When possible, just pick up the phone

As a student, it can sometimes be quite intimidating to make a telephone call, especially, to a client, a witness or opposing counsel. It can seem easier to revert to the safety of an email for the purposes of communication. After all, with an email, you can take your time; write, review, re-write, and finally send with a click of a mouse. However, at times, it is much more efficient to just pick up the phone.

A frank conversation about the issues at hand can go a long way in finding a resolution that satisfies the needs of both parties.

There are numerous instances where a phone call is preferable: two common scenarios come to mind.

Opposing Counsel

It can be tempting to elaborate on your position to opposing counsel in an e-mail, to ensure that you get your point across clearly and convincingly. However, in some cases, a phone call is all it takes to understand the other party’s position and to get a better grasp on what it will take to settle the file. A frank conversation about the issues at hand can go a long way in finding a resolution that satisfies the needs of both parties.

Insured or Witness

To understand facts of a certain complexity, and to get a good sense of the events surrounding the claim, it is very useful to talk directly to the insured or a witness. For instance, I was working on a file that involved the failure of a septic system. I read the file contents and reviewed documentation on the internet, yet reading could only take my understanding of septic systems so far. After a telephone conversation with our client, where he clarified some of the more technical aspects of the claim, I had a much clearer idea of what had transpired. Sometimes, that’s all it takes!

In Summary

Of course, telephone calls are not always ideal, for reasons such as timing and availability for example. However, where possible, picking up the phone and getting right down to it can make our job a lot easier. As well, sometimes it’s simply more pleasant to have a chat with someone, rather than e-mailing back and forth. Just remember to keep a record of your conversations - see Aryeh’s post.

Alex R.

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.

Ready, Set, Go: Trial Time

It all started with a simple, unassuming email from a Senior Lawyer, “Come see me when you have a chance please.” It quickly went uphill from there. The lawyer indicated that he had a small claims court file that had gone to multiple settlement conferences and none of the three parties were willing to budge. “It’s going to trial in 2 months” he said, “Do you want to handle it?” Unsure whether or not this was a rhetorical question I emphatically answered with a “Yes!” After all, this is what we live for.

This is both the best and worst part of trial preparation....

I quickly took the file and began looking through it to understand what was going on. It’s difficult to pick up a file that has been ongoing for almost two years and try to understand everything that has happened. Also, this file was fairly technical and quite complicated, but that didn't bother me.

Trial preparation starts long before trial.
All documents that you are relying on, as well as a list of proposed witnesses, must be served 30 days prior to trial. This means that you have to start gathering your documents and building your case well in advance of that deadline. I tediously gathered all the documents that helped my position and drafted a brief that presented them in a manner that was easy to follow and in support of my arguments. As the deadline for service approached I finalized and sent my document brief and list of proposed witnesses to the opposing parties. Shortly thereafter, an Offer to Settle went out, so that you can take advantage of the cost consequences in the event of a successful trial.

That’s when the heat gets turned up.
When all parties are able to see the documents being relied on by the other parties, and their cases become clearer, you can’t help but compare it to your case and wonder how you will fair at trial. This is both the best and worst part of trial preparation. This is also followed by many rounds of conference calls with opposing counsel trying to narrow the issues for trial and trying to build up your case while looking for insight into theirs.

Its crunch time.
Before you know it, trial is a week away. You’re now fine tuning your trial strategy, preparing your questions for your own, and adverse witnesses, preparing your opening statement and going over your documents to make sure you won’t be surprised at trial.

Then, 3 days before trial, when you’re at the peak of preparation, you get “the call”. The plaintiff accepted the defendants’ offers to settle. Case settled. Trial cancelled. A part of you is disappointed that you didn’t get to go to trial and test your ability to effectively argue your position before a trier of fact. However, your client is thrilled that the matter was able to settle without the uncertainty, and cost, of going to trial; and at the end of the day, that’s the most important part!

David O.

If I could turn back time...

Even looking back to two months ago, before we were entrenched in attending settlement conferences or mediations, meeting with clients or presenting at seminars, or whether it’s just keeping up with the day to day carriage of our files, and doing it all, here are a couple things that I have learned that I wish I would have known before:

Here are a couple things that I have learned that I wish I would have known before...

1. No matter how confident you are in your case, opposing counsel usually feels the same way.

Now that I have been to a few settlement conferences and mediations, I have learned a lesson that all lawyers inevitably already know; opposing counsel usually thinks that they are just as right as you think you are. Now that I have come to this realization, I have increased my focus during preparation on better understanding what angle and approach the other side might take. Not only does this help me in determining deficiencies in my own case that I need to address (better I address it than have opposing counsel bring it up in court) but it also allows me to anticipate, and thus better respond to, the arguments that will be made against me.

2. If you’re not over prepared, you’re under prepared

The juggling act that we engage in before every appearance truly is a spectacle. We must be able to balance our time with our need to be fully prepared, and further with our need to act in a cost effective, yet efficient manner. However, after watching Masters refuse to grant various ex parte motions because counsel either could not provide answers to basic questions about their case or because they neglected to ensure that their pleadings were in accordance to the Rules, it appears that this problem doesn’t disappear once you are called to the bar. Being well prepared is a virtue, and although it may take some additional time upfront, in the long term it will almost always save you time, stress, and last minute research.

3. Lawyers are real people, in fact, so are partners

Now that we have experience working alongside partners and associates alike, the initial feeling of horror that we experienced when having to ask partners or senior lawyers a question is gone. Although they have significantly more experience and are much busier than us, they have no problem in answering even our most basic questions. An equally important finding is that as with most people, Partners have a sense of humour! For example, as I was sitting in a partner's office getting instructions on an assignment, he pointed to a stack of 10+ banker boxes next to me and said “that’s all the material for this file that you’ll need” just to laugh at the look of terror on my face (the file was in fact neatly stored into only 6 banker boxes).

4. Take a map whenever you walk in Toronto's PATH

At least once a week you will hear me say “I swear it was right here yesterday!” I can now draft complicated factums, argue motions and successfully attend settlement conferences, but I still cannot figure out where Yogen Fruz is!


With eight more months to the articling term, I can’t even imagine what else I will look back on and say ‘ if only I knew…”

David O.