Why Litigation Boutique?

Last November, I had the opportunity to participate in the OCI recruitment process for the second time, and from the other side of the table. In just 3 short, but also very long days, I shared my articling experience with, what felt like 100, candidates. By the end, I realized (a) I can talk someone’s ears off, and (b) many people were surprised to hear how exciting and diverse our litigation practice and specifically, our insurance defence work could be. Our firm can provide any aspiring litigator with excellent hands-on experience—and very early on in their career.

Litigation Experience

"Every file we work on teaches us about some aspect of the litigation process." 

As a Summer Student, I learned about the nuts and bolts of this process by assisting with examinations for discovery, motion materials, research, and mediations. As an Articling Student, I gained more insight into the life of a claim from the beginning; by participating in client intake, drafting pleadings, preparing for discoveries, mediations, pre-trials, and even trial. This gave me the “big picture” perspective of what it is we do. As I gain more experience with the process, I feel more comfortable with the idea of working as a litigation lawyer after articling ends.

While it’s not always realistic to see a single file from beginning to end during an articling term, small claims files can and do provide that opportunity and at MB, Articling Students have carriage of small claims files. These files provide a great learning opportunity for drafting, settlement discussions, and if it comes to it, trial. We are also learning to be the main contact for our clients by briefing them on the status of the case, and if necessary, preparing them for trial.

Diverse Work

Many just think of motor vehicle accidents and slip and fall injuries when they think of insurance defence, but insurance defence work can actually be incredibly diverse. In addition to commercial litigation, I’ve already had a chance to work in the following areas of law, all surprisingly under the heading of insurance defence:

• Employment law (employee & management-side)  • Criminal law • Coverage • Professional Negligence • Administrative law • Human rights law

• Cannabis law • Contract law • Product Liability • Environmental law • Property loss • Privacy law

While having diverse work makes for an interesting articling experience, it also tests your knowledge of litigation procedure and helps you develop the skills you need to be an effective litigator. For example, property loss assignments have taught me the invaluable skill of quantifying and proving damages—which is necessary for productive settlement discussions for any claim. Criminal law taught me to think on my feet and feel comfortable in a courtroom—because court appearances are frequent. Employment law taught me to anticipate and negotiate risk.

Additionally, our plaintiff and subrogation practices expose us to other skills that are necessary to be an effective advocate. This can be in the areas of product liability, construction, cyber and privacy, shareholder disputes, and estate litigation, to name a few.

Opportunities for Growth

The legalization of recreational cannabis is currently a hot topic in many industries, including insurance, and we’ve been receiving a lot of work in this area. As a result, I’ve assisted on property loss, risk management, and employment assignments all related to this topic. I don’t know what the next big thing will be or what the future holds, but I am excited to find out.

by Karolina I.

The Fantastic Five

In honour of our 5th month of articling, I have taken 5 Topics and for each, I’ve compiled a list of 5 tips to provide insight into our experience thus far.

I. Ways We Receive Work

1. The list - A lawyer can send an email to the articling students and whoever is next on “The List” gets the assignment.
   
   
2. Conflict Checks - Monitor & respond to a conflict check involving an area of law or a set of facts that you are interested in. There are always some unique files that catch my eye.  (p.s. this is a great one!)
   
   
3. Personal Touch - reaching out to lawyers personally. As a student, you may enjoy working with specific people and/or in certain areas of law. You can simply walk over to a lawyer’s office and ask them if they have any work that you can assist with. It’s as easy as it sounds.
4. Trading - Depending on availability and whether certain students prefer to work on specific tasks, you can trade jobs with fellow articling students.
   
   
5. Student Liaison - Ashley Faust is the Student Liaison at McCague Borlack and she checks in with the students to make sure we experience as much as possible. If there is something you want to do but haven’t yet, let her know and she will set you up! Two of my favourite attendances so far, including arguing contested costs hearing, were arranged by Ashley.

II. Events to look forward to

1. Orientation! - Honestly, the amount of times I refer to the material that was provided to us during orientation week is unbelievable. McCague offers articling students the opportunity to increase their knowledge exponentially within that first single week.
   
   
2. The Christmas party! - Don’t forget that the articling students are responsible for entertaining the audience during the Christmas party. We thoroughly enjoyed preparing for our skit and (we think) the audience enjoyed watching it just as much.
   
   
3. Christmas in January - Christmas party round 2? Almost. McCague Borlack hosts a Christmas in January event for clients and all members of the firm. It’s a great opportunity to get to know everyone better and have a chance to put a face to a name of a client you have been corresponding with through email for the past few months.
   
   
4. Practice Group Seminars - We have a number of practice groups at McCague Borlack. Recently the Transportation Law practice group put together a lunch and learn. This is another great opportunity for students to meet with clients, draft papers on specific areas of the law and even present on them!
   
   
5. After work socializing - It’s easy to plan social events among the students. Whether it’s a simple dinner at a restaurant or going to an escape room, the students are able to spend plenty of time together outside of work.

 III. Ways to learn

1. The library - Most of us use the internet for almost everything. I don’t blame us. But what if I told you that someone has already collected knowledge on the topic you’re researching, compiled it into a book, and that very same book found its way onto a shelf at McCague? The best place to start when researching or simply learning about a new topic is in your firm’s library!
   
   
2. Litigator - Of course, the internet is helpful too. At McCague, we have access to Westlaw’s database including a resource called “Litigator”. The best part of Litigator is that you can find pleadings and other material filed with the court in previous actions. These templates are useful tools and you can learn what to include, or avoid when drafting your own materials.
   
   
3. Asking questions - I’m sure this has been mentioned many times in previous blogs, but that is because it is so important! The collective amount of knowledge in the heads of everyone at the firm is huge. If you are stuck, ask around, there are many willing teachers.
   
   
4. Not asking questions - Yes that’s right. Part of learning is understanding how to independently find answers in an efficient manner. Of course, don’t hesitate to ask questions in urgent situations or once you have exhausted your other resources. However, the exercise of finding an answer is a learning experience in itself.
   
   
5. This Student Blog - We aren’t the first set of students at the firm and we won’t be the last. The blog has captured the experiences of the students who were in our exact position previously. It might have the answer you’re looking for!

IV. Things to Remember for your motion for leave to amend a Statement of Claim

1. Attach the amended Statement of Claim to your draft Order
2. A staple remover;
3. A mini stapler;
4. There is a Staples right beside the Toronto Courthouse;
5. Thank the associate who you ran into in the courtroom that helped you fix your draft Order minutes before the motion… thanks, Marla!

V. My Articling Bucket List

1. To argue a contested motion;
2. To settle a small claims file at a settlement conference;
3. To draft (even more) factums - they are great for working on your persuasive writing skills;
4. To watch a trial; and
5. To get hired back!

by Yousef E.

Preparing for Mediation

Contrary to popular belief, trials don’t happen every day. However, trials are not the only opportunity to flex your litigious muscles. Another forum is mediation. I have been fortunate enough to attend two mediations so far during my articling term and assist in the preparation of two mediation briefs.

In practice, a mediation begins with both sides sitting across from each other at a boardroom table. Counsel for each side is given the opportunity to make opening statements. This is potentially the first and last time a lawyer presents the strengths of their case while highlighting the weaknesses of the other side.

The two sides then move to separate rooms which the mediator
will bounce between carrying messages such as offers or concerns.

One thing I learned in preparing for mediation is the compounding nature of a case. Everything in the practice of law builds off of the previous step. Information from the pleadings informs what will be asked at the examination for discovery while the answers and undertakings given at discovery lay the foundation for potential motions and documentary production, and so on and so forth. Preparing a mediation brief gives you the chance to get to know a file in depth and use what is in there to outline the facts and tackle key points at issue. One of the purposes of mediation, especially in Kitchener where mediation is not mandatory, is to try and settle, therefore, it represents a pivotal point in the progression of a matter.

In season 2 of the television show Ozark, the lawyer character had a clever response when being asked why she couldn’t do a certain task. The main character Marty Byrde says “I’m an accountant, I move money around” and the lawyer responded, “I’m a lawyer, I move words around.” Now, is that all there is to one being a lawyer? Of course not. But at a basic level, when trying to be persuasive and convincing, that is sometimes what you are doing. I relished the opportunity the ‘move words around’ when preparing the mediation brief and further develop my ability to frame arguments, which is a learned skill.

As for advice, what should come as no surprise is that my second mediation brief was much better than my first. That is a recurring theme as an articling student. In a general sense, after every task or assignment you complete, you learn something. You may not even realize it right away but the next time you are assigned that task, you will do it better. Even a 1% improvement makes a massive difference in the long run.

It will seem difficult at first but you have to welcome any challenge and treat it as the learning experience it will eventually be.






To quote Bojack Horseman:

It gets easier.
Every day it gets a little easier
But you gotta do it every day – that’s the hard part.
But it does get easier.

by Theomarcus G.

Lessons learned at the half-way point

Somehow, it is already the halfway point for us articling students. The amount we have learned in just five months is incredible. Here are my top three lessons learned so far:

It’s important to push yourself outside of your comfort zone…

One of the many reasons we are fortunate as students at McCague Borlack is because our firm practices in a wide variety of different areas of the law. This has allowed me to have countless opportunities to assist lawyers in areas of the law that I had never studied in law school. This was a bit daunting at first, but I quickly began to love it when I was asked to assist with a type of file or task I had never been exposed to before. Similarly, lawyers at the firm have always been nothing but inclusive and encouraging whenever I have expressed an interest in learning more about a particular area of the law. If I had shied away from these opportunities, or not taken the initiative to pursue files I was curious about, I would have missed out on many lessons and positive experiences.

…but it’s important to realize that it’s called “practicing” law for a reason

As articling students, we are innately overachievers and always striving for excellence. As such, it is obviously a tough pill to swallow when you realize you won’t master drafting motion materials, mediation briefs, pleadings, etc on your very first try. Or even your second. It’s important to realize that it’s okay to wobble a bit before you hit your stride. Luckily, everyone at the firm is quick to provide mentorship and share best practices. After a while, you start to realize that practicing law is exactly that – there will always be room for improvement, the law is always evolving, and articling is just the start of a career-long learning process.

… This is why it is important to always be humble, helpful, and respectful.

Legal dramas on TV couldn’t be further from reality. During the first half of my articling, I have had the chance to observe a trial, pretrial conference, and numerous mediations and examinations for discovery. One of the most consistent things I have observed is counsel for each party working together in a respectful and courteous manner to achieve an outcome that is in the best interest of the clients involved in a matter. While it can make for a scintillating television plot, in reality, nothing is gained by treating opposing counsel as an adversary.

I look forward to the lessons the next half of articling will bring.

by Priya C.

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.