This story originates with a lawsuit for alleged misrepresentation against a lady who, years earlier, suffered brain damage in an accident. The two lawyers hired to defend her, upon learning the particulars of the case and her disability, assured her a conviction was extremely unlikely. But at trial the defence lawyers proved themselves inept, with insufficient knowledge of the legal issues involved, sloppy trial preparation and disregarding written client instructions from her advocate. THEY FAILED TO PRESENT THEIR CLIENT’S IMPAIRMENT TO THE COURT, they failed to provide a guardian for her as is her right and they failed to cross examine one of the plaintiff’s witnesses, who was a known liar. But more seriously, they failed to question the plaintiffs on why there were TWO versions of a document heavily relied upon by the judge.The outcome was obvious……..guilty as charged.But how, you might ask, is a person with short term memory problems, with difficulty in understanding and processing information and making reasoned decisions and in particular with problems in dealing with numbers – how is such a person supposedly able to plan and execute financial deception ? The simple answer is she is not capable of doing what she was accused of. Her negligent lawyers walked away with their fees paid, she lost her assets and reputation.This story, so far, is not that unusual or uncommon. But wait, there is more.It is now years later and this brain injured lady is seeking redress from the questionable verdict by trying to sue her earlier defence lawyers for negligence. With help from others, evidence is on file with the Court, detailing errors, omissions, negligence and stupidity by her erstwhile lawyers. Not only that, but shortcomings in points of law are documented. The learned judge hearing this lawsuit finds this lady still in need of a litigation guardian and therefore STAYS the action. His decision is based on her mental capacities.So, what we have here is a case where a person gets convicted because her defence lawyers fail to make her mental impairments known to the Court. Then we have the follow-up, where this same person is denied access to the law because of her impairment. We have her convicted without a guardian, now she needs a guardian to proceed with her lawsuit. And finally, we have her convicted of acting with planning and intent, when now the same person is held to be under disability and not capable of fully understanding the legal process. How is that for judicial irrationality? Her impairment did not change, but the application of justice in British Columbia certainly does.For the record, it is very difficult to obtain a litigation guardian in BC, for one, they become responsible for all costs incurred, for another, how does a brain injured person properly present their case ? Incidentally, the BC Human Rights Tribunal refused to seize this as an opportunity to help the disadvantaged. And the Public Guardian and Trustee found this case to be “outside”” their mandate.Lawyers and the guardians of their ethics
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