Monday 25 November 2013

Good Morning Your Honour… Court Appearances 101

One of the best parts of being a law student at MB is the amount of courtroom experience we get. From very early on, we attend settlement conferences, motions and if the files do not end up settling, we will even run our own trials. Now, I cannot speak to running my own trial (yet), but in the first three months of articling, I have already attended 3 settlement conferences and over 10 motions. The best part? For all of these appearances, the supervising lawyers have trusted me enough to attend on my own.

The key... with a settlement conference is the Deputy Judge will want to know what you are prepared to offer to the other side.

As summer students, our first solo appearances were attending settlement conferences for the Small Claims Court files we had carriage of. The key fact to remember with a settlement conference is the Deputy Judge will want to know what you are prepared to offer to the other side. Regardless of how much settlement authority your client has given you, it is your job as your client’s advocate to make your position and offer appealing to both the court, and the opposing party (even if your best [and most reasonable] offer is to go out without costs).

As articling students, although we still attend settlement conferences, I have found that the majority of my solo court appearances have been attending motions. While the Law Society restricts what kind of motions articling students may speak to (for good reason), we are still able to deal with a host of interesting issues. As always, the key to good advocacy is being well prepared (especially with motions). Never assume that the Master or Judge has (a) read your materials, and (b) will automatically agree with your position; so prepare for both possibilities. Identify the issues ahead of time with your supervising lawyer, and know how to address them. Be prepared to explain all of the supporting evidence in the affidavit to the Judge/Master, and be prepared for the Judge/Master to not give you the relief you sought, and/or to require you to return with a different draft Order. That day. Typed. Think about these things ahead of time, when you have the time to prepare an alternate draft Order, or to review the affidavit so you can speak to the issues without fumbling through the motion record. If you are nervous, or if it is one of your first motions, script out your introduction (good morning Master, my name is Caverson, first initial A, here for the plaintiff), and have a bullet point list of information you need to address.

image from free digital photos
If you have to remember one thing about appearing in court, remember to prepare in advance. If you have reviewed your material, you know what has happened on the file, and you know what you need to get (from the court or opposing party) at the end of the day, you will be just fine.

Also, don’t forget to breathe.
Alyssa C.

Thursday 14 November 2013

The Power of Preparation

The time is 9:10 am. The room is filled with professionals of all ages, sitting around tables with notepads open, pens poised, and coffees steaming. With a few taps on the microphone, all attention swivels to the front of the room where nine people sit around a u-shaped table. As they take a last look at their notes, the mediator begins to speak and they all settle in for the morning’s show…

...we learned just how much work goes into preparing for mediation – real or staged.

No, these are not the stage directions for a new play in town, but rather how I spent a morning last week. A month ago, an email went out around the firm that one of the partners was putting on a mediation advocacy seminar and would anyone like to volunteer to participate. The articling students jumped at the opportunity to partake, and, along with a few of the associates, we learned just how much work goes into preparing for mediation – real or staged.

At our first prep meeting for the mock mediation, it was stressed that preparation was the key to doing a good job. We needed to learn our roles, be they as clients or counsel, know what our goals and motivations are, and prepare for how we would react when information we didn’t necessarily want to come out came out.

I myself was playing a particularly unhinged client, lying to herself, her lawyer, and her employer. My character had gone to Jamaica with her boyfriend while on Short Term Disability, and had lied about her troubled history with drugs, alcohol, and the law on her job application. She wanted to keep her job, but more than that, she wanted to feel vindicated in the decisions she had made.

As I learned more about my character and how I wanted to present her I realized that the kind of investigation I was doing was the same I would need to do if I was representing her instead of simply playing her at mediation. In order to be a good advocate, it would not be enough to just replicate the pleadings and take information at face value into mediation.  ddpavumba
And so as the mediation unfolded and we each played our parts – intentionally flawed to show the pitfalls of styles perfectly acceptable in the truly adversarial courtroom setting – we all felt the power of preparation taking over. When information we were unaware of was presented to us, we were able to respond convincingly. When the mediator asked questions that went three or four levels deep about our motivations, we were able to give plausible explanations. While the rave reviews at the end of the seminar were heartening (it was suggested we take the show on the road!), what we really took away was that there simply is no substitute to being well prepared.
Kati A.