a visit to the phantasmagorical work of Fridriksson. Pack light.”

But the quips keep on coming, like an avalanche:

“For Fridriksson truth is like a spandex undergarment:he can stretch it to fit anything.”

“Readers must never forget. This is a key witness for a plaintiff alleging oral false misrepresentations.”

“I do not know who enjoyed this cross-examination more, me or (defendant’s counsel). The only thing missing was popcorn.”

“His testimony deserves a special descriptor, coined for the occasion: “incredibull.”

This judgment tickled me so much that I recommend you read all 326 pages…it’s a laugh a minute. Oh, yeah, Fridriksson was awarded $423.00 in damages.

One last zinger:

“Fridriksson has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure,” the judge writes.

Lawdiva aka Georgialee Lang

And Now the End is Near- 2014 Highlights

BarristerFor me, 2014 was fulfilling, both personally and professionally. On the work side, I arbitrated some interesting family law cases, handled several Hague Convention child abduction cases: one that saw the successful reunion of father and child after an abduction from Portugal to Canada, and the other an appeal from an order that a child be returned to Montana.

Personally, I found time to workout with my incredible trainer, Janice; enjoy neighbourhood cook-outs and pool parties; sing in my choir; brainstorm ideas for a book on women in leadership, and enjoy the beauty of California and B.C’s Okanagan.

Meanwhile my contribution to the blogosphere continued throughout the year, with the following highlights:

1. Shared parenting: MP Maurice Vellacott’s bill on shared parenting crashed and burned when the Liberals and most of the Conservatives voted against it in the earliest stages of second reading.

Despite it being a part of Harper’s election platform, only a few brave backbenchers supported the bill. In retrospect it is likely that the focus on a strict equality of parenting time, instead of an emphasis on shared parenting that could see one parent with less than 50% depending on the work and school schedules of parents and child(ren), led to its early demise.

2. New Prostitution Law: On December 6, 2014 the Conservative government brought into effect their new law, based on the Nordic model adopted in Sweden, Norway, Iceland and other European countries.

After the Supreme Court of Canada struck down Canada’s previous law in 2013, which did not criminalize prostitution, but made it illegal to solicit for prostitution, operate a common bawdy house, or live off the avails of prostitution, Justice Minister McKay’s new bill was reviled in many quarters.

The new law criminalizes prostitution for the purchaser of sexual services, while women, girls, and boys who sell sex are no longer subject to legal sanctions. They are treated as exploited victims, with the goal of helping them escape the sordid life of prostitution with its inherent danger.

3. Conscious Uncoupling: Amid mockery and snide remarks, Gwyneth Paltrow introduced “conscious uncoupling” to the world of divorce, as a softer and gentler way to separate and divorce. The details of this model remain elusive but months after its debut, it has found little favour in the real world.

4. Trinity Law School: Conflict and consternation abound when Trinity Western University’s governmental approval to open a Christian law school was announced. British Columbia lawyers railed against the governors/benchers of the Law Society who voted 21 to 6 to permit Trinity law graduates to article in B.C.

The majority of B.C. lawyers who voted at a special meeting, denounced the governors’ decision to permit Trinity students to article in B.C., alleging that Trinity’s community covenant that only permits sexual relations between married, opposite sex couples amounted to sexual discrimination and a breach of human rights.

The Law Society eventually capitulated and adopted the views of Trinity’s critics. The matter is now before the Court in B.C. and in other courts across Canada where the same position prevailed.

5. Madam Justice Lori Douglas: After several years of missteps, rancour, judicial resignations, and the interference of the Federal Court, Judge Douglas finally put an end to the Canadian Judicial Council’s inquiry into the collection of nude photographs of her placed on the internet by her husband, the late Jack King, a well-regarded family law lawyer in Winnipeg, by announcing her resignation from the bench.

The entire exercise highlighted the flaws of Canada’s system of judicial discipline and Judge Douglas’ resignation was welcome relief from the embarrassing sideshow the inquiry had become.

Here’s looking to 2015 with great anticipation for a new year full of juridical intrigue, legal entanglements, and matrimonial mishaps.

Happy New Year!

Lawdiva aka Georgialee Lang

Political Correctness Leads to “Merry Christmas” Laws

GEO_edited-1Texas governor Rick Perry signed a new law in 2013 called the “Merry Christmas” law. The new law protects Christmas and other holidays in Texas’ public schools from legal challenges.

The law was initiated when Representative Dwayne Bohac learned that his son’s school had erected a “holiday” tree, as the word “Christmas” was banned in the school for fear of attracting litigation. Mr. Bohac remarked that the exclusion of any reference to Christmas at public schools was “political correctness run amok”.

The Christmas controversy, called the “War on Christmas” by Fox News’ Bill O’Reilly, has taken a variety of forms.

In 2005 the City of Boston erected a “holiday tree” that incensed the Nova Scotia farmer who supplied the tree to Boston. He said he would rather put the tree in a wood chipper than put up with misguided political correctness.

Nativity scenes were barred in public schools in New York in 2002, a position that prevailed when the public school authorities were sued.

In 2007 a public school in Ottawa caused alarm when the word “Christmas” was excised from the school choir’s rendition of “Silver Bells” and replaced with the word “festive”. A few years later another public school in Ontario cancelled their Christmas concert and replaced it with a winter craft fair and concert in February.

Major American big-box chain stores have also been subject to criticism. Sears, Home Depot, Kmart, Target, Walmart, and others who left out the word “Christmas” in their marketing material acceded to pressure from customers and Christian lobby groups to reinstate the name of the religious statutory holiday.

Meanwhile Texas has led the way for “Merry Christmas” laws in Alabama, Tennessee, and Missouri with bills awaiting enactment in several other American states.

As for me, I say both “Merry Christmas” and “Happy Hannukkah”.

Lawdiva aka Georgialee Lang

Bill Cosby Plays the Race Card

BarristerLet me put my cards on the table. I never did like Bill Cosby, didn’t think he was funny, and wondered why everyone went ga-ga over him, especially Oprah.

However, I never dreamt in a million years that he was a long-term sex offender, and yes, I believe the accounts told by every victim that has come forward.

I was shocked when Janice Dickinson described what happened to her and will willing to suspend belief, based on her history of drug and alcohol abuse. But when I read 1970’s top black model, Beverly Johnson’s article in the December 2014 Vanity Fair this week, I was overcome with anger and sorrow that this man who was lauded and honoured was an unrepentant rapist.

I didn’t know that he had settled a civil sexual assault case several years ago and had not heard that multiple women had come forward to be witnesses in the civil trial. I sure do understand why he settled the case… a trial would have been pubic, as would the evidence of the parade of thirteen female victims who were prepared to testify that they too had been drugged and assaulted by him.

Cosby has refused to make a public statement until yesterday when he said:

“Let me say this. I only expect the black media to uphold the standards of excellence in journalism and when you do that you have to go in with a neutral mind”.

Yes, Cosby is suggesting that ‘whitey” won’t give him a fair shake…a ridiculous suggestion from a man who thrived in the institutions and bastions of white America, from the University of Massachusetts at Amherst to Temple University, from the Playboy Mansion to overwhelmingly white Hollywood.

Journalists, of every race and colour, report the news. The news about Cosby is that as many as 37 women have come forward with allegations that all sound the same: Cosby drugged and assaulted them.

His wife of many decades, Camille Cosby, also spoke out yesterday saying that the man who has been described in the nation’s newspapers is not the man she knows. On that count I’d say she is correct.

Bill Cosby has managed to fool everyone!

Unlike Canada, where criminal charges can be filed in historical sexual abuse cases, America has a statute of limitations which means that after a certain date, no criminal charges can be filed against Cosby.

Here’s hoping that the civil lawsuit filed against Cosby this week will start a landslide of civil actions.

For all his fame and fortune, Cosby is by all accounts, an abusive, nasty man, the details of which will become clearer as the civil suits proceed. Of course, with the millions Cosby has it would not surprise me if he threw enough money at his “problem” to make it go away, like he did in 2006.

Lawdiva aka Georgialee Lang