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!

by Naomi S.

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.

“Be a sponge.” How I plan to make the most of my summer student experience

Starting a new job as a summer student was a bit intimidating for me. In unfamiliar situations, it is easier for me to stick with what I already know. However, if I want to make the most of my summer student experience, I know I have to step outside of my comfort zone and be open to new experiences.

During orientation week, one phrase the Director of Student Programs said that stuck was “be a sponge”. 

"As summer students, we will be hit with a lot of information

every day and it is our job to soak it up."

My goal is to absorb and learn as much as possible during this summer. The following is my plan on how to do this.

See every assignment as a new opportunity

My very first assignment involved drafting a defence for a Small Claims Court file that involved construction work. At first the task seemed very daunting because the documents I had to review were filled with construction lingo I had never heard before. However, I approached the assignment with an open mind and started working away. I probably had to Google every other word in the documents, but at the end of the day I not only learned how to draft a defence, but I also now know what an “overdig” is and what it’s for.

Ask if I can be part of the next step on a file

When I complete an assignment for a file or attend a field trip, I am going to ask the lawyer if I can be part of the next step on the file. For example, after attending an examination for discovery, I will ask if I can make an undertakings chart or do the discovery report. This will be a great way to stay involved in a file and build connections with different lawyers at the firm.

Ask for assignments in unfamiliar practice areas

I have never taken a class in employment law, so I asked to be kept in mind if anyone had an employment law file that they needed help with. I will continue to do this throughout the summer and sample all the different practice areas. This is a great way for me to learn which practice areas I may want to potentially specialize in later on in my career.

Reach out to all lawyers regardless of what location they are in

Although the firm has offices in Toronto, London, Barrie, Kitchener, and Ottawa, because all of our work is virtual, it is easier than ever to get assignments from lawyers at every office. Because of this, I could attend an examination for discovery in London, a mediation in Ottawa, and a pre-trial in Toronto all in one week! I am definitely using this to my advantage (COVID-19 silver lining!)

This is my time to be intellectually curious, ask questions and take advantage of every opportunity. I’ll report back in my next blog how this worked for me!

by Dominique M.

Weird Projects, Field Trips & RAAAPTORS!

After orientation, an email that came through for me on the file assignment list was ambiguously phrased,  “Who in Toronto wants to take on a weird project?” A thrill of both anticipation and slight apprehension ran through me. This sounded like a challenge, which only made me more excited as I collected my pen and notebook to discuss the file with the assigning partner. We chatted about the matter, which turned out to be a research assignment pertaining to an overseas John Doe who had fraudulently stolen a client’s funds through online hacking.

I was asked to determine the best way to move forward in order to recover our client’s losses and was given wide latitude in ascertaining what that might be.

This freely given trust and responsibility were exactly why I had admired MB’s student program. Excited, I sped back to my desk. Time to research!

Week 2: Spontaneous Field Trips

My first field trip was a contested motion in Superior Court, where I watched the negotiation process unfold between two lawyers outside the courtroom in a bid to save their client's costs by settling the matter early. In law school, we learn more theoretical and black letter law concepts, and therefore it was interesting to see how the law operates on an everyday, practical basis. Before this, I didn’t realize how much of a legal outcome relies on pragmatic and measured negotiation prior to actually speaking in front of a judge.

Then later an email came in off the list requesting that a student partakes in an examination for discovery. So I spent the next two days observing a multi-faceted examination where various parties were questioned by many different sets of counsel. I was responsible for transcribing all of the evidence and returned to the office with a deepened understanding of effective examination strategies. I also got to prepare undertakings charts based on my notes for all the parties who were examined! In-depth involvement in files such as this allows you to feel like, even as a summer student, you are doing practical and valuable work on a file.

Summer Students 2019: Jennifer and Chelsea 

Week 3: Accomplishments

On Monday, the whole firm celebrated the recent Raptor’s NBA Championship win! We had been told the week before to wear our favourite Raptor’s regalia to work, and a firm-wide email was sent out encouraging everyone to go see the parade. There was also a viewing party complete with pizza in one of our boardrooms, and everyone at the firm came together to enjoy the wave of excitement that was sweeping Canada.

The energy in the city carried me through the rest of the day, and I speedily started preparing motion materials for my previous John Doe assignment. The assigning Partner had wholeheartedly agreed with my recommendations for further action and told me to prepare a novel motion that our firm had never fully brought before. Again, the same familiar frisson of excitement tinged with a sliver of self-doubt; Can I do this? Did I really get my research right earlier?

The answers to the above questions are yes! I have just submitted my draft motion materials, and am looking forward to moving the file along further and keeping up with its future developments. Being involved with strategic decisions and taking charge of the next steps for the forward movement of a file is a heady feeling for a student who has just finished her second year of law school. I am excited for more opportunities to expand my capabilities in the future with MB!

by Chelsea D.

More than Just a “Suit” going on a field trip...

As I prepared to write this blog entry, I had a look at my calendar and realized that I will already have completed seven of the twelve weeks of my MB summer work term. It is truly incredible how time flies when you work in a fast-paced environment such as this, where you learn something new every day and you get challenged on a regular basis. The office in Ottawa is a great place to work; located in Ottawa’s downtown core, it has the pleasant, collegial feel of a small firm while still retaining the excitement and thrill of a larger firm through its affiliation with the Toronto office. Throughout these seven weeks, I have been very fortunate to work on a variety of files with exceptionally respectable lawyers. The truth is, I could write a blog entry for all the tasks I've completed and it would be an interesting read (OK, almost all the tasks). However, for this one, I've chosen to talk about my two trips to a wonderful town in the beautiful province of Quebec.

"a fire...brought the project to an unfortunate stop."

MB is currently working on a matter involving a construction project in this town. This construction was taking place on a bridge’s pillars, and a fire on one of these pillars brought the project to an unfortunate stop. We retained an expert to assist in the forensic investigation of the site, who joined three expert engineers of the other parties in trying to determine the cause of the fire. Since these three engineers were all locals from Quebec while our expert was a uni-lingual Anglophone (besides a few “Allo’s” and “oui oui’s” here and there), I was charged with making sure nothing got lost in translation. Being bilingual does have its advantages and it felt great to be able to put that skill into use to contribute.

The first time I got on to the construction site, I had absolutely no idea what to expect. I had a fairly nice shirt and running shoes on, but I quickly realized that I should have been wearing to the very least steel toe boots, as is typically required on such a site. So I did a quick scan of the area, hopped in one of the crew trailers and kindly asked the workers if I could borrow some gear. Next thing you know, I was ready to go with my steel toe Dunlop boots, safety vest, gloves and my trusted hard hat. Who said lawyers always had to wear a suit?

I climbed my way up the scaffolding and walked along a narrow walkway located on the underside of the bridge to get to the pillar. The layout was very interesting: a steel casing was installed around the pillar, from the base of the river up to about 40 feet, and there were 4 levels of wooden planks that we could walk on. I climbed down the ladder from the walkway to the fourth level and was given a detailed explanation of the site by our knowledgeable expert. The rubble from the fire had accumulated mainly on second and third levels. The first visit was mainly just an assessment of the work that needed to be done on the site, so after a walk around the pillar and a tour of the third level, we were out of there. However, on my second trip, the plan was to have the experts examine the rubble while the construction crew followed behind and threw out the useless pieces, which was unfortunately most of what we found.

"before I knew it, I was down on the second and third levels, shoveling away a mix of burnt two-by-fours, electrical wiring and wet ash."

At first, the experts and I were walking with our flashlights, taking pictures and notes while the workers were hauling burnt pieces of wood and shoveling the rubble. However, before I knew it, I was down on the second and third levels, shoveling away a mix of burnt two-by-fours, electrical wiring and wet ash. I’ve worked in construction before and it felt great to be able to help out, all while searching excitedly to find the one piece of evidence that would explain the cause. As our expert told me, investigations of fires can be like searching for a needle in a haystack without being sure that the needle exists. There’s a good chance that the cause cannot be determined, but it’s necessary to look through the entire evidence to be able to confirm that. Therefore, we shoveled away for most of the day, and headed to a warehouse the next day to examine what pieces we had found.


I felt this story was a good one to share because it demonstrates at what point it is important to be adaptable in our profession. I’m not saying that most of us will be throwing on a hard hat any time soon but it is incredible to see how diversified this type of work is. After only seven weeks here, I've become familiar with various types of claims that always involve a new and exciting scenario. Our profession requires us to become experts in plenty of fields, sometimes overnight, and I believe it is one reason why working as a lawyer is such a thrilling experience. As I was shoveling, one of the crew members looked at me and asked me who I was. I told him I was a lawyer, and my laugh said it all: More than just a “Suit”!

Alex R.

Summer of 2013 - Memorable Moments

With only a week left, I thought I would give the students a chance to list some of their best memories from this amazing summer for this week's blog.

We have had a lot of laughs and experiences this summer and want to share them with our MB blog readers!

Enjoy!   Sean V.

Q1. What skills have you developed this summer that will help you in your career? ...open

Ben - How to rely on people and support others in a busy work environment.
Garett - Manage files and communicating with clients, opposing counsel and other various parties.
Divya - Research skills, as well as time management, which is more important than anything else in being able to manage the heavy workload and meet deadlines.
Sam - Not to be afraid to ask questions, and don't judge a case by its set of facts - you never know what creative argument may be lurking around.
Brittany S - Time management – learned to track my time to be more efficient in completion of assignments and billing.
Brittany Sud - How to summarize voluminous productions into a manageable client reporting letter.

...close

Q2. What is the best assignment you have worked on this summer? ...open

Ben - Taking a file from start to finish in prep for trial
Joanna - Assisting on a debt collection file as I worked directly with the client from the very beginning and saw the matter through to the end.
Anthony - Attending my own settlement conference, and actually settling!
Irina - Drafting the initial litigation report and defence for a Family Mediator facing allegations of professional negligence and attending the settlement conference with a lawyer for this file.
Brittany S - Running my own small claims files!
Sean - Compile an Appeal Book and Compendium that was heading to the Ontario Court of Appeals and then file it at the court!

...close

Q3. What was your best "field trip" this summer? ...open

Sarah - My settlement conference in Midland because I really felt like I was in control (subject to the client's instructions); I negotiated with opposing counsel and the judge, and even made submissions before the court. I have never felt so "lawyer-ly" in my life!
Joanna - Attending examinations for discoveries with an associate lawyer relating to a MVA matter in Hamilton.
Anthony - A security for costs motion watching MB senior counsel argue a complex motion with senior counsel on the opposing side.
Garett - Attended a motion being argued by five incredibly experienced counsel. It was the closest "Law and Order" experience I have had thus far.
Irina - A marathon mediation in Barrie (9am to 7pm) in a very quaint court reporting office with an associate. Very contentious Personal Injury matter involving a motorcycle and the case reached a contingent settlement last minute!
Sean - A mediation with a partner concerning a Family Law file. It was incredible to watch 3 senior lawyers argue the merits of the case at hand.

...close

Q4. Sum up your summer experience in one sentence? ...open

Garett - I learned a lot, and was more capable than I thought, but I still have a lot to learn.
Divya - Busier than I expected but just as fun and exciting as I had hoped!
Sam - Worked hard, learned tons, and had fun!
Brittany S - Is there a precedent for this?
Brittany Sud - Work hard, sleep little.
Josh - Extremely educational and a constant challenge to make me improve and develop.

...close

Q5. What was your most memorable moment of the summer? ...open

Sarah - Dinner and Jays game with all of the summer students! Nothing says bonding like eating a massive amount of sweet potato fries.
Joanna - Meeting all the new summer students and developing a method of teamwork that is successful for this group.
Sam - Going out for dinner with the lawyers in my second week. Not only did I get to know the lawyers on a personal level, but I was also exposed to their senses of humor and relieved that I could reveal my own!
Irina - Attending a Settlement Conference in Windsor Small Claims Court via telephone alone! Calling co-defendant on their cell phone in Windsor because the court phone line had technical difficulties. After much technological failure, I successfully obtained a dismissal order to extricate our client out of action because they were wrongly named as a party to the action.
Josh - Sitting in on a two day examination for a very interesting file. The other lawyers on the file were very experienced and the content of the case was very unique.
Sean - Trying to hail a cab in the Toronto Flood of 2013!

...close

My day at mediation...

One of the perks of working at a litigation boutique is that you are exposed to a broad range of litigation topics. I have found that one of the main perks of being at McCague Borlack specifically is that if there is an area you are interested in, all you have to do is find a lawyer who does that type of work, advise them of your interest, and they’ll find a way to get you actively involved in a file. I was interested in learning about professional liability so I spoke to a few lawyers in that practice group and one of them invited me to assist on one of their files.

"Any time you are given an opportunity to see your work put into action, you take it!"

After meeting with the lawyer and receiving a quick rundown of the file (we were defending one of the named defendants – an insurance broker), he asked me to take a stab at writing the first draft of the mediation brief. One of the thrilling and challenging parts of being a student is that you have to be able to quickly review a file and identify the parties, and get up to speed on the legal issues and what the firm’s position is on liability and damages – writing the mediation brief was no different. After finalizing the first draft, I submitted my work and got great feedback from the lawyer, which is always a relief when taking on a new task! I was then invited to attend the mediation to observe, which I quickly accepted as I had yet to attend one this summer. Besides any time you are given an opportunity to see your work put into action, you take it!

We arrived at the reporting office and met with the client, who is an adjuster for an insurance company. After the mediator outlined the process, each party proceeded to state their positions and then everyone retreated into separate rooms to consult with their clients. Throughout the day, the mediator went back and forth between the rooms, speaking with the various parties (about their concerns and interests) and trying to facilitate an amicable settlement.

On its face, a mediation seems like a lot of sitting around and waiting. However, I found that if you use the time wisely you can learn a lot from observing and talking to the people involved. The lawyer who took me to the mediation was great. I did not feel like I was there to simply watch; he actively involved me in discussions with the client regarding our legal position and strategy for dealing with opposing counsel. Our client was also very friendly. We talked throughout the day and she answered many of my questions about the litigation process from the insurer’s perspective and I told her about my experience as a student – my first official act of client development!

One of the biggest advantages of being an MB summer student is having the opportunity to attend with lawyers at discoveries, mediations and court appearances (or as we refer to them, “field trips”). Not only do you get a feel for what it is like to be a litigator but you get to observe a variety of styles. After a few field trips, you quickly realize that there is a lot to being a lawyer that you do not learn in law school. While it is imperative to know the law and your file, you must also be able to persuasively communicate your objectives and effectively deal with a variety of (often conflicting) personalities.

Our file did not end up settling at mediation (the various parties couldn’t agree on liability apportionment) , and was thus deemed a “failed mediation”, however for me - the day was a great success!

Brittany S.