Learning by Doing: Examination for Discovery

One of the highlights of my summer thus far has been attending a lengthy examination for discovery (or ‘discovery’, for short) with senior counsel. While the examination took place over the course of 4 days a few weeks ago, my work on the file has been ongoing ever since. It’s always great when you can continue to do work on a file to see how it progresses and how your contribution makes an impact!

You might be wondering (like I was just a few weeks ago), what even is an examination for discovery?

Well, discoveries are a pretty significant part of civil litigation that take place before the trial. I like to think of discoveries as getting a “sneak peek” into the other side’s case. The lawyer has the opportunity to ask questions to the opposing parties about the issues at hand as well as the evidence that they provided. The proceeding is less formal than a trial: it happens outside of court, but the parties are still required to make an oath.

Prior to the discovery, I took some steps to make sure I was properly prepared. The very first step was to speak with the lawyer I was attending with. Since this was a pretty complicated case, she gave me a nice overview and a few good starting points for familiarizing myself with the case. There were over 2000 documents associated with the file but luckily, I didn’t have to review everyone! Instead, the lawyer pointed to some key documents like the Statement of Claim where I could gain a good understanding of the case. I quickly learned that the case was about a corporation suing former employees alleging that they committed fraud. Crazy!

The discovery took place virtually over zoom with a court reporter present. Despite the very contentious issues involved, the lawyers had a good rapport with each other and exchanged pleasantries. Everyone also gave me a warm welcome to the practice of law!

During the discovery, my task was to observe and take notes. In particular, it was important to keep track of what is known as “undertakings.” This happens when the opposing lawyer does not have the answer to a question you asked right away, but the information might be available at a later date. The lawyer can “undertake” to provide an answer and/or request additional information to do so.

The lawyers went right into asking questions to the witnesses once we were on the record. They also gave witnesses the opportunity to seek clarification or rephrase questions if they were not sure of what was asked of them. It was really interesting to see the different examination strategies used by each of the lawyers, and how they used the evidence to their advantage. Things definitely heated up at times, but the lawyers and witnesses remained respectful of each other throughout.

After the discovery, I was eager to remain involved with the file on the next steps. I assisted in preparing a Discovery Report by providing summaries from my notes, which were then sent to the client! I also created undertakings schedules that will be sent to opposing counsel to ensure we receive the requested information. All in all, my first discovery was a great success and I am looking forward to attending many more and hopefully running the show myself one day!

by Naomi S.

A Day (or Six) of Discoveries

In July, I had the opportunity to attend six days of Discoveries on a product liability file where millions of dollars were in dispute. Discovery is a court-mandated fact-finding process where lawyers question experts, witnesses, and parties to the litigation. For those six days, it was my job to take copious notes while the lawyers for the plaintiff and eight defendants questioned a new product expert or manufacturer each day.

The lawyer for the plaintiff would be the first to ask questions, followed by the other eight. 

"Watching that many lawyers for six straight days displayed the different types of interviewing styles."

Some were very methodical and did not like the witness to veer off topic when answering, while others were game to go down tangents and rabbit holes. Some were super friendly, and one took a more adversarial approach. All were very effective and showed me I can find the style that best suits me.

The questions showed me that you can never assume anything, no matter how small or seemingly obvious the detail. Evidence needs to be built on the record layer-by-layer so that there are no gaps or inconsistencies. For instance, in this case, we needed to know if one of the defendants had read the warning labels that come wrapped around a product in a certain year. But the first question cannot just be, did you read the warning labels? Maybe it was once their job to unpack the product, but maybe they did not work at the company until the year after the product in question arrived at the warehouse.

First, the witness would be asked, about their work history. This showed us where they were in a given year, and if they were in the department or job that would have put them in contact with the parts at the time we cared about. Then they would be asked about their responsibilities in the role, to see if they actually had contact with the part. Next, they would be asked about how the product was packaged. We knew that they came in boxes of six, but the witness would need to describe that, so we would know if his recollections were accurate. Then they would be asked about the packaging, what was on it, if it was removed from the sleeve that contained the warnings when sold, and on and on. After getting all their recollections on record, the lawyer would bring a photo of the warning up as final confirmation from the witness that they had seen it. This whole line of questioning could take 2-3 hours, just to find out if they had seen the warnings. But this way, we knew they were in the right place at the right time, and it was confirmed by both oral testimony and evidence.

As a note-taker, you’re also playing an essential role. Not only are you recording the evidence, but you are also in charge of tracking undertakings. Undertakings are requests for information and documents from one lawyer to another. They can range from contact information for a witness to company reports and specifications. It is very likely that you will be asked to draft a chart of all the undertakings, so it is essential you listen for the words, “council, can I get an undertaking for…” because that is your cue. I learned quickly that just because you request it, does not mean you’ll get it. Usually, when an undertaking is requested, council will respond with “best efforts” – meaning they will do their best to produce it. But sometimes, they will refuse and explain on record why they are doing so. It is also your job to record these responses.

If you have the opportunity to attend multiple days of discoveries, I highly recommend you take it. A one-day attendance gives you an idea of what Discovery is. But attending multiple days shows you how evidence is gathered, how strategies change as information evolves, and all that time working with one lawyer is a great relationship-building opportunity.

by Alexandria B.

The Virgin Diary - My First Mediation

For my first assignment as a summer student, I assisted with a case that has been ongoing for eight years. The case was a complicated one with multiple legal issues. The file was made inherently more difficult by the number of parties involved. In law school, we read about cases only once judgments have been released but we were not exposed to all the work, time and effort that leads up to that conclusion.

"Outside of the theory of law school classes, I learned that the practice of law
 is not quite the same as portrayed in legal textbooks."

Last week, I was provided with the opportunity to attend the mediation for this case. I had never experienced any form of ADR (other than those I watched from my couch on tv) so I did not know what exactly to expect. This mediation was a great learning experience about how a mediation is conducted and how each lawyer has a unique style.

Below are my top 5 unexpected discoveries from the mediation:

Everyone is cordial. Unlike in Suits or similar legal dramas where lawyers are snarky and combative towards one another, the lawyers, even those on opposing sides, were respectful and courteous.

It is time-consuming. We arrived at the location of the mediation at 10 a.m. and did not leave the venue until 4:15 p.m. While the mediation I attended settled in that time frame, some mediations take even longer.

Food! From the minute we arrived at the mediation venue until the very end of the day, food was at the centre of everyone’s mind. Everyone eats throughout the entire day. You have to keep up your energy when advocating for your client!

There can be a lot of free time. A big aspect of mediation is negotiations, with the mediator acting as the intermediary between the parties. While the negotiation aspect of the mediation is taking place, the mediator may separate the parties into different rooms to determine what each party is seeking to gain from the mediation process. While the mediator is with one party, the opposing party/parties are playing the waiting game.

It provides great networking opportunities. Being in a room full of lawyers has its benefits, especially for someone just starting out in the legal profession. At the venue where this mediation took place, there were multiple boardrooms with many different meetings, such as mediations, taking place. With so many lawyers in one location, it makes for a great opportunity to meet and talk with other members of the legal community.

Overall the mediation was a great experience and I look forward to being exposed to many more new opportunities as the summer continues.

By Israel K.

Top 5 Articling Experiences

My time as a summer student at McCague Borlack last year went by so quickly that I didn't have a chance to reflect on my experiences until it was over. As one co-worker so aptly put it, as a summer student you’re there just long enough to figure out exactly how much you don’t know.

...it feels pretty cool to flash your LSUC card and bypass the security line at the courthouse.

Now we have an entire 10 months for articles and even that is flying by! So, in honour of being almost half-way through, I will reflect on my top 5 experiences thus far (in no particular order).

Motions

Drafting motion materials and arguing a motion yourself gives you the chance to see why it is so important that you know a particular Rule inside and out, research the caselaw, get all your dates in order, and so on. Most importantly, arguing motions gives you a chance to engage in real advocacy and, as a budding litigator, it’s an excellent feeling! Also, it feels pretty cool to flash your LSUC card and bypass the security line at the courthouse.

Client Contact

During my OCI interview with MB, I was promised a hands-on experience and this has proven to be true from the very first day of work. As an articling student, I communicate directly with clients on a daily basis regarding updates, opinions on the file, and of course, instructions. I have found that both co-workers and clients are genuinely interested in my opinion. I’m often asked to assess damages and/or liability and then to discuss it with the client. I've had the opportunity to run lead on files from start to end, and nothing gives you a better idea of what it’s like to be a real lawyer than that.

Firm Events

This year MB celebrates its 20th anniversary with 20 special events, which included a boat cruise for the whole firm. The work environment at MB is always friendly and the cruise was a great opportunity to enjoy time with my co-workers outside of the office. As an articling student, you can quickly get caught up in your work and forget to take the time to enjoy the experience, and the boat cruise allowed us to do just that.

Discoveries

As a summer student, I went on discoveries and enjoyed seeing the process first-hand. However, only now as an articling student with more involvement in files do I have an appreciation of the importance of discoveries. With settlement becoming more common, discoveries play a critical role in assessing liability and damages at an early stage and have shown me that every question has a purpose. It has also allowed me to observe different styles of questioning (are you in the “catch more flies with honey” camp or the “direct and to the point” camp?) and in turn develop my own style. (I am leaning toward the former.)

Student Group

Lawyers often speak of articling as if it’s war. Articling can be tough and there is definitely a learning curve, but it makes all the difference when you have good people to go through the trenches with. I’m thankful to work with a great group of students. Have an urgent assignment due and need to take yourself out of the work rotation? No problem. Have dinner plans and need a second set of eyes to help review documents so you can leave on time? Someone will be there to help.

To all upcoming articling students: Articling isn't just a tough time that you have to get through; it’s a time to learn a lot, try new things, and enjoy yourself along the way.

Sarah B.