Wednesday, 28 November 2018

A Day in Divisional Court

It probably goes without saying, but as a student interested in litigation, if you ever get the chance to get into the courtroom, either to present or watch, you take it! Earlier this month, I was tasked to observe a judicial review hearing in the case of Sabadash v Statefarm at the Divisional Court.

If you are not familiar with Divisional Court, it is a branch of the Superior Court of Justice and acts as an appellate court. It hears certain types of appeals and applications for judicial review.

Unlike a trial, where there is one judge and sometimes a jury, counsel at Divisional Court present to three judges of the Superior Court. Counsel in Sabadash v Statefarm worked to persuade Madame Justice Swinton, Madame Justice Copeland, and Madame Justice Thorburn, a formidable panel of accomplished judges.

"As an appellate court, parties don’t advance new evidence at the hearing; instead, they muster their best legal arguments in support of their position."

In Sabadash v Statefarm, the legal issues were:
  • What is the standard of review for a Director’s Delegate’s decision at the Financial Services Tribunal?
  • What is the proper test for causation in accident benefits cases, “but-for” or “material contribution”?
  • What remedy should be ordered?
Observing appellate work is incredibly useful, especially to young lawyers. In under two hours, I observed two talented senior counsel present their arguments and listened as the judges asked various questions of each side. When arguing appellate work, you have to be ready to answer disjointed questions about any step of an analysis and know the foundation for your argument like the back of your hand.

Another useful strategy I learned in law school and observed being used by counsel was the use of an argument roadmap. Before launching into an hour-long presentation/conversation with your judges, they want to know what you’re going to talk about, and when they can ask the questions of you they formulated reviewing your material.

If you ever get the opportunity to get out of class or the office I can’t recommend Divisional Court hearings enough. Attending this hearing was a great way to expand my learning in a substantive area of law that I am practicing. It provided me with the chance to improve my advocacy by watching senior and experienced counsel, and finally, I was able to speak with both counsel, meeting members of the Toronto and Ottawa bar.

Outside of Toronto, Divisional Court sits infrequently on an annual schedule. If you are interested in learning about the Divisional Court, call your local courthouse to see when it is sitting next.

by Lee Chitty

Friday, 9 November 2018

The Art of Settlement: Lessons Learned from My First Pre-Trial Conference

Early into my articling term, I was given the opportunity to assist a lawyer on a claim involving a motor vehicle accident. The matter was coming up for a pre-trial conference, which is one of the last opportunities for the parties to settle the dispute. Having been asked to assist with the materials,

"I reviewed the file, drafted the pre-trial brief, and
was ready to attend my very first pre-trial conference."

In law school, many of the oral advocacy courses that I took involved mediation or some form of negotiation. However, I didn’t really know what to expect from the pre-trial. When asked, the lawyer described it as an informal discussion with a judge to help the parties narrow the issues to essentially reach a settlement. This description turned out to be fairly accurate.

The pre-trial took place in a setting resembling that of a boardroom. Soon after the judge entered the room, he attempted to gauge the parties’ appetite for settlement. He also wanted to learn about the main barriers to settlement. I was amazed at how the lawyers, after a series of caucuses with the judge, were able to pinpoint the issues in a relatively short period of time and ultimately come to an agreement.

Below are my top five takeaways from the pre-trial conference:

  1. Preparation is key. It is very important to know the facts of your case inside out. This will help you narrow the issues and make the most of the opportunity to obtain a settlement.
  2. Be confident in your position. This can be achieved by understanding the strengths and weaknesses of your client’s case and anticipating the arguments of opposing counsel. When you are confident in your position, you have a better chance of convincing the other side to consider your point of view.
  3. Times flies - use the time effectively. You only have two hours with the pre-trial judge. While settlement discussions may continue after the pre-trial, it is important to use this time effectively if the parties wish to settle the matter.
  4. Settlement negotiation is an art form. Like all art, it requires practice. Each lawyer has their own unique negotiation style and technique. It is only by practicing and observing others that you will be able to develop a negotiating style of your own.
  5. Pre-trial judges act like mediators. The pre-trial judge, in this case, had reviewed all of the materials in advance and was therefore very helpful in evaluating the positions of the parties to facilitate settlement.

Overall, the pre-trial conference was a valuable learning experience. I hope to use what I have learned at future pre-trials and settlement conferences.

Andrew Valela

Friday, 19 October 2018

A Letter to the Next Generation of Law Students

Dear Future Lawyer:

You’re probably very busy, so I’ll keep it brief. I’m three months into my articling term, and there are definitely a few things I wish I knew as a summer student.

First of all, breathe. Like most law students, you’re either a) a perfectionist, b) a high-achiever, or c) eager to please (and if you’re anything like me, you’re (d) all of the above). As such, you’ll get frustrated when receiving your first few assignments. You’ll probably ask yourself: (1) “what are they even asking me to do?”, and (2) “why is it taking me so long?” Relax. You’re not unintelligent, and no, your firm did not somehow hire you by accident.

"What you’re feeling, imposter’s syndrome, is normal."

My first assignment was a brief, two-page initial report on a small claims file – I needed three full working days and numerous meetings with the supervising lawyer before it was submitted to the client. The good news is, I can now draft most reports in a matter of hours. “But when will I be able to work faster?” you may ask. Unfortunately, there’s no exact answer. But by month no. 3 of the articling term, there is a great improvement in both the quality and the efficiency of our first drafts. Also, your mentoring lawyers want you to work hard, but not drive yourself crazy! They’ll never give you work you can’t handle, and they’re always happy to answer questions.

Second, follow your instincts. You will hear all kinds of suggestions from all sorts of people. As a self-proclaimed advice-soliciting aficionado, I can guarantee that some of the answers to the same questions will conflict (and may even fully contradict one another). I’m sorry to disappoint you, but there is no “one size fits all” on how to approach something (i.e. how to choose your attendances, manage your workload…etc.) Individual critical thinking skills are essential. You “do you”, and if your style needs tweaking, you will get help along the way. And while I’m on the topic of carving your own path, I’d like to quickly mention the use of assignment precedents: they’re amazing time savers, but they are just a guide. We are training to be lawyers and we are expected to be able to draft documents to suit the situation. Also, overuse makes you prone to typos and other sloppy errors (seriously, how many times have I forgotten to change the court file number at the top right corner and needed to reprint the first page). Three months into your articling term, you’ll find yourself having enough confidence to say things like, “well, I can draft a motion record, I don’t need a precedent and if I do use one it will be mine…”

Finally, never turn down an opportunity to learn. Lawyers will ask you: “what’s your capacity like?” Unless you’ve been awake for the last 72 hours straight, or have several last-minute assignments with limitations expiring the next day, you’re not at full capacity. Some of my favourite files started off as a walk-in request while I was neck-deep in other work. In addition, you stop learning the minute you shift responsibility onto something (or even someone) else. Even though support staff can be very helpful; it’s incredibly important that you learn how to do administrative tasks as well. But mistakes will happen, even three months into articling. And when they do happen, do your best to fix it while reminding yourself that it’s all a part of the process (albeit a more painful part).

Students are told that the key to success is to be respectful, humble, and hardworking. I’d also like to add that it’s important to be kind to yourself as well – everyone has to start somewhere.

Yours very truly,

Émilie-Anne Puckering

An Articling Student

P.S. Coffee is not a meal substitute, always bring a pen and paper with you everywhere, and remember to pay it forward to the next generation. Good luck

Monday, 8 October 2018

Articling Student Style: What to Wear on Interview Day

When preparing for OCI and In-Firm interviews, one of the most daunting decisions is: what do I wear? Although seasoned lawyers live in their suits, in law school we often attend class in very casual clothes. For many, a summer position at a law firm may be the first time that you have worked in a professional environment, so figuring out how to dress can be intimidating.

I remember spending hours stressing out with my friends in law school over which colour of suit was the most professional, and what type of shoes were appropriate. To save you the same headache, 

the articling students at McCague Borlack have provided tips on what to wear
(and what not to wear) on interview day along with some photos.

What We Wore
or a dress & blazer with flats
like Karolina...
You're sure to Impress!

Whether you choose a skirt
with heels like Emilie...
After polling the women, it is clear that navy or black is the interview colour of choice. You can’t go wrong with either a pant or skirt suit or a dress with a blazer. Some of us wore heels (anywhere from 1.5 inches to 3 inches) and others opted for flats (so you don’t have to hurt your feet if you don’t feel comfortable in heels!)

When it comes to women’s office wear, Priya...
and Jess know black is the new black.

Yousef & Andrew looking tough
& office appropriate.
For the men, blue suits and grey suits were the clear winners. Lighter coloured dress shirts were the most popular, with either white or light blue being the most reported.


We love Lee’s tie – it really livens up his
outfit while keeping things professional!
All of the students stressed letting your personality shine through your accessories, such as a funky tie, crazy socks, or your bright blue glasses. If you wear your hair naturally curly, then keep it curly for your interviews. Don’t feel like you need to sacrifice your identity to fit into a mould, so be yourself and don’t be afraid to add some personality to your look.

Where to Shop

  • Le Chateau (Jessica)
  • Banana Republic (Emile)
  • Winners and HBC (Karolina and Priya)
  • Suit Supply (Yousef)
  • Strellson (Andrew)
  • Calvin Klein (Theo)
  • Moores (Lee)
  • Suzy Shier (Howard Borlack)

What Not to Wear

The overwhelming response we received from the articling students is to make sure your suit fits – if your suit is too big or too small, it detracts from your presentation. The same goes for hair. Keep your hair and facial hair well-kept/groomed. Any hairstyle is fine – just keep it neat.

The students suggest leaving the sundresses and wedges at home as it’s a bit unprofessional – and out of season for November. I also received very specific advice: no electric blue suits.

Another point that was repeated was to avoid wearing anything you don’t feel comfortable in. It’s hard to smile if you’re breaking in new shoes. You want to be confident in your interview, so don’t include anything that makes you feel self-conscious!

Theo, from our Kitchener office,
keeping it cool.
Tips to Keep Fresh all Day

If it’s within your budget, it’s nice to have a place downtown where you can keep a spare shirt/suit in case you spill something on yourself. The students reported booking Air-BnB, splitting the cost of a hotel with a friend, or staying with a friend or family member who lives downtown.

I also suggest bringing a pocket-sized sewing kit. At my interview, I opted for a button-up shirt under my blazer. It looked great, but two minutes before I met my interviewers a button popped off! Luckily the receptionist at MB came to my rescue with a pin – but imagine if that wasn't available!


All the students were in unanimous agreement that you shouldn’t stress out about your interview outfit. As long as you’re prepared, confident, and polished, you’re going to do well.

Below is a checklist of all of the items to bring along on "interview" day. Print it off and use it as you pack your bag for In-Firms.

Check-list of helpful items for In-Firms

  • Multiple copies of your resume and cover letter and any other parts of your application.
  • A notepad and pen – you’ll want to have this to write down your impressions after the interview. It will really help when you’re writing your thank you emails. Believe me, the day will become a blur.
  • Breath strips – they dissolve so you can talk, unlike mints/gum.
  • Hand sanitizer – for keeping your hands fresh for handshakes.
  • Tide-to-go, or similar.
  • A briefcase/large purse.
  • Flat shoes – if you’re opting for heels make sure you give your feet a break by hiding flats in your bag for when you’re running between offices.
  • Snacks – bananas, granola bars. You will get hungry, and you probably won’t have time to stop for lunch.
  • Water
  • Lip balm
  • Band-Aids – try to break in your shoes ahead of time, but keep these handy just in case. o Tissues
  • Deodorant – it’s a loooong day.
  • Phone charger – If you’re unfamiliar with Toronto, GPS is super helpful. You’ll also want to stay on top of your emails throughout the day.
  • A small mirror – very useful for making sure you don’t have any food in your teeth from lunch.
  • Floss – see above.

Wednesday, 5 September 2018

Firsts: Arguing a Motion On My Own

On just my second day of articling, I went to court to argue a motion. While this was my first time arguing a motion on my own, it felt entirely routine. When I received the assignment, an associate handed me the motion record and said, “Here, go argue this tomorrow”. A brief wave of panic came over me until I realized it was a simple, unopposed motion, and more procedural than anything else. I also realized that while articling students are allowed to argue motions, my firm wouldn’t throw me into one on the second day if I could get everyone into trouble.

That afternoon, I brought myself up to speed on the file and courtroom etiquette, and I was ready to go. As a summer student here last year, I would never have imagined arguing a motion on my own. Now, as an articling student, I can imagine it because I’ve done everything leading up to it. I spent last summer working on motion materials and observing other lawyers argue motions. The world of motions was somewhat demystified.

"There’s something to be said about being thrown into things and learning on your feet."

The next morning, I arrived at the courthouse early to settle in and find my way around. I worked as a court reporter in my previous, pre-law school life and was very excited to be back in court. The Superior Court of Justice in Brampton is one of the larger local courthouses, and home to all kinds of matters—criminal and civil alike. It was unsurprisingly busy.

While this was my first time at that courthouse, everything was instantly familiar. While each courthouse has its nuances, once you figure out the process, you can navigate most of them. I flashed my LSO card through security (for the first time!), found my matter on the docket, and proceeded upstairs to my courtroom in under 5 minutes. As I was early, I sat in the waiting area, where I re-read my motion materials and checked, several times, that I was indeed at the correct courtroom—and I’m not going to lie, correct courthouse.

Once the doors opened, people filed in en masse—and I, with them. As I filled out my counsel slip, I noticed that everyone else was gowned. I, of course, was not gowned because I don’t have a gown—yet. One of the lawyers noticed this too and asked me about it. When he learned that I was a student, he was surprised to hear I was on my feet on only my second day of articling. “Oh, it’s just a WAGG motion today”, I replied casually. Of course, I was arguing it, what a great opportunity to get on my feet early—and in a safe environment, as my motion was unopposed.

That day, I really understood what lawyers at this firm have been telling me all along. As a student, I would be thrown into the water and learn to swim—with lifejackets and lifeguards on standby, of course. Here I was, arguing a simple, uncontested motion on my own, and my experience here last summer prepared me well. As a summer student, my first assignment was to bring an urgent motion. By the time the summer was over, I had drafted motion materials over and over again and became familiar with the different types of motions. As a bonus, my experience here also helped me when I took Advanced Civil Procedure and studied for the bar.

As for this motion, everything went well. I got our order, didn’t get yelled at, and I remembered where I parked.

Monday, 20 August 2018

Our "Eat Pray Love" break in between...

Before we - The 2017 Summer Students - returned for our final year of law school, we asked many of the lawyers what would be the best way to spend our break between the bar exams and the start of our articling term.

A common (and encouraging) response was that we should
travel and experience other parts of the world.

So here is what we did:

Jessica: I travelled to Croatia, Spain, Germany, and Italy. Hvar, Croatia and Barcelona, Spain are tied as my favourite cities. I met up with an old friend in Barcelona who had grown up there and she showed me all of the popular local spots. In Hvar, I discovered a “secret” beach that was only accessible on-foot after an hour-long trek through rough terrain (and of course, I was wearing flip-flops!)

In Spain, I really enjoyed the tapas. My favourites were the patatas bravas and the lobster croquette. The patatas bravas was super crunchy on the outside, but soft and fluffy on the inside. The lobster looked so good that I ordered seconds right after the first one arrived!

Emilie-Anne: I went to England, France, Greece, and Italy. My favourite city was Fira, Santorini, Greece which had the most beautiful sunsets over the Caldera.

What I enjoyed most during my trip was visiting the Louvre Museum in Paris. There are so many things to see in the Louvre; it’s impossible to view it all in one day. My favourite exhibit was the Mona Lisa (obviously). The desserts in Paris were amazing! Their sugar doughnuts put Tim Hortons to shame.

Karolina: I travelled to Playa del Carmen, then spent the rest of the summer exploring Toronto and catching up with family and friends. I hosted a food crawl across Toronto called the “Day of Gluttony”. We tried 12 restaurants in 12 hours and discovered a bunch of hidden gems. Some of my favourites were Dai Lo (Asian fusion), Pinky’s Ca Phe (Vietnamese), Seven Lives Tacos, and The Big Chill (classic ice cream parlour).

Andrew: I went to Spain, France, Netherlands, and Portugal. Paris was my favourite city because I got engaged there! I also loved the food and the architecture. I watched the world cup finals between France and Croatia in Paris and I got to celebrate the victory with the locals.

I had a really good lamb dish at a Mediterranean restaurant, also in Paris. It was extremely tender and paired nicely with Israeli wine.

Yousef: I went to Spain and Egypt. In Spain, I visited Seville, Cordoba, and Granada to see the many historic sites that they have to offer. The unique blend of Arab and Spanish culture was really interesting to experience. My favourite activity was swimming! In Alexandria, Egypt, I swam in the Mediterranean which featured large waves that were great for body surfing. In Sharm El-Sheikh, Egypt, I had the chance to scuba dive with the fish in the Red Sea.

In Seville, I ordered chicken breast stuffed with pistachio and dates. When I ordered this dish, I had no idea what to expect, but it turned out to be great. The flavours were surprisingly complementary. I am excited to try and recreate it at home!

Final Thoughts

Although we are fortunate and thankful that we had the opportunity to travel this summer, we are eager and excited to be back at McCague and begin our articling term.

Saturday, 18 August 2018

Why Litigation?

It is that (exciting) time of the year when law students are preparing for their applications for 2018 recruitment and are reaching out to summer law students and associates to learn about their firm and experience.

One of the common questions that I have been asked is 
"How did you know you liked litigation?”


In my first year of law school, I participated in two moot competitions. It was exhilarating to step up to the podium, be tackled with difficult questions by the Judge, and have to formulate an answer on the spot.

Similar to mooting, having to speak in front of a Judge, Master, and others is common in litigation. The summer students at McCague Borlack LLP have attended mediations, discoveries, motions, and pre-trials, with the associates to learn various litigating styles.

Having experience with moots helps to know whether you will enjoy litigation. However, if you do not have mooting experience, that is okay!

Exposure to the Courtroom

As an extern at the Michigan Court of Appeals, I spent a few days at Court observing litigators. During those few days, I sat quietly at the back of the courtroom and watched both Judges and litigators converse, trying to come to a resolution for the legal issue at hand. After I completed my externship, I knew that litigating is something I wanted to pursue in my legal career.