Losing Tip #11: Distinguishing the Indistinguishable (and a Note on Alphabet Soup)

• Author: Marvin Catzman
• Pages: 305-307

Losing

Tip #

11:

Distinguishing

the

Indistinguishable

(and

a

Note

on

Alphabet

Soup)

Following

the

publication

of

"Losing

Tip No.

10:

When

the Law is

Dead

Against You,"

I

received some

fan

mail from

the Law

Society

of

Upper

Canada.1

In

response,

I

have gone back

to the

drawing board

and now

offer

the

following easier

and

less drastic method

of

dealing with

this

thorny problem.

Remember

our

example: your appeal raises

an

issue

of law

that

has

recently been conclusively decided against

you by the

Supreme Court

of

Canada.

Remember, too, that

the

wrong

way to

deal with this situation

is

to

tell

the

court,

flat

out,

the

name

of the

blockbuster case, lower your

eyes

to the

ground, assume

a

defeated posture,

and

wait

for the

sword

to

slide

ineluctably between your

shoulder

blades.

This

is the

hallmark

of

a

bad

loser.

It

will only serve

to

embarrass your opponent, whose client

will wonder

why she has to pay

good money

to her

dumb lawyer,

who

missed this devastating precedent.

Mr.

Justice

Marvin Catzman, Court

of

Appeal

for

Ontario.

Well,

not

"fan mail,"

exactly.

It was a

letter

from

Senior Discipline Counsel, threat-

ening

to

report

me to the

Canadian

Judicial

Council unless

I

came

up

with some

suggestion,

short

of

making

up

fictitious

cases,

for

dealing with

the

situation.

305

Justice

Marvin

Catzman"

•\