Wednesday 28 November 2018

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.

Friday 9 November 2018

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.