Bout One: June 6, 2013—Kopyto v Heakes

Harry Kopyto is back before the Law Society on Thursday August 29th and Friday August 30, 2013.  Harry’s clients will testify about their cases on those days.  Your solidarity and support for them as well as for Harry who will also be making his reply to his cross-examination is vital.  Please be there.

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Did Kopyto Have What it Takes to Go the Distance?

Everyone knew that the cross-examination of Harry Kopyto starting June 6, 2013 was going to be a bare-knuckle spectacle.  Anticipation was in the air. The gate set a new record.  The audience in the Museum Room in Osgoode Hall in downtown Toronto had looked forward to this nail-biter stretching over two days—June 6th and 19,2013—since the posters were pasted on the University Avenue poles. There was a buzz in the air.  Would Susan Heakes, prosecuting Harry for the cabal of backroom boys in the Law Society’s smoke-filled backrooms, strike a knock-out punch proving Harry had poor moral character? Would Kopyto, shadow-boxing during 19 days of personal testimony, be brought down to his knees by a hit below the belt?  The purse—Harry’s right to be grandparented as a paralegal—hung in the balance. The three-judge panel sat in the centre of the first row around the ring, scorecards and markers at the ready.  What would the final call be?

True, Kopyto’s rise to this main event had not come easy.  Throughout his personal testimony, Harry had been deflecting unexpected hooks, especially from the right. The three judges themselves, on occasion, pounced into the ring during the qualifying matches, walloping Harry from behind and ruling against him on technicalities.    But Kopyto, a street fighter from way back, always scrambled to get back on his feet before the count of ten.

This match would be decisive.  The betting was heavy.  The big bucks were placed on Harry’s adversary.  A loss would leave Harry in shambles—a near career-buster. If Kopyto was knocked out or threw in the towel, his opponent would relish the moment for the whole of her life. The Law Society had a home crowd backing it.  Did Kopyto have what it takes to go the distance?

 

No Touching Knuckles With Heakes

There was no touching knuckles when the bell announced the first round.  Susan Heakes, leaving behind in her corner her sparring partner and second, Anne-Katherine Dionne, who was cheering her on, made a bum’s rush into centre ring, swinging hard and fast with blood in her eyes.  Three of Heakes’ big time promoters, usually too shy to show their faces, sat ringside, not wanting to miss any of the action. They were heavy betters.  They wanted to see blood—Harry’s blood.

Heakes, all pumped up, legs shuffling back and forth, launched her attack with a ferocious series of hard body punches, starting by hitting Kopyto below the belt.  Ouch!  Kopyto clearly was caught off balance.  When is the last time you read a law book cover to cover?  Pow!  Why do you argue your cases in the media? Pow!  Why didn’t you pay your costs orders? Pow!  Why don’t you attend Law Society educational seminars?  Pow!  Pow!  Pow!

 

Kopyto Kisses the Canvas

Kopyto, now taking a series of sharp jabs on the chin, was not able to get off. Stumbling, he kissed the canvas. The crowd roared. It looked like he was going down for the count.  Would Harry regain his balance before the count of ten?  It was clear that he was caught off guard by Heakes’ brawling slugs.  It took him a very long minute to clamber back up on his feet. And then, regaining full consciousness, his mind raced.  Feeling more caution than fear, he stared his opponent down while the judges leaned forward on the edge of their seats to see how much damage was done.

What was Harry to do?  First, Harry needed to get his mind around the fact that he was being sand-bagged by hooks he had not prepared to deflect. What did reading law books cover to cover have to do with his moral character, the only issue in the match?  Especially since most law books are used as reference works and not designed to be read cover to cover.  And what was this about attending Law Society seminars?  The Law Society, disdainful of Harry’s status as a “paralegal candidate,” won’t even let him get an identity card or commissioner’s stamp, let alone provide him with notice of or admit him to its educational seminars.

 

Queensberry Rules Be Damned!

Harry believed the match was to be decided either by a knockout punch against his moral character or by a majority or unanimous decision ruling on each of the elements that constituted moral character—honesty, courage, empathy and candidness.  This is the definition that the sanctioning body gives to “good character” which Harry had to prove to win the prize.  The Law Society was bound by its own rules to apply this definition in evaluating Harry’s performance. Yet Heakes’ bolo punches were all over the place, more for show than power, looking to strike at any apparent weakness in Harry’s performance that could then be used to detract the judges’ attention from its main focus.

Heakes realized that she could not frontally undermine Harry’s moral character which he had established solidly in his qualifying bouts.  (Heakes even admitted that Harry had an “illustrious career” after an earlier bout.) So she decided to risk fouls, throw wild punches and fight dirty, Marquess of Queensberry rules be damned!

 

Kopyto Punches above his weight

Kopyto finally realized that this was going to be ten rounds of bare-knuckle boxing. Instinctively, his skills, honed over four decades in the ring, kicked in.  He moved swiftly in for the clinch, punching well above his weight. The last book he read cover to cover? There were two—Harris on Wrongful Dismissal was one. “But that book is years old,” Heakes scoffed, thinking she had Kopyto on the ropes.  Then, Kopyto counterpunched giving the name of the other book: Pashukanis: Selected Writings in Marxism and the Law, the mention of which stunned her momentarily.  Heakes didn’t expect this comeback.  It was her turn to be dazed.  Obviously, she never heard of the book.  She backed off into a neutral corner.  Obviously, she was unaware that the essays covered seminal writings between 1924 and 1936 that had a major influence on legal philosophy.  (Pashukanis described the origins of the legal profession.  Lawyers identified with and represented the wealthiest “plaintiffs” who were merchants seeking to aggrandize their clients’ wealth and power in the earliest trading centres in Europe. Little has changed in the mentality of elitist lawyers over the five centuries since then.)  Obviously, this showed the depth of Harry’s training compared to Heakes’ shallow thinking and amateurish sparring.  While pretending that she was the top dog, Heakes’ façade shattered with Harry’s hit.  She looked like a Palooka to the paying audience who loudly cheered on Harry, fully recovered by now.

Kopyto’s failure to pay costs orders?  Another pity-pat punch from Heakes.  Kopyto hit back with a left hook, “If you can afford it,” underlining the astronomical tally of costs orders, now close to $50,000, that he has already been ordered to pay as penalties for losing earlier bouts in the series. Then, the bell rang. Time out to nurse cuts and bruises until the next round.

 

Heakes’ Wrecking Crew Style

The fight resumed. Heakes rushed to the centre ring for some fierce infighting on the issue of Harry’s use of the media to complement his bouts with Big Law in the courts.  Using a combination of a jab, a hook and a straight right, she sequentially attacked Kopyto for trying his cases in the press, for not advising his clients that they could get bad publicity and for directing his clients to go public.  None of this related to bringing down Kopyto’s moral character.  But it was part of the classic wrecking crew style of Heakes’ no-holds-barred approach.

Kopyto stood his ground.  He realized that Heakes’ elitist stance assumed:

  1. that Harry’s clients were morons who didn’t know that publicity could be negative;
  2. that Harry’s clients were being led around by him like sheep and had no say on whether they wanted their cases publicized;
  3. that legal issues were too complex to be publicly discussed in the media;
  4. that judges were too weak to resist being influenced by public opinion.

 

Kapow! Take That, Susan Heakes!

In an unexpected counterattack on Heakes, Kopyto moved in to land some punches of his own and block the blows against his clients. He defended his clients who, he testified, did not have to be told that publicity could be negative any more than having to be told to walk on their feet instead of their heads when they get out of bed in the morning. He pointed out that his clients decided for themselves whether they wanted publicity. They weren’t blind sheep incapable of making their own decisions.

In a near knock-out punch that left Heakes on the ropes, Harry pointed out how one of his clients, Mohammed Attiah, an Egyptian Muslim, was fired from his job as a nuclear scientist by the federal government as a security risk following the September 11, 2001 events.  Attiah decided to go public with his lawsuit with Harry’s help.  With screaming headlines and first-item cross-country television news coverage, the deeply embarrassed federal government retreated in full flight.  They admitted that its shoddy investigation was biased against Attiah’s Egyptian and Islamic background and quickly rehired him with full compensation.  Kapow!  Take that, Susan Heakes!  Kopyto parried Heakes’ shots at him so adroitly that he left her buckling and bruised, weaving punch drunk around the ring, only to be saved by the bell.  The crowd booed as Heakes, seeing stars, stumbled back to her stool.

The next round saw Heakes recovered but still shaken, her cuts and bruises deftly touched up by Dionne. She reverted to her roughhousing persona, the triumphalist bullying strategy that characterizes her fighting stance. Harry bobbed and weaved effortlessly around the ring to avoid her slugs. Still, she kept trying to jab him.  Have you paid taxes?  Have you accounted to financial contributors to your defence committee?  Do you keep complete financial records for your practice? Do you report your income accurately?

 

It Never Was about the Money

Harry deflected the attacks as follows. “I overestimate my income to avoid hassles with Revenue Canada. How can I pay $1.3 million dollars in outstanding taxes that I have accumulated because of my disbarment on false charges since 1989?  I have spent more on my disbursements to defend myself than I have received in Defence Committee funds. I retain all my financial records even though I have not yet tallied up the figures.”  Kopyto, who represents virtually anyone who approaches him for legal representation according to their ability to pay or for free, blocked most of Heakes’ blows.  Her efforts to picture him as financially dishonest fell flat.  For Harry, it never was about money like it is with the Law Society, a price-fixing monopoly protecting lawyers’ unaffordable fees from competing affordable paralegals who want to crash the gate.  They just can’t figure Harry out.

 

The Game Is Over When the Game is Over

The next round focused on Heakes’ efforts to malign the significance of Harry’s clients’ cases. Going toe-to-toe with him on a series of cases, she accused him of promoting worthless claims, subjecting clients to the stress of litigation and not giving them closure.  Kopyto’s comeback?

Over the years, Kopyto has noticed that the guys who always tell their opponents to give up the fight, ostensibly to seek closure, to move on with their lives, are at the top of the heap. They didn’t seek closure—they sought to be winners, and now, having weakened their opponents by fighting dirty and cashing out, discourage them from hanging in for the full ten rounds.  They make it sound like they really care, like they want to save you from the stress of losing or wasting your energy on a fight that you can’t win.  Of course, all they really care about is the purse.  Kopyto knows that the game isn’t over until the game is over. Kopyto knows that nothing is for sure in the game of law.  A heavily favoured fighter can fall through the ropes with one powerful haymaker from an unexpected direction.

Kopyto thought of responding to Heakes by giving an example of an unexpected result in one of his cases. A client of his, a penniless teenage server working in his dining club brought mega-giant corporate tycoon Frank Stronach to his knees when he kept pestering her while he was a little tipsy.  The Toronto Star put that David-and-Goliath sexual harassment suit on its front page. Wow! Did Frank ever pay dearly for coming on to her! You never can predict the outcome when you stand up for yourself, even against Big Money and Big Law. But Harry pulled this punch, saving this story for his rebuttal on August 29th.

 

The Courts are Full of Hucksters

Still, in the game’s spirit, Kopyto let go with some fancy footwork. Is litigation stressful?  Maybe, but not as stressful as injustice.  Not as stressful as doing nothing. Does he deny his clients’ closure?  “Your closure means accepting abuse without fighting back. For my clients, there is no closure without justice. No justice, no peace.”  What about your losing cases?  “Fighting for justice and not achieving it is better than living your life on your knees. At least, my clients retain their dignity—they get heard.  Their stories are told. And some of them score against all odds.”

Here, Harry pulled another punch. He was thinking of another client, Velma Demerson, who was jailed in 1939 for being “incorrigible”. Her crime?  She married a Chinese man. Yet more than 60 years later, she won a stunning legal victory against the Ontario government, an official apology and near-universal admiration for her determination to obtain justice.  She had to knock on a half a dozen lawyers’ doors, all of whom told her she needed closure, until she found Harry, who told her she needed justice. He helped her get it through an overwhelmingly successful legal and political campaign that he headed. Real closure comes with justice, not with resignation. Velma became a cause célèbre, but this story too Kopyto held back, saving it for later.

 

Sometimes, You Can Even Get Justice in a Courtroom

Kopyto admits losing some of his cases. If you’re going to fight the good fight, you’re not going to win every bout.  But Harry’s cases are not generally about winning or losing.  Injustice must be combatted even when the referees ignore fouls and seldom issue disqualifications against rated favourites who rabbit-punch, elbow, low-blow, headbutt and armbar in a clinch.  The judicial ring is full of hucksters and feints. Hang around the gym long enough and you will hear all kinds of stories. Take, for example, the mega-companies who refuse to pay legitimate multi-million dollar invoices for purchased goods without any real legal excuse. They invest the improperly withheld money at a high rate of return or use it in their business and benefit by paying the artificially low Courts of Justice Act interest rate while their cases are tied up in court until they are finally ordered to pay up.  They lose and win at the same time. The courts are full of hucksters.  All kinds of contradictions are played out in the courts.  Sometimes, you can even get justice in a courtroom.

 

Heakes—a Pompous Pugilist

The final round on June 6th saw Heakes accuse Harry Kopyto of putting lawyer Joseph Markin at risk for associating with him.  The Law Society had ordered Markin not to associate with Kopyto, banned years earlier from the raft of top-tier fighters in the legal profession.  Joe, who has poor health and no law office, agreed to act as counsel for Harry’s clients and was disciplined for doing so. Still, Joe had to make a living and Harry referred cases to him which Joe needed to survive financially. Yet here we have the Law Society, trying to cut Joe off from his source of income while accusing Harry of threatening Joe’s livelihood!  It was for situations like this that the word “rich” was invented.  This is the kind of bureaucratic indifference, characterized by mindless rule-following and ignoring the big picture that Hannah Arendt condemned in her memorable phrase, “the banality of evil.”  Harry’s retort to Heakes, “It was Joe’s decision to accept referrals from me,” barely scratched the hollowness of Heakes’ hypocrisy. Still, her double-think was transparent to the paying public.

Loud and brash, without style or substance, Heakes revealed herself on June 6th as a pompous pugilist, full of vinegar but bereft of principle, crude in her logic and blind to reality.  But does reality really count for much in this showfight before the trio of judges who will rule on Harry’s professional fate?  Or is there a fix?

Harry survived the blistering attack on him as he retreated to his corner at the end of the day, unlaced his gloves and ambled out of the ring to the shower room. He knew that he had not been knocked out during the first bout held on June 6th.  But the second bout was less than two weeks away. What would happen then?

 

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