THE ADVOCATE 681
VOL. 78 PART 5 SEPTEMBER 2020
A silence settled over the room, like the silence that happens when no
one in a room has any idea what to say. In fact, it was exactly that silence.
Time passed, then Partner took charge. “Alright, it’s good to have gotten
that sorted out. That’s why Paralegal is such an asset to this firm. But we still
have to deal with the original question—is there any defence to this lawsuit?”
Associate took up the challenge. “There are several options. One is to
challenge the Plaintiff’s assertions as to the nature of the Defendant’s
wrongs. In other words, the Plaintiff wronged the Defendant, but not in the
way the Plaintiff says.”
This sounded impressively legal. Everyone waited for Associate to
“The second option is to concede liability and attack the Plaintiff’s damage
claims as inflated, imaginary and spurious.”
Associate was clearly on a roll, dealing with a legal subject matter in a
more than incidental manner.
Partner began to feel threatened. As a senior partner at the Firm, Partner
was in a position that demanded recognition, but in the 32 years since being
called, Partner had actually appeared in court only three times and had
made a serious argument to the court only once. That had not gone well.
This unresolved anxiety made Partner nervous around competent lawyers,
which in turn gave Partner a need to take charge whenever it was remotely
possible to do so. Partner was not a bully; Partner was a civil litigator.7
Partner spoke. “There are some things that are not completely clear to
me. First of all, why should Plaintiff even care about this contest and its
rules? No one is forced to enter the contest, nor is anyone entitled to enter
the contest. People who don’t like the rules don’t have to play.”
Associate took some time to reply, as he flipped some pages and read
quickly. “You might think so, but the Plaintiff asserts that,” Associate said,
then began to read: “‘…the contest has run for many years, has been
enjoyed by many readers, has prescriptively given readers the right to participate
in the contest, and historically the rules to the contest were reasonable.
And the magazine holding the contest is paid for by the readers, who
have no choice as to whether to be subscribers. The Plaintiff asserts this
leads to a contractual and tortious obligation to the readers which cannot be
Partner looked concerned again. “I think Plaintiff has a pretty good point.
But did Plaintiff actually enter the contest?”
Associate replied “Of course not. No one could write a short story that
complied with these rules. That’s Plaintiff’s point.”