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“This is how words work”

It’s not every day you get called a misogynist and a white supremacist by another lawyer, but I guess we should probably get used to the fact that social media is the best solvent for rational discussion since the invention of road rage.

It all began innocently enough — as these things do — with a rather curious Twitter post from Atrisha Lewis (@atrishalewis), a bencher of the Ontario Law Society, apparently complaining about how hard it is to be a bencher when others have other views than you do (see below).

What surprised me about this Tweet was the nonsensical idea that your role in an organization (such as a law society) should in any way be more difficult just because others have a different view of some issues than you do. This is even more surprising when that person is a lawyer. Last I checked, lawyers are supposed to disagree. That’s kind of our job.

So I asked the question.

I thought this was fair. Rather mild, perhaps. Certainly not offensive or rude.

She didn’t respond. But apparently this rather innocuous comment was sufficiently provocative to encourage Ontario lawyer Jennifer Mathers McHenry to spring into action. You can see how that unfolds below.

Well that escalated quickly, as they say. But let’s examine this dialogue carefully.

We start with McHenry’s equating social science with actual science and arguing that not all opinions have equal validity. There are numerous flaws in that “logic”, but let’s just identify two: first, who gets to decide what is “valid”? We’re not talking about a falsifiable scientific fact that can be proven, after all. You can’t run a DNA test to determine whether something or someone is racist or sexist.

Even scientific “facts” are simply the latest hypothesis which has not been disproven. The impact hypothesis (which postulated the sudden extinction of dinosaurs due to meteor impact) was ridiculed for years until being accepted as “fact”.

Second, even if someone has a different view of the “facts”, how does that make them prima facie unacceptable, offensive or unpalatable to work with in the context of a large organization like a law society? Is it really the case that everyone has to share your specific beliefs before you feel comfortable working with them? I could see this working well in a Trudeau government, but in most places where people are actually encouraged to think, this seems rather short-sighted. This was the sub-text of my original, un-answered question to Ms. Lewis.

But McHenry is either oblivious to the points I’m trying to make, or doesn’t care. I suspect it’s both. Because she quickly concludes that I am apparently a white supremacist and a misogynist. Why? Because I disagree with her. Obviously if I disagree with her on the “fact” of systemic discrimination, there simply is no other option: I must be a woman-hating racist.

I’m sure my wife will be surprised to hear that. Not to mention my mother, my sister, my co-workers, and other lawyers (both male and female) with whom I have a good working relationship.

I must be a woman-hating racist. I’m sure my wife will be surprised to hear that.

I attempt to point out to McHenry that I’m neither a racist nor a misogynist, but to no avail. She unpacks her straw man and proceeds to attack it with abandon. Apparently I now believe that “white dudes are naturally better” (pretty sure I didn’t say this). She also — regretfully — informs me that she hates to “throw labels on you”, but (and this is my favourite part) “that’s what those words mean and how words work”.

And there you have it, one of the most illogical twitter broadsides since the invention of both Twitter and illogic. Apparently McHenry believes she is my superior in scientific facts, words, and how words work. Thus endeth the lesson.

In fairness, I must confess I did not take “how words work” in Law School. I tended towards the core studies like contracts and torts. But fair enough, I will take McHenry’s admonition to heart and google “words and how they work” at my next opportunity. Alas, I will not consult Twitter. I don’t think it would help.

In fairness, I must confess I did not take “how words work” in Law School. I tended towards the core studies like contracts and torts.

There are serious points to be made here, however.

The first is that ideology is no replacement for thought. My initial tweet was a real attempt to understand why a difference of opinion between individuals should be a barrier to working together. If social justice advocates really want to effect positive change, they should be focusing on engagement, not censure.

The second is that name calling is the least persuasive strategy one can pursue. Did McHenry honestly think that by implying I was a racist she could convince me to agree with her? This is a common backfire effect from the Left: they just can’t help calling other people names. You must either agree with them entirely, or be branded a racist, a sexist, a homophobe — whatever the epithet of the day may be. In 2016 I didn’t understand how a buffoon like Trump could possibly be elected. But I understand it now.

Lastly, I think Twitter should be renamed “Mixed Feelings”, because I don’t know anyone on Twitter who doesn’t have mixed feelings about the platform. It’s equal parts cesspool and electronic brain-trust. In the long run I expect many will tire of the casual abuse by those with little to say other than repeat tribal mantras. For Twitter, as with most social media, curation is the name of the game.

Social media is the ultimate car window: a thin pane of glass that emboldens us to insult strangers. But unlike shouting at other drivers who may or may not be able to hear us, social media records and amplifies our messages, perhaps in ways we didn’t intend or did not foresee. And as soon as your message is sent or posted, you may not like the ultimate result.

Ultimately, that is how words work.

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What we can learn from 12 Angry Men

Can a 1957 black-and-white movie tell us anything about how to have tough conversations in 2020?

It’s a testament to 12 Angry Men that it is considered one of the finest courtroom dramas ever made, despite showing the inside of a courtroom for about 15 seconds. Apart from the raw drama, however, the events depicted in the movie (and the play which preceded it, which continues to be staged) is a treasure trove for lovers of persuasive technique and human psychology.

Henry Fonda told you no cream in his coffee

The background is well known. Twelve male jurors are sequestered following a criminal trial in which an 18-year-old immigrant boy is accused of murdering his father. Let’s acknowledge that this movie was made in the 1950s and the cast are all white men over the age of 35. That has nothing to do with the plot, or the point, so get over it. This isn’t a feminist studies class.

“There were eleven votes for “guilty.” It’s not easy for me to raise my hand and send a boy off to die without talking about it first.”

The scene opens with the jurors filing into the jury room and beginning deliberations. As each is asked his opinion on the case, it is clear that it is a unanimous guilty verdict save for one man — Juror 8 (Henry Fonda). Only Juror 8 is prepared to offer a not-guilty vote, angering the other eleven jurors who see the case as comprehensively made out. Over the next 90 minutes, Juror 8, through respectful and deliberate analysis (and, let’s face it, some eye-catching tricks like the one in the video below) attracts more support to his position until he secures a unanimous not guilty vote.

Always bring a knife to jury deliberations

So what can we learn from 12 Angry Men?

The first lesson is this: the legal system is rife with human error, laziness, and potentially even malfeasance. The movie depicts incompetent defence counsel, a bored judge, and lying or mistaken witnesses. All of these factors are alive and well in any justice system, and although we like to pretend they don’t exist, they are only too real, and affect outcomes every day.

Juror 8 is the star of the show, however. And Fonda’s depiction of Juror 8 demonstrates the hardship of being a contrarian, of swimming against the tide, of expressing an unpopular opinion. By the end of the movie it’s easy to forget that Juror 8 starts this journey utterly alone, subject to criticism, isolated from his peers. How much easier is it in real life to simply go along with the crowd, stay quiet, and say nothing? It’s hard. Very hard. But one of the key lessons of 12 Angry Men is that this sort of social coercion harms everyone, but it harms the truth most of all.

How does Juror 8 begin his quest to convince 11 other jurors to change their vote? By simply engaging, and doing so in a humble manner. He doesn’t argue with the majority, he simply begins a conversation in as non-confrontational a manner as possible, hoping that dialogue will allow him to read the room, understand the personalities, and see where he might find allies.

It’s no accident that in a key scene, Juror 9 recognizes the difficulty of Juror’s 8 position and changes his vote to not guilty: “Well, it’s not easy to stand alone against the ridicule of others. He gambled for support and I gave it to him.”

“Well, it’s not easy to stand alone against the ridicule of others. He gambled for support and I gave it to him.”

As Juror 8 wins over his fellow jurors one at a time, we’re treated to a review of every form of logical fallacy, prejudice, bias, laziness and motivated reasoning that ever plagued a room full of decision-makers. But we’re also shown how one man can persuade others, not through hectoring and insulting, but through an appeal to facts and reason, while recognizing that the viewpoints of others are to be respected even if they may be erroneous. There’s clearly a lesson here if one wishes to learn it.

Lest we think that Juror 8 is infallible or all-knowing, we watch as the other jurors begin to question the evidence and add to the factors which cast doubt on the defendant’s guilt. Juror 8 at one point admits that he had forgotten a certain fact. Another juror — one of the last “guilty” hold-outs, identifies a key point about a witness which finally convinces him of the defendant’s innocence.

Once again, Juror 8 does not attempt to rally support to his viewpoint through threats or intimidation or force of argument. He allow each juror to formulate their own reasons for voting not guilty, and come to that conclusion on their own. This is the paradox of persuasion — you can rarely persuade others to accept something that they have not already convinced themselves to accept.

If 12 Angry Men stands for anything, it stands for the idea that the view of the majority only means that most people agree — not that they’re right.

So what does 12 Angry Men tell us about disagreement and persuasion in 2020? Be humble. Focus on engagement. Back up your arguments with facts and logic. Identify and guard against biases, in yourself and others. And have courage. It’s always going to be easier to go along with the crowd, not raise a fuss, be polite. But discomfort and unpopularity are sometimes the price you pay for having convictions. Don’t give them up without a fight. If 12 Angry Men stands for anything, it stands for the idea that the view of the majority only means that most people agree — not that they’re right.

RAF

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Is lack of legal aid funding for trans-rights complaints really the problem? Really?

The Martin Luther King of Trans Rights, Jessica Yaniv

The legal community, like every community, has a diverse range of opinions on important issues. Some of those opinions are good, some bad, and some unbelievably stupid. In the November issue of Canadian Lawyer Magazine we were all treated to an opinion that falls into this last category.

In an article that has already aged very badly (link below) Adrienne Smith, identified as a Vancouver lawyer and “transgender human rights advocate”, asserts that the problem with the human rights tribunal’s decision in the Jessica Yaniv complaint against numerous waxing salons primarily operated by East Indian women was a “step backward” and highlights the need for free legal services for trans-rights warriors in human rights tribunals.

(https://www.canadianlawyermag.com/news/general/b.c.-brazilian-waxing-case-a-step-backward-for-trans-human-rights-cases-says-lawyer/321582)

Smith says the B.C. Human Rights Tribunal had a recent record of wins for the trans community. “This case really overturns that process. And I think it does so because the applicant didn’t have the benefit of counsel, which highlights the whole problem of Legal Aid funding for human rights matters in British Columbia and arguably across the country,” they say.

That’s a lot of bullshit to inhale at one time so let’s take it point by point.

To start, Yaniv was found by the human rights tribunal member to have brought her complaints in bad faith and at least partly due to racial bigotry (Decision, para. 125). Full decision: http://www.bchrt.bc.ca/shareddocs/decisions/2019/oct/222_Yaniv_v_Various_Waxing_Salons_No_2_2019_BCHRT_222.pdf

Ms. Yaniv has a grievance against certain ethnic and cultural groups in the lower mainland of BC which she perceives are failing to assimilate effectively into what she considers “Canadian” culture. These complaints are one way in which she is attempting to make this point and punish members of these groups.

Second, it doesn’t matter how good your lawyer is if your intention is to bring a baseless case and you are motivated by racial animus. You’re going to lose. And you should lose.

Third, there’s nothing noble about attempting to use the human rights system to punish people because they won’t wax your scrotum. Martin Luther King wanted equal access to schools and housing. He wasn’t asking anyone to wax his — and I’ll be respectful here — brows, or shine his shoes. He understood that big social change required earnestness and determination. Equating Yaniv with some kind of trans social warrior is unmitigated nonsense.

Fourth, there’s no “chill” on “trans human rights litigation” as a result of this decision, as claimed by Smith. What’s the proof of this? How about the fact that Yaniv has now filed a new complaint and is starting this whole process over again. https://bc.ctvnews.ca/trans-activist-files-another-human-rights-complaint-over-waxing-refusal-1.4757496

Adrienne Smith is, I’m sure, a wonderful person and an incredible lawyer. Okay, actually I don’t know either of those things. But based upon the opinions expressed by Smith in Canadian Lawyer, I can only assume that Smith (I’m just going to go with “Smith” because I’m not up to date on the latest pronoun protocol) is so blinded by ideological passion that Smith can’t think about this like a lawyer and see that Smith’s opinion does no credit to Smith, or trans rights, or human rights, or anything else. We’re all human beings, and hopefully as human beings — and hopefully logical thinkers — we can step outside our ideological bubble and call the balls and strikes as we see them. And yes, I think there’s a pun in there somewhere.

As I’ve said before, if we want a human rights tribunal that actually functions, we have to call out abusers of the system like Yaniv. She (he/ her / them / it / nous / vous / ils / elles / ons) is not the hill trans activists should die on. Unthinking support for anyone who pretends to stand for your cause is not really support. It’s tribalism. Activists like Smith should be the first ones to condemn the abuse of the human rights process, not point to a spurious claim and say that the claimant lost because taxpayers should fund the legal fees of these sorts of racially-motivated vendettas. If you want to be a social justice warrior, that’s your business. But you don’t have a right to do it on my dime, or anyone else’s.

RAF

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Pulling the Teeth of Lawyers in the name of Social Justice

The legal profession is one of the few jobs left where your role is to unapologetically fight. And fighting means throwing punches, taking punches, and having the courage of your convictions.

But we now find ourselves at a legal and societal crossroads, where the social pressure to conform to social justice initiatives is set to undermine the independence of lawyers and rob them of their most prized possession — the ability to fight. To fight without fear, without favour, and without wondering whether there will be repercussions for taking an unpopular stance.

Since I wrote a post on the danger of the Law Society’s re-education efforts for B.C. Lawyers ( http://litigator.blog/re-education-in-the-name-of-social-justice/) I have heard from at least two lawyers who have said they do not wish to be publicly associated with an attempt to resist these efforts, even though they strongly disagree with the Law Society’s re-education campaign. Why? Fear. They fear being “blackballed” or bringing negative exposure to the organizations with which they are affiliated. This is the clearest example yet of how once-independent professionals can be cowed by social and regulatory pressure into towing a line they do not believe in.

But is this the kind of society we want? One where lawyers are afraid of their own professional regulator? Where lawyers censor themselves, afraid to take unpopular positions in public? And if lawyers are afraid to take unpopular positions in public, who else will?

This is a new feeling for many lawyers, but criminal defence lawyers know what it’s like to stand against societal disapproval. Fortunately, we have tough, skilled defence lawyers in Canada who know the value of fearless advocacy. Marie Henein is best known for defending Jian Ghomeshi and earning him an acquittal on all charges of sexual assault in 2016. She understands that real advocacy starts with a willingness to fight hard for your client, regardless of the political or social forces in play.

“We weren’t making cupcakes, we were protecting people’s constitutional rights and trying to save people from a loss of liberty,” she said. “There really wasn’t a lot of time to sugar-coat constructive criticism.” Marie Henein

Our Law Societies seem to have forgotten that being an effective advocate means being an independent advocate. The Ontario Law Society attempted to coerce its lawyers into developing a “statement of principles” that would have required them to sign on to a social justice initiative that was unrelated to the practice of law. The B.C. Law Society is now attempting to do the same with an aboriginal “cultural competency training” re-education campaign: https://www.cbc.ca/news/canada/british-columbia/bc-law-society-lawyers-indigenous-1.5389177

But ask yourself this question: if you’ve been charged with a criminal offence — let’s say it’s a criminal offence against an aboriginal person — how would you feel if every single person involved in your trial — including your own lawyer — had been indoctrinated into a collective guilt mind-set that saw all aboriginal people as victims of oppression, and you as the oppressor? How would you feel about your chances then? Would you feel like you were being given a fair trial?

Social Justice initiatives are fine when they are voluntary. But they become a form of authoritarianism when they compromise individual liberty and cast doubt on the independence of lawyers and the justice system. The fact that some of my colleagues are afraid of publicly speaking against “cultural competence training” is all I need to know that this initiative compromises the independence of lawyers. Apart from that, it is ethically wrong and socially corrosive. Lawyers are part of the justice system, and for that justice system to be seen as fair and impartial, lawyers must also be seen to be independent, untainted by politics, social policy, or social justice. As Marie Henein recently said:

“No person in this country should ever walk into a courtroom and feel like they are fighting their elected government or any sort of political factors at all,” she said.

“There are times you agree with what happens in a court, there are times you don’t, and that’s fine. But what you don’t do is you don’t put your finger and try to weigh in on the scales of justice.”

The Law Society of B.C. is not putting their finger on the scales of justice, but they are firmly putting an ideological thumb on all B.C. lawyers in an attempt to force them into historical re-education. If the Law Society feels that lawyers should read history, they can put a polite message on their Annual Report suggesting that lawyers do so. But mandatory re-education is not part of the Law Society’s mandate, and threatens to compromise every lawyer’s ability to act in the best interests of all clients and the justice system as a whole.