Preparing for Mediation

Contrary to popular belief, trials don’t happen every day. However, trials are not the only opportunity to flex your litigious muscles. Another forum is mediation. I have been fortunate enough to attend two mediations so far during my articling term and assist in the preparation of two mediation briefs.

In practice, a mediation begins with both sides sitting across from each other at a boardroom table. Counsel for each side is given the opportunity to make opening statements. This is potentially the first and last time a lawyer presents the strengths of their case while highlighting the weaknesses of the other side.

The two sides then move to separate rooms which the mediator
will bounce between carrying messages such as offers or concerns.

One thing I learned in preparing for mediation is the compounding nature of a case. Everything in the practice of law builds off of the previous step. Information from the pleadings informs what will be asked at the examination for discovery while the answers and undertakings given at discovery lay the foundation for potential motions and documentary production, and so on and so forth. Preparing a mediation brief gives you the chance to get to know a file in depth and use what is in there to outline the facts and tackle key points at issue. One of the purposes of mediation, especially in Kitchener where mediation is not mandatory, is to try and settle, therefore, it represents a pivotal point in the progression of a matter.

In season 2 of the television show Ozark, the lawyer character had a clever response when being asked why she couldn’t do a certain task. The main character Marty Byrde says “I’m an accountant, I move money around” and the lawyer responded, “I’m a lawyer, I move words around.” Now, is that all there is to one being a lawyer? Of course not. But at a basic level, when trying to be persuasive and convincing, that is sometimes what you are doing. I relished the opportunity the ‘move words around’ when preparing the mediation brief and further develop my ability to frame arguments, which is a learned skill.

As for advice, what should come as no surprise is that my second mediation brief was much better than my first. That is a recurring theme as an articling student. In a general sense, after every task or assignment you complete, you learn something. You may not even realize it right away but the next time you are assigned that task, you will do it better. Even a 1% improvement makes a massive difference in the long run.

It will seem difficult at first but you have to welcome any challenge and treat it as the learning experience it will eventually be.






To quote Bojack Horseman:

It gets easier.
Every day it gets a little easier
But you gotta do it every day – that’s the hard part.
But it does get easier.

by Theomarcus G.

Lessons learned at the half-way point

Somehow, it is already the halfway point for us articling students. The amount we have learned in just five months is incredible. Here are my top three lessons learned so far:

It’s important to push yourself outside of your comfort zone…

One of the many reasons we are fortunate as students at McCague Borlack is because our firm practices in a wide variety of different areas of the law. This has allowed me to have countless opportunities to assist lawyers in areas of the law that I had never studied in law school. This was a bit daunting at first, but I quickly began to love it when I was asked to assist with a type of file or task I had never been exposed to before. Similarly, lawyers at the firm have always been nothing but inclusive and encouraging whenever I have expressed an interest in learning more about a particular area of the law. If I had shied away from these opportunities, or not taken the initiative to pursue files I was curious about, I would have missed out on many lessons and positive experiences.

…but it’s important to realize that it’s called “practicing” law for a reason

As articling students, we are innately overachievers and always striving for excellence. As such, it is obviously a tough pill to swallow when you realize you won’t master drafting motion materials, mediation briefs, pleadings, etc on your very first try. Or even your second. It’s important to realize that it’s okay to wobble a bit before you hit your stride. Luckily, everyone at the firm is quick to provide mentorship and share best practices. After a while, you start to realize that practicing law is exactly that – there will always be room for improvement, the law is always evolving, and articling is just the start of a career-long learning process.

… This is why it is important to always be humble, helpful, and respectful.

Legal dramas on TV couldn’t be further from reality. During the first half of my articling, I have had the chance to observe a trial, pretrial conference, and numerous mediations and examinations for discovery. One of the most consistent things I have observed is counsel for each party working together in a respectful and courteous manner to achieve an outcome that is in the best interest of the clients involved in a matter. While it can make for a scintillating television plot, in reality, nothing is gained by treating opposing counsel as an adversary.

I look forward to the lessons the next half of articling will bring.

by Priya C.

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 C.

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.

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 P.

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