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Do Sleeping Judges Make Good Law?

After losing at trial with their clients on the hook for $1 million or more judgment, a law firm appealed the trial result to the Ontario Court of Appeal claiming:

"The appellants have moved in this court to admit fresh affidavit evidence showing that the trial judge was unable to follow the evidence because he fell asleep repeatedly during the trial.

The fresh evidence consists of five affidavits authored by appellants' trial counsel and others. These affidavits suggest the trial judge fell asleep frequently but for only very brief periods of time."

Now I wouldn't signal to the Court of Appeal that my trial conduct had been so boring that it put a senior Jurist to sleep, even for brief periods.

I might have kept that particular detail from the public.

But how did that work for the appellant?

Well, the Court of Appeal wasn't particularly impressed.

At trial, the appellants deliberately did not raise with the trial judge their concern that he might have been sleeping.

Instead they made a deliberate tactical decision to in effect - as respondent's counsel put it - "hedge their bets".

Instead of confronting the trial judge, after discussions among appellants' counsel (including a senior litigator at the firm who remained at the office and was not directly involved in the trial per se), they made a deliberate decision not to raise the issue.

As Mr. Bradley Sherman put it in his affidavit, they decided to "wait and see how things played out".

Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial."

Appeal dismissed, with costs of $35,000.

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Full post as published by Misleading Advertising Law on June 17, 2008 (boomark / email).