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The Practice of Law

Justice vs. The Golden Rule

I have written about the Golden Rule before, but it is so crucial to the functioning of our legal system that it is worth looking at again.

For those of you who are not aware of the Golden Rule because you have made the unforgiveable and unfathomable mistake of not reading everything that I write, I will restate it in its various forms as follows:

  1. Original: “He who has the gold, makes the rules.”
  2. Semi-Enlightened: “He or she who has the gold, makes the rules.”
  3. Current Iteration: “They who have the gold, make the rules.”

Regardless of which version you can subscribe to without being offended, the message remains the same: If you want to know how legal disputes are likely to be resolved, follow the money. Not always – sometimes David beats Goliath – but most of the time.

Back some time ago, one of my clients was quietly running their small business under a registered trademark when a very large corporation which already owned hundreds of trademarks decided that our client’s trademark would be a nifty name for their new product line.  So they started a legal proceeding to have our client’s trademark expunged. Their legal grounds were thin.  Our client was right. The large corporation was wrong, but their pockets were deep. We defended. There was a settlement. They paid our client some money and took over the trademark.

Another time my client applied for a trademark in respect of a small restaurant business that they had operated for several decades in Toronto. A humungous U.S. corporation opposed the application.  Their trademark did have one word in common with our client’s trademark, but no reasonable person would ever have found the two trademarks confusing. We abandoned the application. The cost of fighting it was just not worth it.

And then there was the time that our client was sued for oppression for some corporate acts which were not in fact oppressive. The plaintiff wanted a huge amount of money.  We defended. The client was becoming frustrated. He was not certain that our legal strategy was sound. What, he asked us, is the end game?  We explained to him that our strategy was to make the plaintiff spend a lot of money until he gave up. We did that. Eventually the Plaintiff did give up and settled for a relative pittance.

What do these three anecdotes have in common?  They are all applications of the Golden Rule.

Sometimes we have clients who are searching for fairness and justice. As you have probably heard, it is important to manage client expectations, especially if you want your bills to be paid. As a result of the application of the Golden Rule, wise counsel will make a point of explaining to their clients that we have a legal system, not a justice system. The legal system will result in disputes being resolved. Justice is a whole other matter.

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