An eye-opening account of the significance of written advocacy

While nerve-racking at first, every novice litigator looks forward to their first day speaking in Court.

After all, advocacy is our passion. 

However, it is important to not confine the definition of advocacy to fit within any particular four walls. In my time as an articling student, I saw time and time again how effective a pen (or a keyboard!) can be. Whether it is a carefully drafted email to opposing counsel or a thousand-page “Brief," what a lawyer does outside the courtroom, at their desk, is most often what is needed to successfully advocate for their client’s interest. We always hear statements such as “99% of a lawyer's work happens outside the courtroom” but it takes the perspective that comes from immersing oneself in litigation to understand what it truly means. 

Almost eight months into my articling term I had an experience that shined a great deal of light on this concept. I was invited to observe an appeal proceeding at the Court of Appeal for Ontario. Excited for the opportunity, I went to the courthouse to observe two of our lawyers make submissions. While I had been to court, both virtually and in person, many times by this point, it was my first time at the ONCA. 

We entered the courtroom and the first thing I noticed were the pillars that were standing tall at every corner of the room. As everyone prepared to begin, I set down the rather large folder containing Briefs, Factums, Books of Authorities, etc. The court started with the Honourable Justices addressing the other side with a series of questions based on the written documents for over an hour. Then they turned to our side and simply stated that no oral arguments were necessary! While disappointed that I did not get to witness oral arguments being made by our lawyers, I realized I was carrying what resulted in this case's success in my hands all along. In other words, the winning arguments were made long ago by those drafting the factum and other documents. 

While I always knew written advocacy was important, this experience highlighted just how significant of an impact it can have. Despite this, students get to be a part of this work from day one. So a message to those law students at the beginning of their journey: Your briefs may not be brief, but neither is their impact. 

by Ali A

My First In-Person Court Attendance

Since the COVID-19 pandemic, virtual court hearings have become the norm, and in-person court attendances are harder to come by. That’s why when I got assigned to attend Small Claims Court in Burlington in person, I was overjoyed!

While I have made several court appearances virtually during my articling term, I had not attended any in-person hearings, so I was hit with a wave of excitement. 

As an aspiring litigation lawyer, I have always dreamt of physically speaking in a courtroom, and here was my opportunity to do so.

As articling students of a litigation law firm, we are often given the opportunity to attend court, so I wasn’t as terrified going to court as I was the first time. Nonetheless, I made sure that I was prepared and took advantage of all of the information available in the file. I also spoke in great detail to the assigned lawyer, who walked me through everything. Once I felt like I was prepared and had finalized my submissions, I rehearsed them again and again.

Despite all of my preparation, I was still nervous the morning of. I was worried about all of the things that could potentially go wrong, including not finding the courthouse or getting stuck in traffic and being late for court.

It definitely felt a little odd having to drive to court instead of joining a Zoom meeting. However, I made sure to leave super early to account for traffic time. I arrived at the courthouse a little earlier than expected which I didn’t mind as it gave me time to rehearse my submissions once more. I entered the courthouse and found the courtroom where my matter was being heard. Once it was my turn, I made my submissions, and the Deputy Judge told me that her endorsement would be sent shortly. I couldn’t believe how smoothly everything went and how quickly it all finished. Getting to physically attend court was a fantastic learning experience and now I can’t wait for my next in-person court attendance!

by Chanpreet S.

Running Your Own Trial as an Articling Student

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.

Learning the Ropes: My First Settlement Conference

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.

One small claims case I was working on involved the defence of a negligence claim brought against a medical professional.

The first step was to prepare a defence. Because the timeline to respond to the Plaintiff’s Claim was approaching, we did not want to risk being noted in default by the court.

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.

by Nicholas T.