Friday 16 February 2024
I’ll always remember the day when I stepped into the managing partner’s office, and he said, “Nick, you’re going to trial.” A rush of adrenaline and nerves flushed through my body.
This was a two-day small claims court trial where I was responsible for defending an action brought by homeowners against a general contractor.
Half the battle was trying to understand the nuts and bolts of construction practices. I had to spend some time Googling basic carpentry, plumbing and electrical work to familiarize myself with industry standards and Code requirements. You think I would be a handyman by now!
On the legal side of things, I had to work out a case theory. To start with, I read the whole file and jotted down notes about things I felt were important. I did this more times than I care to admit, but I wanted to ensure that I understood the ins and outs of the case and was fully prepared.
The days turned into weeks of trial prep. Countless hours were spent reviewing contracts, emails, photos and invoices to piece together the case like a puzzle. I had to think strategically about what evidence I wanted to introduce as exhibits to support our defence. This became a lot easier once I finally had my theory of the case after reviewing the law--a homeowner must give a contractor a reasonable opportunity to remediate any alleged deficiencies in its work before claiming damages. This is what I built the case around.
The day finally came. I walked into the courthouse with my banker's box full of evidence, a book of authorities, and a list of questions I prepared for the witnesses. I had never been so nervous in my life. However, I felt more settled once things got underway. I thought, I know the case now I just have to defend it.
Throughout the two-day small claims trial, I had the opportunity to make an opening statement by setting out a roadmap for the deputy judge, cross-examine witnesses, engage in direct examination of our own witnesses, make evidentiary objections where I saw fit, and make closing submissions to the deputy judge by tying the evidence together with the law.
The most important lesson I learned from this experience is that you need to be attentive and adaptable throughout the trial and change your strategy at times, depending on the answers given by witnesses. For example, I had to cross-examine a witness on the fly that I did not have any questions prepared for based on new evidence that came to light that I knew I had to challenge. I asked briefly for the Court’s indulgence and then started my cross, which felt natural because I had my theory and knew what to question the witness about.
The deputy judge reserved his decision. Regardless of the result, I feel proud and confident knowing I was trusted to put forth the best possible defence for the client. I now have my first trial under my belt, and it only took being an articling student for it to happen.
by Nicholas T.
Friday 5 January 2024
As an articling student, you can assume day-to-day carriage of your own small claims court matters. This provides a great opportunity for you to understand the “big picture” of the litigation process by working on a file from start to finish.
Litigation keeps you on your toes by constantly changing your schedule; therefore, it is important to know the timelines outlined in the Rules so you do not miss deadlines. However, it is equally important to be familiar with the SCJ Practice Directions because procedures vary based on where the proceeding will occur. You want to ensure your materials are accepted by the relevant court.
Once this was done, I prepared an initial opinion and budget for the client. At first, I thought this would be a daunting task. I had a general understanding of the standard of care medical professionals are held to; however, I did not go to medical school. How could I decipher medical terminology and procedures? Thankfully, all I needed was my legal background and guidance from the supervising lawyer to draft an opinion regarding exposure on liability and damages. I even took it to another level by recommending the next steps to the client.
The next thing I knew, a settlement conference was scheduled. These are court appearances with all parties where a deputy judge gives an opinion on the claim in an attempt to resolve the matter or at least narrow down the issues.
The day of, I was nervous because I did not know what to expect. What if I was asked something I did not have an answer for? Nonetheless, I felt prepared because I knew the facts of the case and had brief notes on the legal submissions I would make.
At the end of the day, the claim settled! This was a great feeling because it hinged on the legal analysis provided to the client and submitted to the court. Nothing feels better than a deputy judge agreeing with your view of the law. Now, I feel more confident in tackling my next court appearance. Good thing, because I am appearing at another settlement conference at the end of the month.
Monday 18 December 2023
When I told a friend that I would be articling at a full-service litigation firm in the heart of Toronto, he did not hesitate to respond with “Enjoy standing behind the photocopier all day!” While that may be many people’s perception of what students do in firms like MB, here it could not be further from the truth.
My very first assignment, 30 minutes into articling, involved communication with multiple parties in the process of drafting a Statement of Claim.
While nervous at first, I knew the detailed training I received was more than sufficient but more importantly that help is ALWAYS one phone call away (or within a few feet).
Fast forward to today, and looking back at that moment, I can clearly see how many different skills I learned in such a short time. Even though it's only been a few months, I’ve had a chance to be involved in and observe multiple court proceedings including pre-trials, Examinations for Discovery and even Trials, one all the way in London, almost 200 kilometres away from my desk.
On any given day, I may walk into the office with my morning coffee and draft claims where we represent the plaintiff. Then after lunch, I shift gears and now I’m drafting documents or preparing for proceedings where we represent the defendant. This diversity makes it possible to learn not just the craft of litigation but to experience both sides of it without the need to change seats! It also makes it possible to learn by doing in a more effective manner. It feels kind of like being a double agent because when I write a defense, I can not only refer to all our resources but also what I was thinking when I was drafting a Statement of Claim and vice versa. Something only possible in this setting.
All of this is while the work is meaningful. Coming from the legal aid clinical environment, I was used to seeing the impact of my work both in the form of the matters proceeding and the direct impact it had on clients. While there is a learning curve with literally anything a student does, the lawyers are more than happy to go the extra mile by letting the student do the tasks and be a part of the process. Making students a part of the file allows us to see how certain actions taken lead to the next steps. We can also see the different paths a particular case can go with the benefit of the context I got from being involved in its previous stages.
A benefit of being a student in this environment is there is plenty of room for self-reflection. I remember how long it took me to draft my first Statement of Claim versus how much faster I am today. That said, I still need to figure out where they keep the photocopier because I’ve been too busy becoming a litigator!
Tuesday 12 December 2023
One of the largest courtrooms I’ve seen. A large, vaulted roof. There must have been eight rows of three long pews. 24 in all. Each one was filled from end to end with people, to the point where they lined up along the back wall as well. In total, there were likely around 150 people in that room. Sitting in the back, I recognized 90% of them, if not more. Why?
Because today was jury selection. And before jury selection, we prepared for everyone.In the week before the fateful day, I had been assigned a new and interesting task. One of the files was heading toward a jury trial and didn’t seem like it was going to settle. To prepare, I had to find out everything I could about the potential jurors. I needed to create a list that the lawyers could use to determine which jurors they wanted and which they did not.
The first step was going to the Courthouse and getting the jury list. They kept it short and sweet; all I had was the potential jurors’ name and a “listed occupation” (which ranged from “student” to “government”). In short, not much to go on.
So, I spent two days looking through the list. LinkedIn, Instagram, Facebook, TikTok, or good old-fashioned Google. Really, anywhere I thought they could be. With some names, I found nothing. Maybe an author with the same name who wrote a book on advanced mathematics in the 1970s. Maybe a genealogical family history with the same name. Nothing substantial.
But with other names, there was much more to learn. One individual ran a 10K in under 25 minutes. Another individual sued five different parties in the span of three years. A third individual actually practiced law for several years in another province before moving to Ontario and somehow still made it onto the list of potential jurors. That was certainly a surprise when I found it. It was an interesting assignment, not only trying to identify the right person but also trying to determine what could be important and what would be extraneous.
What I truly was not prepared for, though, was what happened the next morning. I went in early, but instead of heading to the firm, I went to the Courthouse to join the lawyers there. On that day, the jury selection room, despite its size, was filled to the brim with people. Walking in, I saw someone I recognized, but I could not remember where I recognized them from. Then I recognized another. And another. Until I realized they were not people I knew but forgot about; they were the jurors that I had researched and reviewed. It truly is an odd feeling to recognize people who would never recognize you.
This left me sitting in the Courtroom during jury selection, watching the process alongside 150 other potential jurors, Lawyers, Court Staff and the Judge. For each juror, the Registrar would spin an old wooden box with the name of each juror inside. He would then pull a name, read it out, and the juror would approach. For the most part, it was oddly like bingo.
At the start, the Registrar did this six times, with six jurors at the front of the Courtroom. Each was asked if they were available for the length of the trial. Most gave reasons to be excused. Some had prepaid vacations. Others had labour contracts they were required to fill; participating in the trial would cause economic hardship. Two older individuals were concerned about sickness and their ability to pay sufficient attention; they were dismissed on compassionate grounds.
Eventually, six jurors were in the jury box. At this time, the Lawyers looked them over and started exercising their peremptory challenges, dismissing jurors that they believed would not weigh in their favour. And so, the cycle continued. Jurors were called; some gave excuses and were dismissed, while others were dismissed by peremptory challenges.
It took 41 jurors to finalize the six jurors and two alternates for the trial. 150 jurors were called, 41 were excused, eight were selected, and in the end, six participated in the trial.
by Max G.
Wednesday 25 October 2023
Ottawa Articling Student Positions
McCague Borlack's Ottawa office is looking for 2-3 articling students to join our 2024/2025 Articling Student cohort of 4. This will be an in-person position located in our OTTAWA OFFICE.
We are seeking articling students who are motivated and passionate about civil litigation.
We offer a hands-on articling experience with exposure to all facets of litigation.
For further details, please see the Student Positions page.
Wednesday 13 September 2023
As I began my journey as an articling student, I quickly realized that all the same feelings I had when starting 1L came back to hit me like a brick wall. The excitement of starting a new chapter in my life, the nerves associated with the what-ifs and of course, the unrelenting sense of existential dread wondering if I really have what it takes to be a lawyer.
"These were only a handful of the many emotions I felt during both these new beginnings."
The best word of advice I can give to those finishing law school is that the transition to practice isn’t exactly going to be smooth sailing. But remember– you made it this far already– which likely means that you already have all that is needed in your figurative “legal kitchen cabinet” to whip up a recipe for success.
Here’s what you’ll need…
Two Cups of Organization and Adaptation
A Pinch of Competence and Confidence
Garnish With Some Rest and Relaxation
In law school, you have deadlines for papers and exams and you will have similar expectations when articling. I remember like it was yesterday the fall of 1L and the rush of due dates for assignments while trying to balance studying for exams. Of course, this was followed by the lull of the second semester. During articling, you will have the same ebbs and flows, so take advantage of the downtime getting ahead on files but also doing things you enjoy. Yes, you need to work hard and meet deadlines because you are setting yourself up for your future career, but you also need to take time for yourself.
As a final thought, just know that you’ll be fine. Think back to how you developed and grew from your first to last year of law school. Similarly (and hopefully), things will get easier as time goes on during your articling experience and you get to learn how the law works in practice.
Friday 14 July 2023
Many people believe that the fields of law and social work are opposites. As a summer student having spent even a short amount of time in a law firm, I can attest that there is in fact a fascinating overlap between the two disciplines.
Within the tight-knit MSW/JD community, I’ve heard it put this way:
Law is public regulation and social work is public administration.
I’ve also heard that “An MSW/JD is like a lawyer, except with a soul.” (I’ve chosen to include this because this blog has definitely not seen enough bad lawyer jokes! Wink!)
What I love most about starting in a law firm as an MSW/JD student is being able to look at the law through the social worker’s lens. Social workers learn methods and theories in psychology, psychotherapy, health, behaviour, and human dysfunctions, and apply this expertise through a diverse range of social and client interventions. In essence, social workers are trained to predict and interpret human behaviour, and the stakes can be incredibly high. We’re made to predict whether parents will abuse their children; if persons suffering from addiction are at risk of jeopardizing their sober living facilities; and whether historically violent parolees will re-offend.
There’s a constant mental assessment happening: Is this person a threat? Are they lying to me? How are they going to act when I leave the room? What makes them tick? What keeps them calm? Something doesn’t feel right, but I can’t put my finger on it, and I must make my recommendation today: What level of risk does this person pose to themselves and to others?
The roots of frontline social work and the roots of litigation are very much alike. The question we’re continuously asking ourselves as litigators is: What is the other side going to do next? How will they react to what I’m advancing? What can I do or say that will make them understand me? What can I do or say that will help them feel understood?
Whether your audience is a judge, a jury, or opposing parties, one of the main goals in litigation is to appeal to what moves them and persuade them to your side. Legal strategy is partly a game in psychology, which is why using the social work lens to tap into human drives, patterns, emotions, and shortcomings is a powerful advantage.
While they do seem like polar fields at times, social work and law are, in my view, quite complementary. It will be fascinating to watch how social work influences my perspective on the law, as well as how my peers’ backgrounds shape their own emerging legal practices. As a very new, little fish in a big, lawyer-y pond, I’m fortunate to be finding some comfort in the commonalities between the social work side of me and the litigator-in-training side of me here at McCague Borlack.
As an aside, I wanted to share my favourite books related to the fascinating intersections of psychology and argument…Bringing a little MSW to the JDs, as it were!
- Predictably Irrational – Dan Ariely
- The Gift of Fear – Gavin DeBecker
- Talking To Strangers – Malcolm Gladwell
- Freakonomics / Think Like a Freak – Steven D Levitt and Stephen J. Dubner
- Thank You for Arguing – Jay Heinrich
By Becka, Concurrent MSW/JD Summer Student