Ian Mulgrew: Medicare trial turns B.C. courtroom into a playing field

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The long-running B.C. constitutional trial over the provincial provision of Medicare has focused a klieg light on the worst of the legal profession’s foibles — its love of sport.

Lawyers are competitive by nature, and their sporting theory of justice is never more on display than when they enter a courtroom.

The spring in their step, the glint in their eye — ah, the very joy they feel preparing for the courtroom is bonded to the prospect of playing a game with a set of complicated rules and procedures that frustrate the average person.

They relish the procedural guidelines and the arcane language of legal protocol with the baseball fan’s smug satisfaction of understanding what’s going on even when the players are just standing around.

The rules are always in foreground — available to be invoked and manipulated, to delay and to score points, to earn more money and to win.

After a leisurely spring break, the Medicare trial will resume with Victoria seeking another adjournment so the plaintiffs can “organize their case appropriately over the next 60 days to allow for a more efficient court process.”

That would forestall witnesses such as retiring Health Minister Terry Lake from taking the stand or experts providing embarrassing testimony during an election.

Hmmm, no, couldn’t be connected. What voter wants to hear about the country’s worst medical waiting lists and the effects of 16 years of Liberal policies before casting a ballot?

Where once we had trial by bloody combat, now we have expensive lengthy proceedings that bleed the loser dry financially. We have replaced the barbaric broadsword with more civilized verbal rapiers.

Lawyers often forget they are officers of the court and deal with the rules of law and procedure exactly as the professional football coach does backfield motion and player-substitution regulations.

In this challenge, the issue has become more about the strictures governing litigation and less about how long and at what cost people are waiting for needed medical services, the constitution and its requirements.

Witness have been turned into partisans pure and simple, experts have had their credentials subjected to ridiculous last-minute scrutiny and their opinions parsed rather than duly considered and weighed.

B.C. Supreme Court Justice John Steeves looks as if he is conscientiously deciding the contest as it is presented to him, according to the rules and procedures.

He certainly could not be accused of being involved in an independent search for the truth — he is an umpire, eager to decide upon objections and hold counsel to the rules of the game, but the parties should fight it out without his interference: Pick a horse!

An Interior lawyer reminded me of a famous speech a century ago by the Dean of Harvard Law School, Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice.”

He said the entire profession — lawyers, judges, law teachers — had become so mesmerized with the stimulation of the contest they had forgotten what mattered.

For some disputes, Pound thought some trials were essential, but for many disputes, trials by adversarial contest should go the way of ancient trial by blood.

The late conservative U.S. Chief Justice Warren Burger believed Pound’s progressive ideas were the seeds of the modern mediation movement.

“Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people,” Burger said in 1984. “To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected.”

This case emphasizes that point — the provision of health care through constitutionally sound laws should not be resolved in an Us versus Them forum under archaic constraints.

“We ought to be healers — healers of conflicts,” Burger said to the bar, using an especially apt metaphor.

“Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”

The answer can be heard loud and clear in the Law Courts of Vancouver.