Monday, 23 November 2015

Forget the molehills...

by pat138241 at free digital imagesDon’t make a mountain out of a molehill. 

This is one of those easier said than done type of things. What exactly does this mean? To me it means attributing the proper amount of work, time and energy to the appropriate task and to avoid getting trapped in your own mind when it comes to new tasks, or ones that on the surface, appear to be frightening, such as attending your first motion.

Don’t psyche yourself out.

Many people will tell you that it’s ok to be over prepared. While I generally agree with this, there are certain limits you can learn through experience. For instance, how many times should I rehearse my opening address to the master for a motion on consent? In fact, I had this very issue... I spent the night before a motion rehearsing over and over exactly what I was going to say in hopes that I would avoid making any mistakes. The more I rehearsed the more daunting the task became and I built the motion up to be a massive event that consumed my every thought and emotion until I was able to speak in front of the master.

The funny part about this is after all that practice, stress and being about as nervous as an articling student on their first motion could be possibly be, before I was able to start my spiel, the master said; “This is on consent right? Can I see the order?” Just like that, the motion, the very same one that I had spent so much time preparing for, was over before I could even say my name.

Know where to draw the line.

Realize when you are sufficiently prepared to avoid obsessing over something that doesn’t warrant that amount of energy.

Being adequately prepared for anything is definitely very important. It may seem obvious to say, but being under prepared is not the idea I’m trying to convey. What’s important is finding that sweet spot between knowing when you’re sufficiently prepared and not becoming too immersed in the task so as to let it seem like an obstacle in your mind that is preventing you from being able to relax.

Through experience, I have gotten better at properly attributing the proportionate amount of work and preparation required to the nature of the tasks I am given. I have also realized it is usually when there is the element of the unknown at play, where I begin to over prepare. It is important to not let the fact that it is your first time doing a particular task overshadow the idea that the potential task may be very simple.

The basic take-away from this is that through experience, we should learn how to reserve our efforts for the tasks that are actually “mountains” and get better at distinguishing them from “molehills”. Plus be aware our minds are capable of playing tricks on us and making tasks appear to be more difficult or daunting than they actually are.

Monday, 2 November 2015

Don’t judge a book by its cover: Affidavit of Documents (AoD)

As MB students, we are exposed to a wide range of assignments during our summer and articling terms. There is no doubt that some assignments are more popular than others simply because the tasks involved appear to be more “lawyer-like” vs. tedious. However, even tasks which appear to be boring provide a great insight into each case and, believe it or not, have their own highpoints. A great example is preparing an Affidavit of Documents (AoD).

Parties must disclose any relevant documents in their possession in order to avoid “trial by ambush”...

Document discovery is a significant process in pre-trial litigation. Parties must disclose any relevant documents in their possession in order to avoid “trial by ambush” and to encourage early settlement. Preparing an AoD, at times, requires sorting through large volumes of documents; and yes, this inevitably includes many paper cuts!

What's Relevant?
However, in preparing an AoD, you encounter an array of documents, including contracts, reports, invoices, photos, and correspondence between parties. While reading through these documents, you determine where the parties stand in the litigation. Also, it provides good practice for learning what type of documents are relevant in different cases.

Privilege
Furthermore, a decision has to be made whether privilege is to be claimed over any documents. This decision generates much discussion amongst the students. The most common forms of privilege encountered are settlement privilege, solicitor-client privilege, and – the number one discussion item – litigation privilege.

picture courtesy of scottchan and free digital imagesUnfavourable Information
In one assignment, we had to determine whether litigation privilege could be claimed over an accident report prepared by an employer on the date of loss for injuries suffered by an employee at work. While the report described the clients’ injuries, it also contained some unfavourable information. However, unfavourable or not, we could not claim litigation privilege based on this. The decision is based on when the document was produced (to determine if it was made before reasonable contemplation of litigation) and ascertaining its dominant purpose.

As you can see, while preparing AoDs may at first glance seem like a boring task, it can provide a great opportunity to assess the subject file and enhance your analysis of what is deemed to be “relevant” or “privileged”. I guess it’s true when they say: “never judge a book by its cover”.