In the early 1990s, the late George C. Miller of what was then Outerbridge & Miller, was the best lawyer in town. The chain-smoking Miller, with rolled-up sleeves, open-neck collar and scuffed Aussie rubber-soled boots, was a general practitioner extraordinaire.
He almost single-handedly invented entertainment law for Toronto’s budding film industry. He was the trusted adviser to Rolex, which secured one of Canada’s first successful private prosecutions of watch counterfeiters. He acted for Canadian purchasers of Scottish Highlands cottage properties, navigating the invisible title caveats of Roman Law. He dictated thousands of “whereases” (his word for commercial agreements) to his secretary, who took down every word in Pitman. Clients loved him.
Miller’s client, Eric Peterson, was not a lawyer, but an actor who played one on TV. As Leon Robinovitch, the firebrand lawyer from Toronto’s Ward’s Island, Eric’s character held together the fictional law partnership in CBC’s Street Legal. Miller served as the show’s legal consultant. During the late ’80s and early ’90s, the law Canadians saw on TV was “George’s law.” It was no mean feat holding the line against the steamy plots of L.A. Law, which ran concurrently. The depiction of the Canadian legal system on Street Legal was, subject to dramatic licence, true to life.
Street Legal’s producers turned to Miller because he was a lawyer they knew — through his work in the movie distribution business. What they did not know was he would do more than provide the legal portion of the show’s “bible” (a dossier of information that provides continuity and authenticity). He imprinted the series with the understanding that the lawyer’s worth, whether to obtain justice for a client or to gain the upper hand in a corporate power play, stemmed from being good at the elements of a craft. Homework, not the cut of an Armani suit, always won the day.
I share with you my memory of him in my last installment of the Accidental Mentor, because he was a most unlikely lawyer to look up to. I know Miller was the best lawyer, partly because I’ve met many of Canada’s pantheon of so-called great lawyers. Unlike many of the greats, who are good at being great, George was great at being good.
For him, each new day was pregnant with the possibility of coming up with a new way to meet his clients’ legal needs. He was an almost primordial collection of lawyer raw materials assembled under one roof. Miller defied imitation. More than any lawyer I’ve encountered, he debunked the profession’s affectation that successful senior lawyers have to be severe and obsessive.
Miller never stopped working, because he did not consider what he did as work. Rather, he was one of those serial multi-taskers who drifted effortlessly from files to phone calls to gassing with staff. Watching him work was like a piece of light entertainment.
In the days when the Art Gallery of Ontario had a cinema, he’d duck out for Eric Rohmer matinées and return to the office filled with banter about the French director’s film theory. (Like most practitioners of farce, Rohmer built plot lines based on misunderstandings. Rohmer’s dialogue was a depiction of different characters thinking out loud and not listening to each other too carefully. This was somehow strikingly relevant to the work in a law office.)
Miller was never one to lament why new lawyers could not be more like him (to paraphrase Henry Higgins’ refrain in My Fair Lady). He relied on the juniors in his firm to keep his mind active. He taught us the practice of law by asking us how to do things. We knew we got the answer wrong if he kept asking questions. In so doing, he taught us some aspects of legal practice should not be changed.
One of these immutable truths is the importance of thoroughly reviewing and understanding documents. The reason is simple. Sometimes the written word doesn’t say what you, the reader, expect it to say. Indeed, in a world where language skills plumb new depths, words often do not say what their writer intends. In law, the written word is still king. Just consider the parole evidence rule, where collateral evidence cannot be introduced to contradict a written agreement. Or the rules of statutory interpretation, which severely limit the use of the Hansard legislative debate records in the interpretation of legislation.
“Reading, writing, and talking are the only three things we do,” was how Miller reduced the function of the lawyer. “Cut out reading and you’re only two thirds of a lawyer.”
Miller’s excellence as a lawyer came not from his intelligence and mastery of law, but from his humility in the face of facts coming from outside the law office. It is a skill often confused with common sense, but in many ways common sense’s polar opposite.
Common sense often involves the substitution of the tangible record with a subjective (and often incorrect) opinion based on past experience. Our eyes dance over the tops of words on a page. We keep wanting to make them say more or less than what they actually say. He passed away before e-discovery and document management software became popular. I’m sure he would have found it hard to square our client obligations with delegating the review of documents to an overseas outsourcing company or to a silicon chip. One way to avoid reading a document is to have someone or something do it for you.
The biggest pressure to make hasty assumptions about the contents of legal documents comes from clients. The pressure to gain an upper hand on an opponent or transactional counterpart can be intense. To help clients achieve their goals, we are tempted to describe the shadows cast by objects and events, as opposed to describing the facts themselves.
In criminal defence, where the lawyer’s craft is gauged by the ability to sow doubt and attack the quality of police investigation, perhaps a certain amount of shadow-casting is inevitable. The Law Society of Upper Canada’s Nov. 28, 2013, appellate decision in Law Society of Upper Canada v. Groia, at paragraph 235, held that lawyers should not mount a defence based on prosecutorial misconduct unless they are made “in good faith and have a reasonable basis. A bona fide belief is insufficient; it gives too much licence to irresponsible counsel with sincere but nevertheless unsupportable suspicions of opposing counsel.” Work with reality and all its counter-intuitive contingencies, not with plausible myths.
I look back on my memories of George and search for his formula to being a good lawyer. I default to the existential pleasantry that all our relationships with people and things start with Plato’s Allegory of the Cave.
You may recall from your undergraduate studies the philosopher’s tale about prisoners shielded from sunlight in the lower chamber of a cave. They become accustomed to seeing only shadows, and all of reality becomes contingent and transient. They are downright hostile to a freed comrade who returns to tell them about the bright sun, and about the real objects casting shadows.
From the unmet billable-hour target to the debt-laden insecurity of new law grads, the pressures of our occupation keep us from seeing we, too, can be prisoners in a type of cave. We start believing our own stories, and are too busy, too driven, or too lazy to check the facts.
By recognizing oneself as a cave man, one ceases to be one. Solve that paradox, and you’ll learn the secret to Miller’s success. What made him better than any lawyer I’ve known was his ability to recognize isolation from the world was an inevitable part of a lawyer’s existence. The words used by people outside the law office are what’s real, not the interpretation given by lawyers — no more than Eric Petersen was a good lawyer by depicting one on TV. If Miller were here to read this article, I expect he’d laugh and tell me to stop trying so hard to be clever. So, good reader, stop I will.