LAWYERS MUST TRY CASES IN COURT (WITH EVIDENCE)!

I’ve become distressed at a “worrying trend” which sees some lawyers trying their cases in the media rather than the courts.

I don’t like it. I’m especially concerned when I see inexperienced lawyers seemingly spending more time in front of TV cameras or radio microphones than at their desks working on their cases. I can’t shake a nagging feeling priorities are skewed.

Now, don’t get me wrong. In my opinion there’s no legal impediment to any lawyer discussing details of his/her cases in any public forum. I consider the notorious “sub judice” rule, as defined by many, to be a hoax. But, in my opinion, media trials should be avoided by lawyers (clients can do whatever they wish) because the publicity does the client no good and only advertises lawyers and their professional ambitions.

Once in 41 years have I discussed one of “my” cases in media. It happened before I received instructions to sue; the matter was one of public interest (beyond the cause of action) and the request for interview came from an adopted “nephew” hence an offer I couldn’t refuse. Immediately after that radio interview I was instructed to sue so spoke not another word to media. But that’s just me and maybe I’m an old fashioned Supreme Court hack who hasn’t been able to move with the times.  Maybe….

But recent inflammatory remarks by lawyers involved after losing a constitutional claim against a Primary School for asking parents of a five year old student to cut her hair before permitting entry to school had me shaking my head. I’ve noted the more cautious reactions of Jamaicans for Justice and the Children’s Advocate.

The case is, as Education Minister Karl Samuda appropriately remarked “a sensitive” one which may very well have exposed archaic and bigoted practices in our public school system (or, worse, conscious or unconscious personal prejudice against some lifestyles). But a close look at the legal issues had me wondering whether the parents/lawyers’ disappointment at the result had more to do with lawyers’ George-Foreman-in-Zaire approach to the case than any support for discrimination or prejudice by the courts which is the natural inference from  lawyers’ intemperate post-judgment remarks.

The Gleaner quoted the losing Attorney-at-Law: “It’s a sad day, as you can see, for Rastafarians [and] dreadlocks-wearing black people in this country. I respect the decision of the court” and further reported:

The couple’s attorney, Isat Buchanan, insisted the child’s constitutional rights to freedom of expression, the right to religion, equity, equality before the law and access to education, among others, were breached

But the Washington Post, in its story posted on July 31, reported:

The Virgos say they do not identify as Rastafarian, but they say that wearing dreadlocks is an expression of their identity. All Virgo family members wear that natural hairstyle, as do many Jamaicans who identify as Rastafarian.

So, legally and constitutionally speaking, what has this family’s lifestyle to do with freedom of religion?  Even if the Virgos are Rastafarian and want their child to join that religion, the school rules don’t trespass on the child’s “freedom of religion” (does she have a religion at five?) only on her parents’ right (which, without more, is NOT a constitutional right) to have their child style her hair as they wish.

The school alleged the rule was for “hygiene” reasons. This has been quoted with condemnation in the public sphere to mean the school was making sickening personal allegations against the five year old; black people in general; and “natural” hair (whatever that is). But, it’s not unreasonable for a school to impose general restrictions on ALL students attending for the prevention of “hygiene” problems especially if that school has had prior bad experience in that regard. So why are we vilifying the school principal and spinning the school’s rule (of general application) about hair into an attack on black people? What was the EVIDENCE?

Like everybody, I haven’t seen the Court’s reasons (they haven’t been produced) which is another basis why wild inflammatory reviews by lawyers with a professional axe to grind appear to me wholly inappropriate. Lawyers should know law suits are decided based on EVIDENCE not rhetoric. How exactly do school rules about hair length or style infringe parents’ right to expression? Does freedom of expression mean one student is free to disobey school rules?

Did the EVIDENCE disclose the rule applied to all students? The constitutional right is freedom from DISCRIMINATION because of one’s religion, race, colour etc. Once the rule applies to all students, it cannot be in breach of the Constitution no matter how distasteful it may be.

The right to education at a public school isn’t a right to be educated at Kensington Primary.  The Constitution establishes every child’s right “to publicly funded tuition in a public educational institution at the pre-primary and primary levels”.

Did the Claimant lead EVIDENCE to establish this rule was government policy applicable to all primary schools so that a primary school education was denied THIS child? Or was the court only told about Kensington’s policy? Why is this being slanted by semantic gymnastics into discrimination against black people? Was EVIDENCE led as to the percentage of black students at Kensington? Was the young lady refused entry because she’s black? Do only black people have “natural” or long hair? Are dreadlocks “natural” or styled?

Lawyers are not, as many seem to believe, special people. We don’t acquire superior citizenship because of degrees. Lawyers, like most others in public and private service, are problem solvers. We solve legal problems applying the same philosophy and effort as mechanics solving mechanical problems, doctors solving medical problems and gardeners solving landscaping problems. Lawyers’ job is to add value to the problem solving process.

So clients present with a simple problem. Their five year old daughter was refused entry to a public school unless her hair is cut. Lawyers’ task is to solve THAT problem not (except as a last resort) to go off on esoteric tilting at constitutional windmills that may bring lawyers fame and future fortune but not solve clients’ problem. The child likes the school and is doing well. Why’d a problem solver want to promote pointless contention with that school?

Was a kinder, gentler approach to school or Ministry available to solve the problem in a less contentious, public way?  If those failed was there a simpler process (assuming “Kensington or bust” was the client’s instruction)? Did lawyers comb the Education Act for an unpretentious route (e.g. formal appeal to the Minister) or to “find” a breach of duty by Kensington so groundwork (some technical conditions needed) could be laid for a claim for Mandamus (forcing Kensington to perform its public duty) or to enforce a legitimate expectation? What about simple breach of contract, negligence (breach of duty of care) or abuse of public office claims? What EVIDENCE did lawyers collect and present to the court to establish DISCRIMINATION?

And this post-judgment ranting and raving alleging the child is “at the mercy of the school” because the injunction was lifted is just rubbish. Contrast the graceful way Emile Leiba commented after winning (substantially) JAMBAR’s appeal against an adverse constitutional ruling and Peter Champagnie’s elegant public response to the recent conviction of a client in a Parish Court.

Did lawyers think they couldn’t lose? Have they ever visited the race track? I recommend all lawyers visit a race track as a part of Law School curriculum. They’ll learn the difficult and expensive lesson that ANY horse can lose.

Since a win presents no problem lawyers should always assume they’ll lose. In a case like this where lawyers have ELECTED to go the arcane route, papers should be prepared in advance to file a generally worded appeal and seek an urgent temporary injunction pending appeal. While one team member is collecting the judgment another should be parked outside the Appeal Court Registry with papers ready for filing upon receipt of a signal that it’s bad news.

This has been done before.

If young lawyers are lost, confused or unsure how to proceed, there’s an admirable tradition in the profession that makes senior counsel’s sage advice available upon request. Just ask.

Maybe the Appeal Court refuses the injunction against Kensington pending appeal but at least lawyers have tried to solve clients’ problem instead of prancing about before cameras/mics turning a simple dispute into some sort of “Black Lives Matter” rallying cry. THAT does no good for the young girl, her future education or her parents’ concerns about suppression of their child’s lifestyle. It WILL make the lawyers appear to be civil rights icons.

But, in this world, NOTHING is as it appears.

Peace and Love

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6 Responses to “LAWYERS MUST TRY CASES IN COURT (WITH EVIDENCE)!”

  1. Carlyle Thompson Says:

    Grateful for your wise words.

  2. ICYMI in Jamaica: Much Ado About Dreadlocks, INDECOM Chief Steps Down, and JUTC Needs to Shape Up: August 2, 2020 – Petchary's Blog Says:

    […] been more “hot air” than action. More anon. Lawyer/columnist Gordon Robinson makes some cogent points here on the matter and disapproves of younger lawyers spending so much time in front of TV […]

  3. The Grasshopper Says:

    Reblogged this on Jamaica: Political Economy and commented:
    I thought that lawyers were regarded as one of the noble professions. Maybe, as with many things, it worth doing a reworking of social values to reflect modern conditions. Not meaning to stamp on anyone’s corns, but this commentary makes one wonder, again, about the ethics of those who are supposedly mired in ethics in their professional pursuits.

  4. #COVID19Chronicles-111: August 3, 2020-LAWYERS MUST TRY CASES IN COURT (WITH EVIDENCE)! | Jamaica: Political Economy Says:

    […] LAWYERS MUST TRY CASES IN COURT (WITH EVIDENCE)! […]

  5. jamaicajinpete Says:

    Thanks for this enlightening response which demonstrates intellectual depth and professional maturity. Do continue to be instructive in your discourse, and perhaps, in the process, egos will slowly give way to penchant for research and humility.

  6. Pete R. Porter Says:

    This should be required reading for every ambitious “new” lawyer.

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