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Saturday, March 1, 2003

BY-PRODUCTS OF THE LAW Stikeman Elliott, Tom Berger, Scott Turow

March 1, 2003,  Books in Canada

Stikeman Elliott
The First Fifty Years
by Richard W. Pound
McGill-Queen's University Press
ISBN: 0773524118

One Man's Justice
A Life in the Law
by Thomas R. Berger
Douglas & MacIntyr
ISBN: 1550549197

Reversible Errors
by Scott Turow
HarperCollins Publishers Ltd.
ISBN: 0002005301

Aspiring lawyers used to be told that the practice of law was no way to become rich. Lawyers have generally vied with doctors for the honour of having the best paid occupation, but, though many lawyers have made a very good living, lawyers who grew rich generally did so from business interests outside the practice of law itself.

Yet in 1952, the first year of his partnership with Fraser Elliott, Heward Stikeman, not yet 40, made about one million dollars from their practice. Later Stikeman and Elliott became very rich indeed from business interests outside the practice of law, particularly from CAE, which dominates the market for aircraft simulators for pilot training. But the interest of Stikeman Elliott is in the first few chapters, which describe how Stikeman and Elliott managed to build their extraordinarily lucrative practice.

Stikeman, born in in Montreal in 1913, worked as a lawyer for the Department of National Revenue from 1939 to 1946. From 1943 he was Assistant Deputy Minister of National Revenue. The Commissioner of Income Tax, from 1943 Deputy Minister of National Revenue, was Colin Fraser Elliott, the father of Roy Fraser Elliott, Stikeman's future partner. In the small society of Ottawa Stikeman became a friend of the father and the son.

Roy Fraser Elliott, born in Ottawa in 1921, graduated from Queen's in 1943 and Osgoode Hall Law School in 1946. After a year at Harvard he joined, at Stikeman's bidding, the firm Stikeman had gone to on returning to Montreal in 1946 after his war service at the Department of National Revenue.

War-time demands and post-war hopes had greatly increased the level and complexity of taxation. Stikeman had gained unparalleled knowledge of the legislation, some of which he helped to draft, and of its administration. Stikeman Elliott started out as a tax law boutique with only four lawyers. Good advice or successful representation could save clients lots of money and Stikeman and Elliott were paid accordingly. There were few other tax lawyers and none who could claim the knowledge and connections of Stikeman and Elliott.

Left wing critics would see in this something crooked: high priced talent helping corporations avoid paying their fair share. In fact the opposite is true. Overreaching governments risked stifling the economy with high taxes and were forced to try to mitigate the economic damages through   complicated legislation. These produced their own economic distortions and a lucrative but finally unproductive service industry of tax advice. Getting in on the beginning of this industry allowed Stikeman and Elliott to become rich through the practice of law.

Stikeman Elliott's advantage in tax law could not last forever and the firm gradually expanded into general business law and has now become a big full service firm much like all the others, whatever Stikeman Elliott may say about its special values. But as late as the early seventies Stikeman and Elliott were the only partners, doling out salaries and bonuses to their hard working and talented associates as they saw fit.

In the 1950's the old law schools did not produce lawyers fast enough to keep pace with the growth of the country, its economy and the complications of the law. There was work to be had for the asking and Stikeman and Elliott were never shy about asking. Even today the market for legal services is not so efficient that getting work does not count as much as doing it well, to say nothing of pricing it competitively. But the corporations that sustain the big firms are not so tied to old connections and will shop around. Careers such as Stikeman and Elliott enjoyed are now impossible.

Richard Pound is known to Canadians as a member of the International Olympic Committee. Like a good sport he has compiled the book his firm wanted though no one will want to read it through. It is surely no a coincidence that it is published by McGill-Queen's University Press and Pound is Chancellor of McGill. They have published duller and less worthy books. Hundreds of people who have worked at the firm are kindly mentioned. Big deals and big cases are briefly recognised. The opening of new offices in Toronto, Ottawa, London and beyond is chronicled. Those who left the firm early, unless like John Turner and Donald Johnston they went on to distinguished careers in politics, are sometimes curtly dismissed. There is nothing on the firms finances after 1970.

Tom Berger has not grown rich from the practice of law. Its attraction for him has been influence rather than money. Berger is best known to Canadians for the Mackenzie Valley Pipeline Inquiry and for resigning from the British Columbia Supreme Court in 1983 after public statements he made urging the inclusion of native rights in the constitution lead to an investigation by the Canadian Judicial Council. British Columbians may remember him as the leader of the provincial NDP for a brief period before he lost his seat and retired from electoral politics in 1969.

One Man's Justice is a memoir of Berger's favorite cases. Only incidentally does it recount his life beyond the cases. Berger had a commendable distaste for the phony side of politics:

...the proclamation of slogans....the constant meetings, speeches, the time spent in "working the room," meeting people you'd never met before and ("Nice to see you again") and would never meet again."
But he was as keen as any politician to make his mark on the life of the country; he simply wanted to do it in the courts rather than in a legislature. He would not have to persuade the people to support him, just a few judges.

Berger says nothing about his work as a judge. He is a strict believer in the rule that judges have their say in their reasons from the bench and should say no more than that. He breaches no client confidentiality describing his cases off the bench. But he whinges that others did it and got away with it in defending himself against the allegation that by urging the inclusion of native rights in the constitution he had breached the rule that judges should not speak out on political issues. It is a longstanding and sound rule made only more important by the increased political importance of the courts since the Charter. The Canadian Judicial Council did not recommend his removal from the bench. But Berger was fed up with the controversy. He had always been uncertain about wanting to be a judge, and finally he saw his hopes of sitting on the Court of Appeal or Supreme Court of Canada—where he fancied he could make law rather than just decide individual cases—fading. He flatters himself that his intervention helped get native rights in the constitution.

Berger likes to believe that in the cases he recounts he was "engaged in the pursuit of justice". Such a belief may give an advocate the confidence and energy to carry through a case to a successful conclusion. But it can also blind an advocate to the messiness of life, which the law exists to sort out. Berger's accounts of his cases are recapitulations of his advocacy. His clients were always right and if they did not win they should have. The only criminals Berger knew in an extensive criminal practice were pitiful or innocuous fellow who simply had their own subculture. Though he goes on too long about some of his cases one never feels one gets the full story.

On native rights Berger is a true believer. Fellow true believers will be grateful for his advocacy. Those unsure what to make of it all will learn nothing from him.

Scott Turow has grown rich from writing mystery novels about the law. The money he has made from novels like Presumed Innocent, turned into a successful movie starring Harrison Ford, has allowed him to do pro bono work that has extended his experience of criminal law and provided raw material for further novels. He has acted for prisoners on death row and prosecuted corrupt judges, both themes in his latest novel.

In Reversible Errors Rommy Gandolph, a dim witted petty criminal, is, in 2001, awaiting execution for a triple murder that took place on July 4, 1991. Arthur Raven, a former prosecutor now settled into a comfortable civil litigation practice, is conscripted by the Federal Court of Appeals to make one last attempt to save Gandolph. Rommy gave a full and videotaped confession. It looks like a simple open and shut case. But not for long. The pace and complication of the story,  which never loses plausibility, is impressive. The original investigating policeman, prosecutor and judge become involved. Divergent perspectives and interests are developed. One grows impatient for the next twist as Turow recounts the dreary amours of his principal characters at unnecessary length. The dialogue can be disconcerting. Turow seems to be trying to update the hard boiled idioms of film noir. Either that or cops and  criminals and lawyers in Chicago, where Turow practices, learned to talk at the movies.

Reversible Errors is not a novel about capital punishment. Turow set out his reasoned pragmatic opposition to capital punishment in a New Yorker article in January. In Reversible Errors it is simply a background fact. For the crime novelist the end of capital punishment would be a loss, draining some of the life and death drama from the genre.

The practice of law is not about winning or losing or changing the law without bothering with politics. It is the hard and generally well paid work of resolving people's conflicts according to settled rules so that they will not fight in the streets. Drama, wealth and power are occasional by-products of the resulting exposure to all aspects of human life.