Monday, 6 March 2017

Assisting on a Jury Trial: A Quick Reference Guide

A month into the articling term, I was asked to assist on a three-week jury trial alongside a partner and an associate at the firm. To assist future students, I have prepared a quick reference guide that I hope will prove beneficial.

...create a reference binder for yourself of all the key documents...

Master the Background Material

To ensure you are able to assist in the best manner possible, learn the case from both a plaintiff and defence perspective. An excellent starting point is reading (and re-reading) the pre-trial memorandums prepared by both plaintiff and defence counsel. It is important to understand not only the difference of opinions of the law but also the factual details in dispute. Facts matter.

After this, create a reference binder for yourself of all the key documents, including the pre-trial memorandums, expert reports, memorandums and summaries that have been prepared by you or your colleagues. So when receiving instructions from the partner or associate, you will have quick access to key documents in order to be ready for any inquiry posed by them.

On-Call 24/7 for Each Day of the Trial

The nature of a trial means that unanticipated tasks will need to be completed before the trial commences for the day, while the trial is being held, and after the trial convenes for the day.

The partner and associate will undoubtedly be preparing well before the trial’s start-time of that day and may need assistance with the preparation of documents, or assistance with the witnesses who will be testifying later that day. As such it is imperative that you are physically accessible to assist them before they leave for the day.

Moreover, as the trial progresses throughout the day, unanticipated issues may arise. The partner or associate may take a few moments during a break to email you a quick research task. It is important that you are available, efficient, and effective during these small windows of opportunity.

When the trial convenes for the day, again be on-hand to assist the lawyer as they prepare for the following day of trial. This may include, researching points of law, drafting submissions, and preparing other court documents that will be used during the trial.


Observe & Learn

While assisting, ask the partner and/or associate, which days would be best for you to attend and observe the trial. This will allow you witness not only a part of your work come to life, but also the strong advocacy from both plaintiff and defence counsel, their interactions with the jury, and equally important, their exchanges with the trial judge.

Fortunately, I was able to witness the opening statements by the partner from our firm, as well as the senior opposing counsel, where each took a different strategic approach when addressing the jury. I also witnessed a contentious cross-examination of the plaintiff, whereby, part of the background factual research I conducted earlier in the day was used to effectively cross-examine the witness.

After three fast-paced weeks, the jury came back with a verdict in our favour!

Friday, 10 February 2017

Half-time Status Check

They say "time flies", and so it should not be surprising that the first half of our articling experience has been a whirlwind. Our mid-articling reviews provided a valuable opportunity to stop and reflect on what we've done and what we would like to do for the remainder of our time.

Each of the students have provided feedback about their experiences so far, specifically:
  1. What has been your favourite experience?
  2. What is the most valuable skill you've learned?
  3. What is something that surprised you about articling?

Karen Bernofsky

1. Drafting factums. Researching the law, coming up with the strongest argument, and writing it in the most convincing way possible. I look forward to arguing a motion based on a factum I wrote in a couple of weeks!

2. Organization. At any given time you are working on multiple files and tasks, each with their own timelines. It is essential to have a strategy for managing them.

3. How much we get to see of a file. Because we don't rotate, we often get to take on multiple tasks on the same file over time, so we really get to see it through.



Mahdi Hussein

1. Assisting with a jury trial.

2. Organization is paramount.

3. How fast things become second nature - ie. motions, drafting legal arguments etc.




Shayan Kamalie


1. Settlement conferences, because you can see the intersection between the law and realities of business.

2. Research skills.

3. Learning: specifically how much you can learn in such a short amount of time.



Cassandra Khatchikian

1. Small Claims: I enjoy running my own small claims files and have especially enjoyed attending settlement conferences with clients.

2. First Writing: I learned how important point first writing is. This skill is especially important when drafting materials such as mediation briefs, where it is important to put your strongest points front and centre to emphasize your position.

3. Balance: The biggest surprise about articling is how important it is to maintain a good work and personal life balance.



Victoria Mitrova

1. Small Claims: Being able to run my own small claims matters from start to finish.  I've really learned a lot about the thought processes that go into the various different stages of litigation.

2. To summarize things succinctly. I like to talk (and by extension write) a lot, but writing short, simple, and to the point is a much better way of getting an idea across.

3. How time flies so quickly! Because we're so involved and busy with different assignments, there hasn't been too much time to be bored.


David Perron

1. I really enjoy appearing for motions. From the preparation of well drafted motion materials, to the actual attendance and having to quickly answer any question that may be thrown at you.

2. Properly drafting either pleadings, mediation briefs and letters. This is a skill that I am continuously improving and will continue to improve for the rest of my career.

3. The opportunities we are given to learn. We get to attend court on our own and draft key legal documents, like pleadings, mediation memos, and factums.


Marla Rosenblatt-Worth


1. I enjoy attending discoveries – it's a great way to see how the evidence unfolds. Counsel must prepare questions to support their theory of the case, and the witnesses bring personality to the story.

2. Revision, revision, revision. Brevity is key.

3. I am surprised by the variety of cases that fall within insurance law. I have gained exposure to areas that I did not initially realize would be of interest to me.



Rachael Segal

1. The litigation experience. From going to discoveries to conducting an examination in aid of execution on my own, I have really loved the pace and strategy behind oral advocacy.

2. How to think on my feet! While it is important to be prepared, you can't prepare for everything and you often need to be able to respond well quickly.

3. The number of different people that you work with on a daily basis. It's great to be able to learn from everyone individually and get to see a wide range of other people's working styles.

__________________

Poll done by Karen B

Tuesday, 17 January 2017

Where do you rank 'mentorship' in law firm selection?

During our first week of training, a line from one of the presenters really stood out to me: “We like to pride ourselves on being like a teaching hospital.” As soon as I heard this line I envisioned the six of us articling students were like characters from Grey’s Anatomy on their first day of their surgical residency, but instead of cutting people open, we got to draft statements of defence.

My mentor emailed,
  "I have an idea..."

One of the most mysterious aspects of the articling program is the role of the “Articling Principal.” The law society requires that one lawyer act as a principal to every articling student. On the first day of articling, we were each assigned a lawyer within the firm who would act as a mentor to us throughout the year. During my initial meeting with my principal, we discussed some of the challenges that I was anticipating, and he gave me advice on how to navigate my way around the firm. After this initial meeting, I knew that this was a relationship that would prove valuable to me over the course of my articling term. My principal and I have met on several occasions now, mainly as a “check-in” system to talk about my experience and some of the challenges that I face. He has offered me support and guidance on how to deal with these issues and has been diligent in following up with “how are things going?” emails.

His most recent email stated, “I have an idea.” That idea turned out to be giving me my “own” file, meaning that I would be responsible for the progress of the file (which he would oversee, of course). Throughout this process, I have been challenged to think for myself, come up with answers in short periods of time, and really become well acquainted with managing files properly and how to work in the client’s best interest.

Some may rank mentorship low on their list of priorities when looking for an articling position, however, through the determination of my articling principal to educate me and ensure that I am getting the most out of my articling experience, I can wholeheartedly say good mentorship is invaluable.

Thursday, 29 December 2016

Utilizing my advocacy skills in court

My first motion was scheduled months in advance and the day finally arrived. It was booked at the Newmarket Superior Court, a court that was unfamiliar to me. I am not a shy person, but the anticipation of speaking in open court made me nervous. I was consoled by my learned peers who assured me that I was lucky to be arguing a Wagg motion as my very first.

I was scheduled to speak before the Honourable Justice Di Luca...

A Wagg motion is brought under Rule 30.10 of the Rules of Civil Procedure. The purpose of the motion is to obtain relevant documents that are in the possession, control, or power of a party who is not part of the litigation. These motions typically arise in motor vehicle accident claims and are used to obtain the records of police departments and/or the Ministry of the Attorney General.

Since Wagg motions are procedural, they are rarely opposed. That made my task easier. So long as I was prepared, nothing could go wrong…

On December 21, I arrived at court with ample time to spare. I wanted to ensure that I could find out where I needed to go and fill out any necessary forms all without breaking a sweat. I was scheduled to speak before the Honourable Justice Di Luca – lucky for me I was first on the docket.

Justice Di Luca had several questions for me, but everything went smoothly. I was able to obtain the Order, which I subsequently had issued and entered. Mission accomplished.

This motion marked the beginning of an era for me. Not to sound dramatic, but what I find challenging as a student will soon become the new norm. I will no longer worry about the proper way to introduce myself, or how to address the judge or master; I will not hesitate to use proper legal jargon, and I will no longer be confused by the layout of the Newmarket Superior Court.

On to the next!

Tuesday, 6 December 2016

Let's Settle This!

It has been two months since my unexpected arrival at MB, and partaking in mediation has been by far the most intriguing learning experience for me. It is interesting to observe the social, economic and tactical angles of mediation…

the best settlement is one where both parties concede a little to get the deal done...


Preparation

As is the case when preparing for trial, it is of dire importance to be well prepared for your mediation. Drafting a quality brief after a thorough review of your file is an essential step of the mediation process. Your goal is to bring as much ammunition to the mediation. With good knowledge of the facts and the law, you will be able to present your case from a position of strength and obtain the best possible settlement for your client.

Candour

Often times this is the first real chance to evaluate your opponent’s file on a subjective basis and evaluate your chances of success at trial. Therefore, being open and honest allows for no one to be left in the dark. In addition, it is counter-productive when you are not open, and it is usually construed as a weakness in your case.

Patience

Getting a case to mediation is a process. Starting from a properly drafted mediation brief to the opening statements, to back and forth on unreasonable offers, it all takes time. It is important to remain focused on the objectives of mediation, to settle.

Compromise

Since our first day of law school, we have been drilled with the notion that there is no certainty at trial. For this reason, it is important to evaluate your risk and come to mediation with the intention, and willingness to compromise in relation to your level of risk assessed. In fact, the best settlement is one where both parties concede a little to get the deal done.

jannoon028 - compliments of freedigitalphotosIn Summary

Becoming good at mediation comes with practice, by observing others in mediation and by asking experienced lawyers questions. Finally, it is critical to be a great listener at a mediation. You can often achieve a better result for your client by listening instead of talking.

I cannot wait to develop my own style and to continue learning about the multiple angles of mediation.

Monday, 14 November 2016

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 the 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.

Tuesday, 25 October 2016

Reflecting: An Articling Must

During our articles so far, we have been so busy with new experiences, learning new concepts, research, and deadlines that it is hard to believe we are almost three months in. The time has simply flown by!

I schedule a few minutes into my busy schedule to reflect on my experiences and Milestones.

Articling is the period where you are allowed to learn, explore, ask questions and make mistakes (in drafts only!) It is all part of the learning process. Therefore, it is important to stop, take a breather, and reflect on how far we have already come as articling students.

I personally like to take this breather every two weeks. I schedule a few minutes into my busy schedule to reflect on my experiences over the past 14 days and make a list of my accomplishments and what I have learned.

This list of accomplishments varies week by week and consists of milestones as small as learning what a “proof of loss” document is and why it is a key document in insurance defence, to larger milestones such as being assigned carriage of my first small claims file and drafting my first mediation brief.

These lists are a great tool to measure how far I have come from the first weeks of articling until now. For me, these lists are a proud reminder of how much I have learned about litigation and the practice of law in general so far. They are also great indicators of how my confidence is slowly growing. With each reporting letter and research memo, I can see myself becoming more confident in my researching and writing abilities.

compliments of freedigitaldesigns
It is even interesting to compare a current list from the previous list. You wouldn’t believe how much learning is packed into a short period of time! For example, in the last 14 days, I have had the opportunity to speak directly to clients, to draft my first (and second) mediation brief, and how to prepare for my first settlement conference.

I also like to use this exercise to set new goals for myself. I do this by reflecting on assignments and situations that I have found particularly challenging in order to identify areas where I would like to improve. Articling is a learning process and I have learned that it is important to target my own personal weaknesses so that I can set goals for myself.

It is both nerve-wracking and exciting to see what the next seven months have in store for us. Spending some time to reflect on accomplishments, and articling milestones and measuring your success through weekly, bi-weekly or even monthly intervals is a great way to keep tabs on how far you’ve come and how far you have to go. You will be amazed to see how much you have already learned!