Nureyev and Astaire Would Have Loved It
Rudolf Nureyev and Fred Astaire, if they were alive, would have applauded wildly until their palms burned if they had the pleasure of sitting in the Museum Room of Osgoode Hall on July 18, 2012. Witness Jim Zibarros did the two-step like he was born to dance. Shifting forward, backward, to the left, to the right, contorting his evidence to catch the drift and bend accordingly, it was a virtuoso performance. He changed his positions so fast, that describing his act as greased lightening would have been an understatement. Bravo! Yet his spectacular footwork as a senior litigator donning the costume of a witness may have warmed the hearts of the three-person Panel judging Harry Kopyto’s character but left Harry cold. Instead of blowing kisses at Zibarros, Kopyto went to war.
The setting? Kopyto is on trial for his professional life. The charge? Poor character, in part because he assisted (for free) a client whom Zibarros had sued. The potential sentence? Refusal of a licence to work as a paralegal. The evidence? Zibarros, after six months of unsuccessfully trying to get Kopyto to force a deal on his client, decided to turn in Kopyto, (who seeks to be grandparented as a paralegal,) to the Law Society for unauthorized practice for doing a lawyer’s work.
There are other interesting details such as the fact that Harry was asked to take the case for his client pro bono by a member of the Ontario Legislature who is a lawyer and a former cabinet minister. But the story is basic and simple. Even so, Zibarros did his best to complicate it as he slip-slided across the dance-floor exhibiting an eye-catching dexterity that drove the Law Society prosecutors who called him as a witness into a state of ecstatic glee and the Panel Chair Margot Blight into a state of collegial admiration.
Here are only a few examples of Zibarros’ contortions on the dance floor:
- In the morning, he testified that he didn’t know at all that he had a duty to turn Harry in for unauthorized practice; in the afternoon, he shifted his storyline to just not knowing the Rule’s specific wording;
- In the morning, he testified that Harry was aggressive and confrontational in his dealings with him; later, he admitted Harry was pleasant and they worked well together;
- In the morning, he said Harry refused to identify his last name during several conversations; later, Harry gave his last name as soon as he was asked;
- In the morning, his only complaint about Harry’s work was that Harry might have advised his client against a good settlement offer; in the afternoon, Harry could have co-operated more with some of the litigation procedures.
Zibarros all Over the Floor
Zibarros was all over the floor, occasionally losing his balance, correcting his posture, taking a step forward, taking two steps back, taking a false step, doing a jig here, a tap dance there and throwing in a pirouette all to wow the crowd and playing to the audience. Exactly what you would expect from an expert civil litigator and lecturer who used to work for the same mega-law firm where the Chair of the Panel, Margot Blight, now hangs her hat. Kopyto tripped Zibarros up several times although the smirk on Zibarros’ face never waned—a sign of a truly great performance artist camoflauging his missteps.
There were several times when he danced his way right into a corner. Yes, he had no evidence to support his theory that Kopyto misadvised his client. Yes, Kopyto’s client benefited from Harry’s assistance. Yes, Kopyto had no obligation to give him his client’s contact information. And, of course, there were several embarrasing faux pas and stumblings, such as wrongly stating that Harry did not have a client/paralegal privilege and admitting that he had Harry’s client’s cell phone number when he accused Harry of withholding it. Still, the cocky stage smile never left Zibarros’ face. It was like the frozen grin painted on a clown’s face.
Throughout the hearing, which was arbitrarily limited by Panel Chair Blight to one day, shortened further to 3:30 p.m. (because Zibarros had a plane to catch) and a lengthy lunch hour, Kopyto appealed to Chair Blight to rein in Zibarros’ rambling, time-consuming and confrontational responses. She refused to do so. Kopyto complained that Zibarros’ repetitive speeches, lengthy solo performances, and transparent efforts to divert Kopyto from his line of questioning by frequent proclamations that Harry’s questions were not germane or relevant, cut into Harry’s cross-examination time. Still, Blight sat on her hands, giving Zibarros unlimited space for his free-form performance.
Actually, there was more to Blight’s conduct. She allowed Zibarros not only to ramble but to make lengthy, hostile attacks against Harry. Rather then restraining Zibarros, Blight, with uninhibited pleasure at his attacks, blamed Harry for asking him hypothetical questions. With such an appreciative audience, Zibarros confidently continued to rebuff several of Harry’s questions by proclaiming he did not have to answer them. When told again that the Panel would make that decision, Blight remained silent but smiling. At one point, Kopyto commented on the mutual chuckles between Zibarros and Blight asking to be let in on the joke. No answer
Kopyto Describes Blight’s Accusations as Bovine Feces
As the clock struck 3:30 p.m., Zibarros anticipated that he would finally be able to complete his pas de deux with Harry and take his final bow. Kopyto, however had just filed another exhibit to question Zibarros on and was in mid-flight when he was interrupted by Blight who wanted him to estimate how much more time he needed for questioning. He said he couldn’t. Blight then accused him of repetition and disorganization, even though Kopyto’s questions always resulted in different answers and Kopyto conducted his cross-examination, as is his right, in a scattergun approach rather than topically. Blight, growing impatient, insisted on a timeline. Kopyto finally exploded in anger, expressing his response in graphic, albeit inappropriate terms, using a word that referred to the feces of a bovine to describe Blight’s comments. It was not a word ordinarily used in quasi-judicial proceedings but it reflected Harry’s genuinely felt consternation at her refusal to control Zibarros. Her brutal case management skills for which she is famous had already been applied to truncate Kopyto right to cross-examine other witnesses. Her efforts to ram through the hearings without regard to Harry’s right to fully confront the witnesses testifying against him were transparent.
In a fit of dismay, Kopyto withdrew from the podium and slunk into his chair in defiance of Blight’s repeated efforts to limit his cross-examination. But then he realized that an apology for his language was in order, which he readily gave. However, Blight started reciting her stock mantra on Harry’s delays again. First she said that he was late for the hearing—not true, he was in his seat at 9:30 a.m.; second, she endorsed the prosecutor’s view that he could have started his cross-examination on a previous day when Zibarros gave his evidence for the Law Society. In so ruling, she ignored that Zibarros was presented as a surprise witness with Harry having only a few hours notice and with even the Law Society prosecutors agreeing to an adjournment so Harry could prepare properly. In addition she overlooked her own lateness in returning from a lunch period that stretched into one and a half hours. Kopyto protested vehemently. She did not respond. He then raised his voice as Blight continued her dressing down of him. By this time, there was enough action and volume in the Museum Room at Osgoode Hall to rattle the leftover bones of any dinosaurs which the name of the room suggests may have called it their home in a previous incarnation. However, calmness returned momentarily. But only momentarily. Just long enough for Blight to continue her admonition of Kopyto and conclude her comment with a ruling (without consulting her co-panelists) that limited Harry to an arbitrarily determined one hour of additional cross-examination on a subsequent date. (Such generosity!)
Blight Usurps Panel’s Function
It was at that point that Kopyto unexpectedly and dramatically returned to the podium and frontally accused Blight of making that ruling without consulting her co-panelists. He angrily accused her of taking personal charge of his hearing and making unilateral decisions in the name of the other Panel members whose views meant nothing to her. This accusation stunned Blight who did not expect such a bold retort from Kopyto. Clearly shaken by Kopyto’s deft surprising move, her voice almost quivering, Blight, fishing in her mind for a clever thought, responded by stating that it was common for the Chair of a Panel to rule on procedural matters. An insipid response to a powerful blow! After all, until a final decision is rendered by a Panel, many key decisions relating to the presentation of evidence might be designated as essentially procedural. These decisions can be deceptively significant decisions such as determining the scope and extent of cross-examination; deciding what evidence is admissible; deciding if the public will be allowed to attend a hearing; determining who can act as a representative, etc. In one ruling, Blight even included general character witnesses in an exclusion order meaning that no one who attended the hearings will be allowed to testify.
The devil is in the details. Procedural restrictions can suffocate substantive rights. Blight insists on usurping in her own person the right to make critical decisions without consulting the other two Panel members. Deciding if Kopyto can cross-examine further is not a minor issue. It touches on the fundamental right of natural justice. So unsettling was Blight’s tepid effort to minimize its importance and to defend her imperious interpretation of her summary powers that Panel member Baljit Sikand felt compelled to assure Harry, in only the second or third intervention made by him during the lengthy hearings, that Harry will be treated fairly by the Panel.
Blight in a Mania
But how can Harry rely on Sikand’s assurance when Blight has ignored him and the other Panel member routinely in making important decisions throughout the hearing? If he and his other co-panelist are just window-dressing for Blight, how can they participate fully in the hearings as they are required to do?
Blight is in a mania for case-management. She is sacrificing fairness in the interest of expediency. She is running interference for the Law Society head honchos putting paid to the debt she owes them for having enough confidence in her to appoint her to manage Kopyto after he blew away two lesser adept Panels. The shape-shifting prosecutors have rechoreographed their case, with some witnesses dropped and others added. Blight is now directing the case by messaging the prosecution, setting, at its insistence, seven hearing days in September and allowing hostile witnesses to speechify, etc. The hearing is now a runaway train chug-a-lugging along under the direct command of conductor Blight. Choo! Choo! Pick up speed! Oh, yes—with tunnel vision through the mountain of evidence.
When Justice is a Façade, even Small Victories Resonate
Kopyto, who Blight initially threatened to cut off at the end of the hearing day on July 18th, did win one measly hour of additional time to cross-examine Zibarros. So the finale to Zibarros’ well-rehearsed choreography has yet to come. Zibarros will have to put on his dancing shoes again for a reappearance at the Law Society production for sixty more minutes on a date to be announced. The ghost of Nureyev and Astaire can rouse themselves from their slumber one more time. Surely they will cheer themselves hoarse in admiration for the fancy footwork of such a redoubtable performer. Take a bow Jim Zibarros—you own the floor!