The Virgin Diary Part II – My First Pretrial

I was recently given the opportunity to assist a lawyer on a claim involving a motor vehicle accident. The matter was coming up for a second pre-trial conference, which is one of the last opportunities for the parties to settle the dispute.

After researching different areas of the law, drafting the pretrial brief and
compiling the documents, I was prepared to attend the pretrial conference.

I had taken courses in alternative dispute resolution in law school and attended mediations but I didn’t really know what to expect from a pretrial conference. At a pretrial, there is a judge guiding the parties, trying to bring the parties towards a settlement. I was unsure how this was going to look and how this would affect all the parties’ arguments and settlement positions.

The pretrial took place in a setting resembling that of a boardroom with the judge sitting at the head of the table and the parties sitting on either side.

Below are my top 5 discoveries from the pretrial conference:

The judge means business. After walking into the room the judge immediately asked for updated settlement numbers and whether the parties were any closer to settling the matter. No pleasantries were exchanged or small talk was had.

Turned into a mediation. The judge thought it was best for the different sides to be in separate rooms and for the judge to go back and forth between the rooms like in a mediation.

Be ready for anything. No matter how much you prepare and how well you know the law, unanticipated questions and issues of the case arise. As such, it is imperative that you are quick on your feet and can find the answers in your materials as quickly as possible.

Settlement negotiation is an art form. Each lawyer has their own unique negotiation style and technique. Sometimes a lawyer will use more than one style depending on the issue being debated.

Coming close but not close enough. In this claim, there were many issues in dispute both in liability and in damages. As a result, it was very difficult for the parties to make a deal. However, on many issues, the parties made substantial ground and came much closer to a settlement.

Overall, the pretrial conference was a great experience and I look forward to being exposed to many more new opportunities as articling continues.

p.s. Read The Virgin Diary Part I - Mediations

by Israel K.

These are a Few of Our Favorite Things: MB Articling Class of 2019 Highlights

During articling, you’re constantly learning. In law school, the majority of our education focused on theory, but as students-at-law, we are learning about the practice of law and the application of the theory we studied. As our articles get closer to ending, I have been reflecting on how much I’ve learned and also how much I still don’t know.

In order to highlight the variety of experiences our articling class has been privy to, I’ve polled my fellow students to ask them which of their many experiences so far stood out the most. This is what they said:

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Andrew

Favourite assignment:

• My attendance at a small claims settlement conference.

Why it was my favourite:

• It was a great way to strengthen my negotiation and oral advocacy skills.

What I learned:

• It is important to understand the strengths and weaknesses of your client’s case and to anticipate the arguments of opposing counsel. I also learned that negotiating is an art form and that negotiation styles develop over time with practice.

What I’ll do differently next time:

• Use time more efficiently by trying to narrow the issues with counsel beforehand.

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Émilie-Anne

Favourite assignment:

• It’s hard to pick a “favourite” assignment since I’ve received so much good work during my articles. A really cool assignment that comes to mind is a settlement conference I was asked to attend. The pleadings had closed, and I was asked to help negotiate the settlement. Though I sought approval from a lawyer before taking each step, I was given the freedom to develop the negotiation strategy on my own.

Why it was my favourite:

• The best part was that I could assess damages using any method I wanted, including calling stores across Ontario to ask for their pricing. I was the main contact point with both the client and opposing counsel, which meant I continuously re-evaluated both positions to find a middle ground. The matter eventually settled last year.

What I learned:

• What made this file interesting was that it was very emotionally charged. In addition to strengthening my advocacy skills, this assignment taught me how to interact with parties in sensitive situations. When the opposing party’s position is personal rather than financial, it’s a lot harder to elicit a compromise.

What I’ll do differently next time:

• If I could do it all again, I would rehearse my submissions another a dozen more times. I remember my voice trembling as I was speaking to the deputy judge. Nerves make you seem less prepared and less confident in your position (which couldn’t be farther from the truth).

 

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 Jessica

Favourite assignment:

• Student support on a summary judgement motion. This included conducting research and helping draft the Brief of Authorities and Cost Outline

Why it was my favourite:

• It was super rewarding seeing my research being used in legal documents and discussed in court. I had heard so much about summary judgement motions in law school, so it was such a great experience finally seeing one in action. I also loved seeing the different oral advocacy styles of counsel.

What I learned:

• Real-life litigation is even more exciting than a moot court. Good advocates can have completely different styles.

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Karolina

Favourite assignment:

• I have a few favourites, and one of them is something I’m doing now: helping a lawyer prepare for trial.

Why it was my favourite:

• I helped draft the pre-trial memo for this file, so when it began heading to trial, I was excited to get a glimpse into the process. Putting together the trial brief is a satisfying process on its own, but I enjoy preparing for the performative aspects even more. I mooted competitively in law school, both at the trial and appellate levels. I’ve also taken improv classes for fun. Taking the first crack at drafting the opening/closing and examinations is not only fun, but it’s also incredibly instructive on persuasive advocacy and evidence.

What I learned:

• While we’re still in the midst of things, I’ve already learned to expect nothing but prepare for everything. While I tried to organize my workload around this assignment, I didn’t realize preparing for trial would be this all-encompassing. I have a number of other large projects, including a small claims trial that will take place shortly after this trial. Time-sensitive assignments can and do come up when you least expect them. I will be moving everything forward with these two trials at the forefront. A trial is the “final act” of a file, and as they say, ‘the show must go on’.

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Lee

Favourite assignment:

• Drafting the initial opinion for a subrogated fire loss claim.

Why it was my favourite:

• It’s interesting, challenging, and I learned a lot in the process. Initial opinions to clients are an important step in the litigation process, even though they exist outside of the court process. Initial opinions are the first opportunity we have to demonstrate an early mastery of the facts leading to our client’s loss and chart a way forward for its resolution.

What I learned:

• I found the assignment challenging because I have a long way to go before I master litigation strategy! Luckily, I was able to review some sample plans for similar cases and work closely with the partner in developing the opinion.

What I’ll do differently next time:

• If I knew then what I know now, I would definitely consult more litigation plans, looking at the different strategies we’ve used as a firm to be successful in winning cases like this. I was very happy to draft and revise the entire opinion, discussing it with an Associate and a Partner along the way. Ultimately I got to see a final product that was predominantly my work going to our client, and I learned a ton along the way.

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Priya

Favourite assignment:

• My favourite assignments so far have been drafting mediation briefs.

Why it was my favourite:

•  Drafting a mediation brief gave me the opportunity to exercise written advocacy.

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 Theo

Favourite assignment:

• My favourite assignment during articling was being given my own small claims file.

Why it was my favourite:

• It was my favourite for a number of reasons, not the least of which was that it was completely nerve-wracking. In most other tasks I am assigned, I am not the head point of contact on the file. Having that responsibility was a challenge and an opportunity that I welcomed and only made me better. All of my actions carried a different weight compared to other assignments because it was my name that was being attached to it. It also provided a great foundation from which to build off of and I felt it really took me to another level in terms of my confidence and aptitude.

What I learned:

• Aside from the bigger events like preparing for a settlement conference, I also learned about the finer details such as communicating with the client and other parties. I learned how to manage expectations and confidently give my opinion on the status of the matter. These behind-the-scenes communications are every bit as essential, and they’re not something I was always privy to. Additionally, I learned when it comes to pleadings to ensure that you are thorough and cover all possible angles of your case and leave no stone left unturned.

What I’ll do differently next time:

• The next time I am given my own file I will be better equipped to hit the ground running. I wouldn’t necessarily do things very differently as new cases also come with fresh issues and nuances, but I would definitely have fewer questions regarding the process and how to navigate it. 

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Yousef

Favourite assignment:

• My favourite assignment was to bring an application under the Repair and Storage Liens Act for the return of an article that was improperly seized.

Why it was my favourite:

• It was my favourite assignment because at the time I was unfamiliar with the legislation and it was a chance to explore an area of law that I hadn’t yet experienced.

What I learned:

• I had the opportunity to communicate back and forth with the client and the insured throughout the completion of the application which was a great learning experience.

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Conclusion

Even writing this blog post was a learning experience. What I learned from interviewing my fellow students is that we have all had diverse and varied experiences. I’ve been lucky enough to try some of the “favourite assignments” listed above, but some I still haven’t. There’s still a lot to look forward to. The great thing about this profession is I don’t think we’ll ever stop learning.

by Jessica M.

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 V.

Pre-Trial Conferences: Down to the Wire

Television shows like The Good Wife or Suits often glamourize the life of the lawyer, and make it seem like trials are an everyday occurrence. Many of these legal dramas showcase a different trial in each episode. The reality, though, is very different. The scarcity of judicial resources, coupled with the financial burden and the extraordinary length of time spent litigating matters means that the legal system is inclined to push for settlement before trial. However, there are times when matters simply cannot be resolved. It is then that lawyers must take on the task that we see so often on television, and proceed to trial, complete with witnesses, robes, and sometimes even juries.

...the parties agreed that a pre-trial conference might be the best route towards agreement on some issues...

For the last few weeks, I have had the opportunity to assist with one of the upcoming trials at our firm. The case was complex, with multiple parties and many issues in contention. In fact, the trial was originally scheduled to go on for several weeks! With the start date looming, and with the knowledge that a protracted trial would not be in anyone’s best interests, the parties agreed that a pre-trial conference might be the best route towards agreement on some issues, if not a final resolution.

Pre-trial conferences are one of the last few opportunities for parties to sit down and attempt to reach a settlement before proceeding to trial. In many ways, a pre-trial conference is like a mediation, only in a more formal court setting. A judge will offer his or her candid advice on the prospects of success for the parties at trial, and suggest opportunities for resolving the dispute. More often than not, matters will be resolved at these pre-trial conferences.

Having worked on this file beforehand, I knew that an actual settlement was unlikely. This would be the second pre-trial conference after the first had failed. The parties had strikingly different positions on the legal and factual issues. Nevertheless, I still jumped at the opportunity to attend the conference and see how things would end up.

Mr. Justice Todd L. Archibald

On the exact same day as this second conference, our firm held a client seminar on pre-trial conferences.  The attendees were very fortunate to be joined by Justice Archibald, who provided his personal insights on how these conferences are run, and how parties should approach such conferences. As luck would have it, both the mock pre-trial and the actual pre-trial conference were led by the same judge!

While at the seminar, Justice Archibald shared his thought process when presiding over a pre-trial conference. At the very beginning, His Honour would speak to counsel to obtain a lay of the land. This would afford him an opportunity to gauge the matter and each parties' respective positions. This also allows counsel to be candid about their positions without the added pressure of having their clients present. Justice Archibald then holds individual caucuses with each party and their counsel. He attempts to be as honest as he can be, and tell each party where they stand; where their positions are strong, and where it may be a better idea to back down. By being forthright in his opinions, Justice Archibald has been able to settle a vast majority of the cases put before him. In fact, he was similarly able to quickly settle the mock pre-trial conference held at the seminar in a record 60 minutes! (But he did stipulate that these proceedings would, in fact, take a day or two to get all parties to this stage.)

MB's Transportation Mock Pre-Trial

Having heard all of this at the seminar, I was eager to see how Justice Archibald would be like in a real pre-trial conference. It quickly became clear that everything he shared was true. From his approach to speaking with the various parties, to his incredible ability to quickly cut to the chase, Justice Archibald showcased all the methods he discussed when managing this conference. And, just like at the seminar, Justice Archibald was able to settle this real legal case too.

So, unlike those legal dramas I mentioned earlier, I won’t get the opportunity to watch this case unfold under the auspices of a courtroom. But, what matters most is that everyone involved obtained results that led to a just and final settlement.

Go to MB’s Mock Pre-Trial Handouts page to read the Mockuments: Fact Summary, Pre-Trial Memos, and the Case Summary.

Victoria M.

Litigation: Yours to Discover

As we cross the midpoint of our summer at MB, we’ve definitely dipped our toes into the cool waters of civil litigation and have learned some useful things over the past seven weeks - including how much we still have to learn! We’ve all fallen into a rhythm of working on assignments, interacting with lawyers & clients, and chatting up a storm when we’re together as a group (trust me, we’re just as friendly as we come across in Mel’s earlier blog).

My first trip to a magical place of the “real legal world”.

But, once in a while, our work rhythm hits a wave and we get an opportunity to leave the confines of the office. Whether it comes through the list, or whether we’ve been approached in-person, each of us has been offered a chance to go outside and experience law in action.

My first trip to the magical place of the “real legal world” came in the form of an invite to attend a discovery for a slip and fall case. I arrived bright-eyed and bushy-tailed the very next morning, eager to take note of every word spoken.

For those of you who might not know, a discovery is a pre-trial process during which both parties are supposed to lay all their cards on the table. Unlike in TV legal dramas, the Canadian civil system doesn’t want big, dramatic courtroom revelations; instead, the pre-trial process is meant to focus on settlement and avoidance of going the expensive trial route. The main goal for each party at a discovery is to extract as much relevant information as possible in the hopes of understanding all parts of the other side’s case.

At my discovery, there were multiple parties involved. And so, it was fascinating to watch the tactics each counsel used to obtain the information they wanted. Even though the atmosphere was collegial (unlike in a courtroom setting, everyone sits around a table in a boardroom-style office) it was easy to distinguish the different approaches of the various counsel present. Each lawyer had their own questioning style, and it only became more apparent what objectives each party had once we reached the nitty-gritty details of the accident. Some were friendly while others were more hard-line with their style of questioning. Unsurprisingly, each was successful in its own way; namely, getting the information they wanted. There can also be nerve-wracking moments at discoveries. At one point, we were all stuck waiting for more than two hours because of an unavoidable delay. Thankfully, there was amazing food and the great company of lawyers at the top of their game to make the time fly by. (Tip: When attending a discovery, go with an empty stomach. I can’t tell you how much I regretted eating breakfast after seeing the huge variety of delicious foods available.)

So, what was the most important thing I learned at my discovery? Don’t underestimate its importance! Because of significant inconsistencies in the answers provided about the accident, the case was no longer rock-solid, and there was talk of dismissing the action altogether.

Each part of the civil litigation process is like a puzzle piece, with its own role in anchoring the outcome. So, over the remaining five weeks, we’re all excited to learn more about how all those puzzle pieces come together and form a complete picture!

Victoria M.