Judgments are not law school exams

That means what should matter to the litigants and their lawyers – and does in most instances – is that the result is the more correct result based on the evidence and that the judge or jury did not make an error that provides merit to an appeal. That means, where the trial is by judge alone, that reasons that might get a C or D, were they law school exam answers, may be sufficient for judgment purposes, so long as the litigants accept the result as one the court was entitled to make on the evidence so not subject to reversal or variation on appeal by an appellate court acting properly, even if a different trial judge or jury, acting properly, too, would have been able to make a different decision. The situation is the same for jury instructions.

Nonetheless, putting aside the (significant truth) fact that what is without merit today may not be without merit tomorrow – because laws change, or the meaning of existing laws changes – there’s seemingly nothing that can be done to effectively prevent, or significantly limit, appeals without seeming merit, so long as the appellant doesn’t care about cost consequences. This seems to be the case even where the appellant has a lawyer. That’s unless we’re prepared to adopt the Gowachin legal system from Frank Herbert’s “ConSentiency” universe where “[u]nlike the telecourts where robot judges administer human justice, the Gowachin legal system centers upon the Courtarenain which anyone — defendant, prosecutor, even witnesses — can end up dead as the result of the … workings of Gowachin justice”. I think it’s safe to assume that’s not on the horizon in Canada, even under the current federal administration.

I was going to list a few examples of recent cases where it’s worth wondering what the trial judge was thinking when he or she wrote what they did; on the other hand it’s the holiday season.

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