Tuesday, 2 August 2022

Field Trips – Expect the Unexpected!

picture from pexel

Summer student field trips at McCague Borlack can range from examinations of discoveries to mediations, pre-trials, arbitration and motions – all key parts of civil litigation.

  • An examination of discovery is a procedural part of litigation when the parties get to see what the other side’s facts, evidence and defence are. 

  •  Mediation is an alternative dispute resolution where an unbiased third party helps resolve the dispute between the two parties to reach a resolution.

    Both an examination of discovery and a mediation happen outside of the court.
  • A motion is a process by which one party submits a request to make an order to a Judge. The length of which varies, as it really depends on what is at issue and whether on consent. A basic consent motion can be less than 5 minutes, whereas a complicated multi-party motion can take up the better part of a day.
Students at MB play an active role in these field trips, often assisting with preparing key documents, and/or taking notes. These notes usually become part of the client report and are used throughout the life of the file.

Recently, I attended a motion where we were trying to get an adjournment. When we realized an adjournment would not be granted, instead, our lawyer had to make submissions (which are oral arguments) on the main issue. I did not expect submissions to be done during a motion, and that amped up the excitement of the field trip. Although this unpredictability seemed stressful at first, I learned from the lawyer on the file that litigators must be prepared for anything. As he stated, “Hope for the best but expect and plan for the worst!” Of course, he had the full submissions prepared and ready in case. 

Getting to hear litigators be zealous advocates in real-time, while also having my notes used for the client’s report makes me feel like I am contributing in a meaningful way and allows me to harness my own professional development.

That’s litigation – the learning curve is high, and the work is truly one of a kind.

Thursday, 14 July 2022

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!

Thursday, 30 June 2022

The Summer Students' First Day In Person!

Although we summer students have been working at MB for over a month now, the firm's offices have been effectively closed since COVID hit in 2020. But, Ashley Faust, our fearless leader and Student Director, pushed and pushed for the firm to have us back in the office this summer… AND it worked! 

As of this week, all of MB’s students were back in the office and it was great (to say the least)!

The day started around 10 a.m. when we were greeted by Ashley in the lobby of our building. We walked to the elevators and up to the 27th floor we went! I can speak for all of the students in saying that the office environment was very well organized, very bright, and an overall really nice surprise! We went over to our designated student area, where our desks were adorned with monitors, keyboards, mouses and LOTS of space. A common thought that students have about the office is that they will be working in windowless, dark cubicles for the summer. I can say with confidence that that’s not the case at MB! Our cubicles are spacious, with large desks, tons of windows with gorgeous Toronto views, and lots of spots to put your personal items.

I was largely impressed by the culture of the office environment. It was really great to see the excitement with which all the lawyers had while greeting their colleagues (and friends) that they had not seen much of (if at all) since the office closed in 2020. All of the lawyers which us students know by name took plenty of time to greet us and get to know us in person – which was a really great touch. As students at MB, you certainly do not feel overlooked. 

 Then, Kathryn Stroscher, the HR Manager, gave us a tour of MB’s two-floor office and the building. The tour included the amenities in the underground PATH, the food court, the most convenient ways to get in (and out), and of course the COVID and fire safety protocols. I’m not sure what I expected, but the office is huge! I know it’ll take me some time to learn the lay of the land.

 After settling into our desks, and chatting about our new and exciting surroundings, we finally got to work. At around 1:30 p.m., we ventured out of the office for lunch. Our summer cohort is very fortunate that we get along so well. We were missing, Naomi, one of our fellow students because she was at a discovery, but lunch was still a blast! 

 For the rest of the afternoon, we worked at our desks exchanging comments and questions between the students, got to know the lawyers and associates better, and got comfortable in our new office space. I headed home at around 5:30 p.m. (my usual log-off time) and relaxed! 

by Madeleine C.

Monday, 27 June 2022

My First Mediation

As a student at MB, I am given the opportunity to attend “field trips,” which allows me to attend pretrial conferences, discoveries, and mediations.

"Recently, I attended my first “field trip” which was a mediation."

During my first two years of law school, I participated in numerous moot competitions. However, unlike a moot competition which consists of a hypothetical scenario, this mediation consisted of facts and parties who are directly affected by the outcome of the case. I didn’t know what to expect from the mediation or how the disputing parties would work together to reach a resolution. What I did know going into the mediation is that it would involve a mediator (a neutral third party) who helps facilitate communication between the opposing parties with the hope of ultimately reaching a settlement that is beneficial for all parties involved.

Going into the mediation, I was asked to review the mediation briefs of the plaintiff and defendant. This was a helpful exercise in preparation for my attendance, as it gave me a glimpse into how each side was going to present their case on the day of the mediation.

The virtual mediation began with the mediator exchanging pleasantries with counsel. Despite the adversarial nature of litigation, counsel was friendly with one another and engaged in small talk, which is not what I had expected.

Then the mediator gave an opening statement to provide an overview of the mediation process. The plaintiff and defendant’s counsel then each presented their case. It was captivating to observe each side's persuasive oral advocacy skills when presenting their case.

After opening statements were heard, we were off to the races. The mediator helped facilitate the exchange of settlement offers between the plaintiff and defendant. It was great being able to observe counsel strategize and engage in various negotiation techniques, which helped me realize that there is an art to negotiation.

The informal nature of mediation allowed the disputing parties to exchange settlement offers confidentially, which meant that any settlement discussions at mediation would remain confidential and cannot be shared at trial. This proved to be highly beneficial as it allowed both parties to negotiate settlement offers that they otherwise might not be open to.

In the end, although the parties were making progress, there were several issues still in dispute with respect to damages and liability. Accordingly, it was difficult for the parties to reach a settlement.

While this mediation started off as an opportunity to take notes and absorb as much knowledge as I could, it quickly turned into an opportunity where I am now involved in the next steps of the file. Overall, the mediation was a fantastic experience and I’m excited to attend many more “field trips” this summer and learn as much as I can.

by Chanpreet S.

Monday, 20 June 2022

What's happened so far: the first few weeks...

Image  from Pixabay

The transition from student to practitioner can be daunting. So, what are some of the things I’ve encountered in the few weeks since beginning my summer at MB? As a student at a litigation boutique, my day-to-day work typically involves assisting with preparing various court documents and legal research. From the day the students began working on files after our orientation...

"I was immediately immersed in interesting files and provided meaningful and essential work to move a file forward."

Whether it be affidavits, motions, briefs or research memos, we always walk through the matter with the lawyer assigning the task through a call or conference. This is imperative because, as students, it’s essential we understand what’s expected of us. It also allows us an opportunity to ask as many questions as we need to be able to tackle the assignment. And when I say, “as many questions as we need,” I mean it. The culture at MB is one of support and collaboration. This means that the lawyers understand that as much as we are there to aid with matters, they are there to guide us in becoming expert litigators.

In addition to the meaningful assignments, I’ve had the opportunity to attend “field trips.” These field trips were attending discoveries and an arbitration. These attendances, which started as an opportunity to take notes and be a sponge through observing varying styles of oral advocacy and negotiation techniques, quickly evolved into being involved in the matter through exciting follow-up assignments.

Though it has only been a few weeks, they have been rewarding and full of learning. I don’t expect that to change any time soon.

by Arjun Raju

Wednesday, 15 June 2022

Initial Summer Student Experience: Here’s to Growth!

Aside from the excitement I had prior to starting as a Summer Student, I was unsure of what to expect. Will I enjoy the work? What will my colleagues be like? Will I have the necessary assistance if required? From my research of the firm, I knew I’d likely grow as both a student of the law and as an individual but I was uncertain about what that growth would entail.  

"Although my time with MB has only recently begun, I feel privileged to comment on my orientation experience."

Laying the framework for what to expect going in, I was happy to receive an orientation schedule as well as helpful aids. Our orientation was virtual, and there are plans to eventually integrate into the office. Throughout our orientation week, various firm members presented different aspects of the litigation process we’d need to familiarize ourselves with. This included handling defences, motions, subrogation, and small claims files. We also learned about firm-specific processes that law school does not teach. Questions were highly encouraged. So when the week was over, I was relieved that many of my original questions were answered. 

Along with expectations, a stable structure for receiving assignments was also laid out. MB maintains a 3-prong approach to work distribution. Assignments can be obtained by 

  1. Receiving an e-mail through the Summer Student server on a rotational basis; 
  2. Inquiring about work in areas of interest; and 
  3. Being specifically requested to take on a task. 

My first assignment was to draft a summary of a plaintiff’s productions in preparation for discovery. My second was to obtain a list of undertakings from the insured following discovery. I have also done some research, and most recently, I drafted a statement of claim. My next assignment is to review surveillance footage and reports on another matter (how cool!) I have quickly realized that assignments will vary depending on the type of file it is, expanding my overall range. A more prominent realization is that as a Summer Student, I am being trusted to handle key aspects of real-life litigation files. To say this is gratifying would be an understatement. As a future litigator, I’m thankful for the ability to further enhance my toolbox and grow.

On that note, I am happy to advise that I have only been “on the floor” for a week and I’ve already attended a two-day discovery, and have an arbitration scheduled for this week and a pre-trial at the end of the month.

Unsurprisingly, the journey of a law student is daunting at various stages. But I realize not knowing things is okay. There is no benefit to placing a perfectionist burden on myself. The most skilled, successful lawyers ask questions and endlessly learn from others. It is consistency along with curiosity and eagerness to learn that matters in the long run.

I'm eagerly looking forward to what’s to come. Here's to growth!

by Alan M.

Monday, 30 May 2022

Handling my own Small Claims File

One of the best parts of my articling experience has been having the opportunity to run my own Small Claims Court files. Due to the unique rules of the Small Claims Court, articling students have standing to appear as counsel without the need for the direct supervision of a fully licensed lawyer.

Throughout the last ten months, I was handed the reigns on three small claims files. Here are the highlights of one...

My first small claims file was a subrogation matter in which we were tasked with recouping funds that were paid to a homeowner by their insurance company after their property was damaged through the negligence of two third parties. I received this file in the first month of articling through the student list. The email read: “Who wants to take on this Small Claims matter?” I eagerly replied stating that I would be assisting. I was excited but felt a pang of nervousness: where do I start? What does running a file even involve?

After a quick call with the assigning lawyer, I had a game plan: first, to draft a litigation plan. This involved reviewing the client documents and drafting an initial opinion to advise our client what the strengths and weaknesses of the case are, what information we still need to obtain, and what our chances of recovery are. I was nervous about missing the mark (this was my first real legal opinion after all!) but comforted by the fact that someone would be reviewing my work.

After doing my research and drafting an opinion, I discussed it with the lawyer. A few rounds of revisions later, I was given the green light to send it to the client. I couldn’t believe that within the first month of articling I was already communicating directly with clients!

Next, I drafted the pleadings and contacted a process server to have them filed with the court and served on the defendants. Upon completing each step, and upon receiving each of the statements of defence, I notified the client. In addition to these regular updates, I was also tasked with drafting formal status reports every 90 days, as per this client's guidelines. This taught me the importance of using a tickler system so as not to miss an internal deadline.

Due to the nature of subrogation files, my goal throughout this file has been to recoup as much of the client’s losses as quickly and for as little expense as possible. The backlog in the Small Claims Court is extreme right now due to the pandemic, and I knew we would be waiting months for a settlement conference. Therefore, I took it upon myself to email the defendants with our damages documentation and to canvass their willingness to engage in settlement discussions.

Unfortunately, because this file involved two defendants who each pointed the finger at the other, we haven’t been able to settle through informal negotiations. The good news is that the Small Claims Courts have now resumed regular operations, so a settlement conference is on the horizon. I can’t wait to see what happens next, and I’m so glad to be at a firm that gives its students so much responsibility.

I believe running these small claims files has helped set me up for success after articling, and because of these experiences, I feel much more prepared to tackle whatever is thrown at me next.