Speaking on my very first motion…alone!

DING DING. Off goes the list serve notification, and a new assignment has just come in for me. As I read the email, suddenly I am hit with a wave of excitement, and then utter fear. I have just been assigned to speak at an unopposed motion to request an adjournment…alone. Every litigator loves being in the courtroom, and consequently, I have always dreamed of speaking in court. However, now that the dream was about to be a reality, I felt immensely unprepared. >

"How am I supposed to speak in front of a real judge? How am I being trusted with this? What if I screw up big time? So many questions were rushing through my head."

As articling students, we are afforded the opportunity to speak at all types of motions. Despite this motion being unopposed, I knew this does not diminish the level of preparation I would require. I instantly knew that in order to be prepared for this, I needed to take advantage of all the resources available to me at McCague Borlack. First, I called the assigning lawyer, and he walked me through everything I needed to know. I was to look through all the materials, including the motion record, supporting motion record, evidence, and pleadings. I reviewed these in-depth, as my motto in life has always been that there is no such thing as over-preparation (we can debate this another time). Once I felt like I really had the materials down and understood the case, I began to draw a very sparse outline of points I want to make sure I cover. You never want to be reading from a script in front of a judge. However, it can be a nice piece of mind to have a few bullet points near you of the main gist of what you want to say, especially for your first time. I picked this practice up from my mooting days which was now proving to be an asset in terms of experience. Once the sparse outline was done, I got to practicing in front of a mirror to ensure I was prepared to articulate what I was seeking from the judge in a professional and competent manner.

Despite my preparation, I was still terrified the morning of. Every lawyer I spoke to told me I would be fine and not to stress, but I was still worried about all the “what ifs”. I made it to be some monster it wasn’t. I attended the motion (on zoom, as most motions are still being heard through video conference), outlined to the Associate Judge what exactly we were seeking, directed her to the exhibits which supported what we sought, and evidenced that the motion was unopposed. The next thing I know, the Associate Justice told me the adjournment has been granted and the endorsement will be sent shortly. I was dumbfounded – it was all over within 10 minutes! The first thing I thought to myself was that I had shed a skin. I had my first independent appearance in court and didn’t fail. It was an amazing learning opportunity and I know I will be less terrified for the next opportunity to appear independently in court. And yes, I say less terrified because let’s be real; the nerves never truly leave in entirety.

by Anita Z.

The Virgin Diary Part II – My First Pretrial

I was recently given the opportunity to assist a lawyer on a claim involving a motor vehicle accident. The matter was coming up for a second pre-trial conference, which is one of the last opportunities for the parties to settle the dispute.

After researching different areas of the law, drafting the pretrial brief and
compiling the documents, I was prepared to attend the pretrial conference.

I had taken courses in alternative dispute resolution in law school and attended mediations but I didn’t really know what to expect from a pretrial conference. At a pretrial, there is a judge guiding the parties, trying to bring the parties towards a settlement. I was unsure how this was going to look and how this would affect all the parties’ arguments and settlement positions.

The pretrial took place in a setting resembling that of a boardroom with the judge sitting at the head of the table and the parties sitting on either side.

Below are my top 5 discoveries from the pretrial conference:

The judge means business. After walking into the room the judge immediately asked for updated settlement numbers and whether the parties were any closer to settling the matter. No pleasantries were exchanged or small talk was had.

Turned into a mediation. The judge thought it was best for the different sides to be in separate rooms and for the judge to go back and forth between the rooms like in a mediation.

Be ready for anything. No matter how much you prepare and how well you know the law, unanticipated questions and issues of the case arise. As such, it is imperative that you are quick on your feet and can find the answers in your materials as quickly as possible.

Settlement negotiation is an art form. Each lawyer has their own unique negotiation style and technique. Sometimes a lawyer will use more than one style depending on the issue being debated.

Coming close but not close enough. In this claim, there were many issues in dispute both in liability and in damages. As a result, it was very difficult for the parties to make a deal. However, on many issues, the parties made substantial ground and came much closer to a settlement.

Overall, the pretrial conference was a great experience and I look forward to being exposed to many more new opportunities as articling continues.

p.s. Read The Virgin Diary Part I - Mediations

by Israel K.

Why Litigation?

It is that (exciting) time of the year when law students are preparing for their applications for 2018 recruitment and are reaching out to summer law students and associates to learn about their firm and experience.

One of the common questions that I have been asked is 

"How did you know you liked litigation?”

Mooting

In my first year of law school, I participated in two moot competitions. It was exhilarating to step up to the podium, be tackled with difficult questions by the Judge, and have to formulate an answer on the spot.

Similar to mooting, having to speak in front of a Judge, Master, and others is common in litigation. The summer students at McCague Borlack LLP have attended mediations, discoveries, motions, and pre-trials, with the associates to learn various litigating styles.

Having experience with moots helps to know whether you will enjoy litigation. However, if you do not have mooting experience, that is okay!

Exposure to the Courtroom

As an extern at the Michigan Court of Appeals, I spent a few days at Court observing litigators. During those few days, I sat quietly at the back of the courtroom and watched both Judges and litigators converse, trying to come to a resolution for the legal issue at hand. After I completed my externship, I knew that litigating is something I wanted to pursue in my legal career.

by Anisha Bhardwaj

Pre-Trial Conferences: Down to the Wire

Television shows like The Good Wife or Suits often glamourize the life of the lawyer, and make it seem like trials are an everyday occurrence. Many of these legal dramas showcase a different trial in each episode. The reality, though, is very different. The scarcity of judicial resources, coupled with the financial burden and the extraordinary length of time spent litigating matters means that the legal system is inclined to push for settlement before trial. However, there are times when matters simply cannot be resolved. It is then that lawyers must take on the task that we see so often on television, and proceed to trial, complete with witnesses, robes, and sometimes even juries.

...the parties agreed that a pre-trial conference might be the best route towards agreement on some issues...

For the last few weeks, I have had the opportunity to assist with one of the upcoming trials at our firm. The case was complex, with multiple parties and many issues in contention. In fact, the trial was originally scheduled to go on for several weeks! With the start date looming, and with the knowledge that a protracted trial would not be in anyone’s best interests, the parties agreed that a pre-trial conference might be the best route towards agreement on some issues, if not a final resolution.

Pre-trial conferences are one of the last few opportunities for parties to sit down and attempt to reach a settlement before proceeding to trial. In many ways, a pre-trial conference is like a mediation, only in a more formal court setting. A judge will offer his or her candid advice on the prospects of success for the parties at trial, and suggest opportunities for resolving the dispute. More often than not, matters will be resolved at these pre-trial conferences.

Having worked on this file beforehand, I knew that an actual settlement was unlikely. This would be the second pre-trial conference after the first had failed. The parties had strikingly different positions on the legal and factual issues. Nevertheless, I still jumped at the opportunity to attend the conference and see how things would end up.

Mr. Justice Todd L. Archibald

On the exact same day as this second conference, our firm held a client seminar on pre-trial conferences.  The attendees were very fortunate to be joined by Justice Archibald, who provided his personal insights on how these conferences are run, and how parties should approach such conferences. As luck would have it, both the mock pre-trial and the actual pre-trial conference were led by the same judge!

While at the seminar, Justice Archibald shared his thought process when presiding over a pre-trial conference. At the very beginning, His Honour would speak to counsel to obtain a lay of the land. This would afford him an opportunity to gauge the matter and each parties' respective positions. This also allows counsel to be candid about their positions without the added pressure of having their clients present. Justice Archibald then holds individual caucuses with each party and their counsel. He attempts to be as honest as he can be, and tell each party where they stand; where their positions are strong, and where it may be a better idea to back down. By being forthright in his opinions, Justice Archibald has been able to settle a vast majority of the cases put before him. In fact, he was similarly able to quickly settle the mock pre-trial conference held at the seminar in a record 60 minutes! (But he did stipulate that these proceedings would, in fact, take a day or two to get all parties to this stage.)

MB's Transportation Mock Pre-Trial

Having heard all of this at the seminar, I was eager to see how Justice Archibald would be like in a real pre-trial conference. It quickly became clear that everything he shared was true. From his approach to speaking with the various parties, to his incredible ability to quickly cut to the chase, Justice Archibald showcased all the methods he discussed when managing this conference. And, just like at the seminar, Justice Archibald was able to settle this real legal case too.

So, unlike those legal dramas I mentioned earlier, I won’t get the opportunity to watch this case unfold under the auspices of a courtroom. But, what matters most is that everyone involved obtained results that led to a just and final settlement.

Go to MB’s Mock Pre-Trial Handouts page to read the Mockuments: Fact Summary, Pre-Trial Memos, and the Case Summary.

Victoria M.

My First Civil Jury Trial: Yes while Articling!

This past September, I was fortunate enough to be offered what many articling students and even young lawyers only dream of in their first years of practice. One of the lawyers in the Ottawa office had a three-week trial coming up, and it was just my luck to be asked to assist. So only one month into my articling term, I began my participation in the wild ride that is a civil jury trial.

I'll touch on the more human elements that I found were notable throughout my experience...

The case involved a motor vehicle accident in which the plaintiff had been hit from behind by our insured. The damage to both vehicles was negligible, but the plaintiff alleged that the minor injuries she had suffered as a result of the crash had developed into chronic pain, thereby altering her life and making her unable to work. Although I could go into detail about the legal and technical aspects of the trial, instead I'll touch on the more human elements that I found notable throughout my experience...

Gloves Are Off
Although counsel for either side is 100% committed to their client’s position, it was interesting to see the interactions between lawyers when the gloves are off. Every conversation remained pleasant and respectful, without an ounce of animosity between them. These were experienced “colleagues” who understood the importance of the work, yet had no interest in creating a personal feud between themselves on the sidelines. As a lawyer, you have to make use of every advantage, but that doesn’t include treating your opponent with disrespect. These lawyers seemed to appreciate each other’s company, and I must say it made for an enjoyable three weeks.

Addressing the Court
Interactions with the judge included the usual formalities, such as the bow when he enters and leaves (something I’ve yet to master), and counsel was very respectful when they addressed the court. Yet, the judge is not necessarily a godlike authority that needs to be feared; he was a person, like everyone else in the courtroom, and it was evident that he cared about the interests of everyone involved. He listened to input from both sides before making decisions and tried to accommodate everyone with regard to the schedule. He even made a joke or two!

Interests on the Line
It struck me how much emotion is involved in a trial. For the lawyers, when you consider the endless hours of preparation and the need to be mentally focused at all times, leading a trial is, as my supervising lawyer told me, “a grind”. For the jury, they have to listen to hours of testimony and are tasked with becoming knowledgeable in everything from human anatomy to actuarial calculations. Further, they have to assess the credibility of witnesses while being steered in two opposite directions by very dedicated lawyers. Last but not least, for the parties involved, it must be extremely stressful because your interests are on the line. In this case, it must have been especially demanding for the plaintiff, who had every aspect of her life dissected in front of all, for three weeks no less.


Trials can be emotionally overwhelming for anyone involved, and I now understand why the courts tend to recommend that parties settle their disputes, if possible, before it gets to trial.

Despite that, it was an amazing ride and learning opportunity, and I hope to be part of other trials in the years ahead.

Alex R.

First Appearances at Motion Court

Every law student envisions their day in court differently. But for most students, facing the judge is likely the scariest part of it all. Eleven days into articling, I attended my first motion at Brampton Civil court. It was a routine motion, but naturally, I was still very excited and anxious. Being the first of our student group to attend a motion, they were all anxious for me; “Our first motion!!” they said. In preparing for the motion, I spoke with a number of lawyers at the office in addition to the assigning lawyer. At the end of one conversation, I said “That’s very helpful, thank you, I just wanted to know what to expect”. The lawyer replied: “You can never really know what to expect.” Well, ain’t that the truth.

So the day came and I arrived at the Brampton courthouse...

So the day came and I arrived at the Brampton courthouse. There were about 15 matters on the docket in the courtroom I was at. I looked around at the other lawyers who all looked like they knew what they were doing, I tried to fit in. As the first few motions went by, I began to realize something I did not expect. A judge is a real person! This particular Justice’s interest was in family law. Whenever a family law matter came before him, he spoke to the parties about his concerns and the issues at stake. During civil matters, I heard him explain his discomfort in dispensing with service and reasoned why in the particular circumstances he would grant it. It was like my law textbooks had jumped to life! When it came time for my motion, I was considerably more at ease. Before I knew it, I had my first order. Four weeks later, I was asked to attend another motion, this time in Toronto. I remembered my lesson from my first attendance, and reviewed the motion materials by asking myself, “Why are we asking for this order from the court? What makes it reasonable?” I reminded myself that the judges are there to resolve the matter as fair and practicable as possible.

This proved even truer on my second motion attendance. Upon arrival, I was informed my motion had been redirected to another courtroom. When I got there, two counsels were getting very heated over their own respective calendars. The judge, therefore, asked them to consult between themselves outside the courtroom so he could get to the other matters. On a later matter, one counsel repeatedly would not schedule a trial even though several dates in 2016 were given, as he had a long trial around that time. The judge finally said to him: “Counsel, given that 97% of matters settle before trial, and in the interest of moving the [trial] list along, perhaps double booking trials in 2016 is not such a bad idea. Let’s not live up to the reputation that in Toronto, you have to book trials 3 years in advance”. The down to earth comment set a tone for the remainder of the scheduling matters and reminded everyone of the reality that surrounds every legal battle.

As for me, it turns out that the Justice had already reviewed the file I was appearing for and was therefore familiar with it. He had moved me up to his courtroom because he did not want me to run into any issues in the other courtroom. After I spoke to the motion, he then told me he would sign the order and endorsement in his chambers since he had the file there. I was surprised at how he took the time and effort to ensure that the motion would be properly addressed.

I never expected to find myself in chambers on my second motion attendance, but there I was. You can never really know what to expect, indeed!

Leona K.