S5 EP2 | Trials and errors: perspectives from our top litigators
What makes a great litigator? When it comes to mastering the art of litigation, some lessons are best learned outside the classroom.
In this episode of Disputed, hosts Ted Brook and Erin Brown go back to school and delve into what it takes to become a successful litigator, drawing from the experience of 11 seasoned professionals across all six of Norton Rose Fulbright's Canadian offices.
They’ll discuss how preparedness, above all else, is a major key to success, gain insights into how far to push a witness, talk about dealing with clients, and reflect on hard lessons learned early on by some of our top litigators. From unexpected twists in trials, to the evolving dynamics between junior and senior litigators, this episode is all about the lessons that litigators learn that allow them to turn courtroom challenges into victories.
This episode is accredited 0.92 substantive hours in Ontario and 0.92 substantive hours in British Columbia.
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[00:00:02] Ted Brook Hello and welcome back. This is Disputed. I'm Ted Brook.
[00:00:06] Erin Brown And I'm Erin Brown.
[00:00:07] Ted Brook Today, we're doing something a little different.
[00:00:09] Erin Brown We are. Because instead of one or two guests, we interviewed 11 guests for you today. Why? Because this is our very special back to school episode.
[00:00:19] Ted Brook Yes, indeed. Erin and I just finished traversing the country virtually, at least, to speak with litigators from all six of Norton Rose Fulbright's Canadian offices. And this was in an attempt to learn what makes them so good at what they do.
[00:00:37] Erin Brown So Ted, what do you think makes a good litigator?
[00:00:39] Ted Brook Honestly, I don't know anymore. The more litigators I spoke with and the more that I thought about the question, it's just became harder to say. There are certainly a constellation of skills and qualities that come up again and again diligence, creativity, organization, confidence.
[00:01:00] Erin Brown Preparedness, civility, but also having a thick skin. I don't know how many times the, you know, the idea of having thick skin came up in our conversations and also being able to roll with the punches.
[00:01:10] Ted Brook Yes, exactly. Understanding people, being curious, not giving up in the face of adversity, the list goes on. And so I guess the main thing for me is that being a good litigator takes time. It's not something you will have perfected just coming right out of law school.
[00:01:29] Erin Brown Yeah. Time definitely helps. I mean, you can obviously be a fantastic litigator as a junior lawyer, but all the lawyers that we've talked to for today's episode spoke about the experiences that they had that changed or influenced the way that they now approach being an advocate. So you might have some of those amazing natural qualities coming out of law school, but it's still something that you need to spend a lot of time learning.
[00:01:52] Ted Brook Totally. And to make the answer to your question even more complicated. It's also become clear to me that there's no single way to be a good litigator. There's no template right there. There are dozens of different styles, philosophies, approaches, attitudes, and they all can work depending on the person. It's very interesting to hear from our guests and hear about their journeys.
[00:02:16] Erin Brown Let's start with a topic that came up in many of our interviews, preparation, and the importance of being prepared as a litigator. This topic reminds me of something that happened to one of my girlfriends in law school. She went to see her professor about an exam that hadn't gone so well, and she asked him how she could do better next time. And he said, well, the way I see it, you could improve in two ways preparation and execution. She said, isn't that everything? And it turns out that being prepared also carries through to the practice of law. So let's start there.
[00:02:50] Ted Brook Let's do it. I know that Élif Oral, David Yi and Steven Leitl, all had really great stories and lessons to share about why preparation matters so much.
[00:03:03] Élif Oral My name is Élif Oral. I'm a litigator in the Quebec City office of Norton Rose. I specialize in professional liability and insurance law.
[00:03:13] Ted Brook What is one of the biggest advocacy mistakes that you've ever made? And what did you learn from it?
[00:03:20] Élif Oral The biggest mistake that I made was in one of the first trials that I was doing on my own, as the senior chair. I was perhaps a four year or five year lawyer at this point. There wasn't necessarily a big amount at stake, but this was a case of a municipal liability. So precedence are very important. And I did not spend enough time preparing the head engineer who was going to testify at court. He was a bit of a difficult, perhaps man to follow in his testimony. He was sent in there where you could go and having to testify. And I didn't push him hard enough. I didn't push him as hard as he would be pushed in court. Right. And the reason for that is that I think that I did not want to inconvenience the client. And this is something that really comes up when you're a lawyer. You don't want to inconvenience to partner or the client. So you tend not to perhaps push things hard enough. Of course, you don't want to be a constant inconvenience to your clients, right. You want to, you want to make their life easier. But when you're preparing for court, there comes a time where you have to put all that aside and you have to really push the case, have to push your preparation, you have to push the witnesses, your experts. And in the end, this client, this this head engineer for the for the city I was defending really had a very hard day in court. He didn't feel prepared. And of course I took the blame for that as I should, as I should have taken the blame for that. And we did ultimately lose out on the matter because the courts felt that he wasn't very credible. He wasn't very really hands on with this issue. And the court really didn't assign much credibility to his testimony. See, that's that was the biggest mistake that I made. And from that on, I have not as much, I would say, restraint and inconvenience like a client or a partner when you're getting ready for court.
[00:05:11] Ted Brook Because you know what can happen if you don't push, if you say, no, I need to spend hours with you, and I'm going to be tough with your witnesses.
[00:05:20] Erin Brown You'll thank me in the end.
[00:05:22] Ted Brook Or you won't, right? Because if everything goes well, it will just seem like, yeah, oh, of course, they're a good witness. They were good on the stand. But it's when things go poorly that people notice.
[00:05:31] Élif Oral Right. And the level of scrutiny that, you know, the court will put forth, I mean, the level of examination that they will look at the facts in great detail. It's that's something that I think most clients or except the attorneys, of course, but most clients are not used to that. And you have to prepare for that, even if the amount at stake seems little, even if it seems like it's a slam dunk, it never is. I think it really hinged on one witness as it is in this case. So I've never, that's a mistake that I learned from dearly. I still think about that every time I prepare your witness, and it's still with me today.
[00:06:07] David Yi Hi, everybody. My name is David Yi. I'm a partner in our Toronto office in the IP litigation department.
[00:06:14] Ted Brook What's one tip that you would give to a new litigator, and why?
[00:06:18] David Yi My one tip would be to become comfortable with the fact that there's some level of unpredictability in litigation. I think the type of personality that gravitate towards law in general is probably the exact opposite of that. And so I think part of this is training ourselves to be okay with the fact that a lot of the time something is going to go, not according to plan. And I can only think of probably two hearings where my submissions went in exactly as scripted, with no interruptions and not a single thing going unexpected. But for every single other hearing I've had, something has gone wrong, and sometimes things have gone completely sideways.
[00:07:05] Ted Brook Can you give us an example, maybe?
[00:07:07] David Yi I remember when I was sort of a mid-level associate. We were before the Federal Court of Appeal, and our hearing was on the family day Monday because in federal court there's no Family Day weekend.
[00:07:20] Ted Brook So a family day holiday in Ontario, but also a number of other provinces.
[00:07:24] Erin Brown I've had that same, that same situation, David, where people like, no no no, your hearing can't be today. It's like, no, it is because it's not a federal government holiday.
[00:07:32] Ted Brook But it's not recognized by the federal courts. Okay. So so I see where this is going.
[00:07:37] David Yi And so Friday before our family day Monday hearing, we get a direction from the Court of Appeal, which itself is quite rare. But we get this direction, and it says, the government recently enacted amendments to the specific provision that you're going to talk to us about, and we'd like you prepared to address that fact and what impact it has on the case at the hearing. So we spent all weekend trying to figure out what we're going to say about this. Monday morning comes and the chair of the panel says, council, I know that we asked you over the weekend to speak to this particular issue. We're actually totally fine on that issue. But there are the four provisions in the Patent Act that neither party has addressed in their submissions, and we think that they're going to control the outcome of this hearing. So what we'd like to do is give you an hour to go into your respective breakout rooms and prepare to address these four.
[00:08:36] Erin Brown It's like a law school exam. Your one hour take home exam.
[00:08:40] David Yi It's so it's me, two senior lawyers, and then a research lawyer back at the office behind the scenes and a law clerk. First five minutes are us just saying, okay, well, basically everything that we prepared can go up the window, except not, because what happened was we had prepared so intensely that we knew all of the issues inside and out. And so as we started to look at these four new provisions, we figured out a way to weave the story about these provisions directly into our our already existing narrative. And we had prepared our submissions in a way that they could be flexible so we can rearrange and move things around on the fly. And as a result, it was almost like a seamless integration of this new stuff with what we had already planned to say. So, I mean, that was that was the most extreme case for me about things going completely sideways. But what I took away from that was both, you know, mentally you have to be ready and comfortable to deal with something like that if it comes up. But how do you do that? I think it's it's through preparation, you know, you prepare substantively so that, you know, all of the issues inside and out and you're comfortable with with moving around. But you also prepare to be flexible. So you structure your submissions in a way that you can rearrange move and you're nimble on the fly. So that would be my one tip.
[00:10:08] Steven Leitl Hello, my name is Steven Leitl. I'm a commercial litigator in Norton Rose Fulbright Canada's Calgary office. Begrudgingly now called a senior partner.
[00:10:19] Erin Brown Tell us about one of your first times in court.
[00:10:21] Steven Leitl So not to date myself, but this was in the late 80s in Toronto, where I started, and a partner had sent me to get to what he said was a guaranteed adjournment.
[00:10:31] Erin Brown You never want to hear the word guaranteed, that's a junior or really any stage of your career.
[00:10:36] Steven Leitl Never want to hear someone tell you you can't lose this. So as you leave the doors for court. I show up as a two months into practice lawyer, not with a lot of exposure to litigation before that. And another big firm showed up with about six people and not only oppose the adjournment, but asked for summary dismissal of the entire case, which this 95 year old judge granted. I had to go back and explain to this partner how the adjournment was not guaranteed. You know, in the end, we get it all overturned on appeal. So, I mean, you have to follow the instructions of the person who's sending you. But if you ever hear you don't need to know anything about this before you go and speak to something, at the very least, gently push back on that.
[00:11:19] Erin Brown I think that's really good advice. I think sometimes as a lawyer who understands a lot about the file, it's easy to look at this and say, oh, this is just a really small thing and not sort of think through, that that context is always really important to understand how this fits into the bigger picture, what stage of the litigation you're in because your earlier point, things that are unanticipated can happen. And if you don't really understand what the case is about, where you are in the procedure, it can be really hard to roll with the punches. And of course, when you have, you know, very little experience, it's also hard to roll with the punches then as well.
[00:11:52] Steven Leitl Yeah. And if you walk in wearing a brand new suit, you know, and looking like you're 12 years old and you don't know what the case is about, opposing counsel, this might try to run over you.
[00:12:01] Erin Brown So, Ted, always be prepared.
[00:12:03] Ted Brook Yes. And try not to look like you're 12 years old. That's important.
[00:12:07] Erin Brown So let's pivot to evidence now. Dealing with witnesses, making sure you're approaching evidence strategically. That's something that came up a few times during our discussions.
[00:12:17] Ted Brook Yeah. Dan Bennett and Sarah McCalla, both had some interesting and different insights about evidence and specifically how far to push a witness.
[00:12:25] Erin Brown And then Kaitlin Long in Calgary had a great story about turning an evidentiary challenge into an opportunity.
[00:12:31] Ted Brook Awesome. Let's do it.
[00:12:34] Dan Bennett I'm Dan Bennett. I'm a partner in the Vancouver office, and I practice at commercial litigation.
[00:12:40] Ted Brook Can you tell us a story about examinations you've dealt with? Maybe you could tell us about your best examination ever. And and what made it a success?
[00:12:50] Dan Bennett I'm going to use best in the sense of results. Just part of my story. The case was about whether or not this couple who had invested money could reasonably expect a fixed return, whether their return is going to depend on the market. And was after one of those stock crashes where, of course, they lost a bunch of their, their value, and they're suing their program. So we're doing the examination for discovery, and it's a sort of going long normally. And you kind of work your way into things. And at one point to ask the question that, well, you knew it was tied in stock market, so your your value would go up and down? And to my surprise they said yes, which of course completely undermined their case and had a senior lawyer that it used to work with and he or she was a fishing example, he says, you know, when you're fishing, you know, you get a couple bites, once you get the fish on, you have to set the hook. And so so I just made sure that I before the other lawyer can do anything with any adjournments, just go over that same question and answer in a slightly different way just to make sure that it's absolutely clear this is what they're saying. I did it a couple times. It was so clear that I, I basically said, let's have an adjournment. Talk to the lawyer. And I said, well, isn't your case gone? And they basically agree. And so she walked away from that examination with a dismissal. So the thing about it is, one, it's sometimes your best examinations unexpected. But, you know, don't look a gift horse in the mouth when you do have it, make sure you set that hook so that they can't backtrack later.
[00:14:18] Erin Brown Would your advice be the same on the stand? So fast forward in time. You're on the stand with that same witness. They give you that answer. Do you set the hook because it's pros and cons, right? You can also allow them to potentially walk it back and change their answer. If you are at the stage of a trial and they're on the stand and they answer that first question, do you shut the examination down or do you push again?
[00:14:41] Ted Brook Tough call. Yeah, yeah. Dan, what do you do?
[00:14:43] Dan Bennett Yeah, I, I think, I would probably still set the hook a bit more just because it's so fundamental. And I think you have to think about the judge. Right. They're looking at this and they're going to be going like is that what I just heard. And particularly in this case we dealt with the older couple. I think, you know, you'd want to really make sure that you set that book for the judges.
[00:15:04] Ted Brook That it's not a gotcha. Right. You want the judge to feel like, no, that is the witnesses evidence.
[00:15:13] Sarah McCalla Hello. My name is Sarah McCalla. She/her pronouns. I'm a partner in our Vancouver office and in our litigation group. One of my first times in court was actually a trial. It was a small claims trial, and I was running it myself. So, you know, no pressure. I had prepared all the cross-examination questions you can imagine. I prepared all the documents you can imagine. It was a manufacturer of liability case. So the other side said, our client's vehicle was faulty. We said they hadn't maintained their vehicle properly, and that was really what it was coming down to. I was fine, I arrived at court. I had my whole big as you do as a litigator. You bring in your boxes full of documents for your one hour small claims court trial. The client rep looked at me and kind of raised his eyebrows that that's a lot of documents. And I smiled knowingly and said, yes, this is have any documents you need. And then we got up there and the other side started giving evidence. And like I say, they were self represented. So I thought it was going to be the car owner that was going to give evidence. But no, it was her son. And so halfway through his evidence, I'm thinking to myself, oh shoot. Should I've subpoenaed her? Should I have gotten, like something else?
[00:16:28] Ted Brook You were like, I'm going to be cross-examining the owner of the vehicle, and now she's not even there.
[00:16:33] Sarah McCalla While trying to avoid hearsay and still trying to get admissions about maintenance of the vehicle. So I don't think it's possible to be overprepared. I think the fact that I was as prepared as I was, even though the client raised an eyebrow at me, really meant that I could pivot in the way I needed to when I was in court. And in the end, we ended up getting an excellent result. It was one of those cross-examinations that you dream of, and that I've frankly never had since. Where I took him to our mechanical report and I said, you see here, it says the car wasn't maintained. And he said, yes, I see that. And you'll agree with me, that your mom didn't maintain the car or the vehicle properly. And he said, yes, I agree with that, and I paused. Is that what he actually said?
[00:17:18] Erin Brown So did you just walk away at that point or switch lines of examination, or did you kind of push that point a little further?
[00:17:24] Sarah McCalla I mean, if I'd known this witness a bit more, maybe I would have pushed a bit more. But I had no idea what else this person might say or where he was coming from. So in that moment, I made eye contact with the judge. The judge kind of raised his eyebrows and I went, yep, you heard that too. And then I moved on to the next thing. But it was a fun first little trial for sure. Stressful, but fun.
[00:17:49] Kaitlin Long I'm Kaitlin Long. I'm a partner in our Calgary office in the litigation group.
[00:17:53] Erin Brown What is the most shocking thing that you have seen an opposing counsel or the other side in a litigation do, and how did you deal with that?
[00:18:02] Kaitlin Long I think the most shocking thing that I have seen was during a trial. It was an OHS prosecution trial.
[00:18:09] Erin Brown Sorry. What's OHS for our listeners?
[00:18:10] Kaitlin Long Sorry. So occupational health and safety prosecution. So Crown was opposing counsel. And of course, we're defending a company. And what happened was the Crown prosecutor, who is supposed to be very independent in that particular role, made his fact witnesses part of his trial team.
[00:18:30] Ted Brook For listeners, my eyebrows just like, jumped, like.
[00:18:32] Erin Brown Yeah, I think mine did too. So sufficiently shocking.
[00:18:38] Kaitlin Long Sufficiently shocking. And and the way that it played out just showed all the reasons why that is that. And that's not something you should do. And whether it's a Crown prosecution or you're in a civil trial, you just don't make your faculties as part of your trial team. And what ended up happening is, of course, they were subject to an exclusion order, which means your witnesses that are coming up don't get to sit in. They don't get to know what the evidence is. And every time that we would get a gap on cross-examination the next day, that gap would be filled by the next fact witness, even though they were excluded and even though they shouldn't know what had happened, somehow there was a new fact that hadn't come out in anything and any disclosure that filled that issue that we had.
[00:19:25] Ted Brook So very suspicious. Kind of pattern.
[00:19:30] Kaitlin Long Very suspicious and this isn't to be mean to the faculty. This is, but they weren't particularly sophisticated. So for them to have this continue to happen and happen and happen, it was over a three week trial. So every time we got something, it got failed. Every time we got something, it got failed. And, you know, we started seeing the faculty that says, hang out with the prosecutor after trial was done, and then we would see them in the offices in the morning. It just got really odd. And so it got to a point where, and these are the two things that I think show why this is really bad, is it got to the point where the prosecutor couldn't keep track of the stories because they weren't written down, and it started to contradict one another, and it just became this really weird story. And so they began to lose credibility, and he began to lose what was happening. But more importantly, we were able in our final argument and in our cross, once we caught on to this, to start saying, hey, did you meet this guy after trial? Hey, have you been having lunches with this guy? Are you guys really good friends outside of work and start building that up so that in our final argument it was, okay, let's look at all the gaps and all the things that we got on cross and let's see how they failed them. And from doing that, we completely undermined all of their witness's credibility. And so for two things that were really bad against us, there were some hearsay exclamations that would have destroyed our case. And they were thrown out because they had undermined their credibility by trying to fill gaps.
[00:21:05] Ted Brook So you ended up taking something which was a disadvantage, and you managed turned it into a bit of an advantage by undermining the credibility of their entire case. Did it ultimately work?
[00:21:16] Kaitlin Long It ultimately worked, even though it's really hard. The judge in his decision said, I don't believe a single thing, and it's hard to get a judge to say these people lied. They don't want to say that. But it just was so apparent.
[00:21:28] Erin Brown Is there a lesson to be learned here from an evidentiary standpoint of maybe don't be greedy? I don't push the evidence. You don't need to fill every single little gap. Like for them, it sounds like it would have been better if they just left that and gotten in there really key evidence?
[00:21:44] Kaitlin Long Yeah, I think that's a really good point. Like, you just have to take the evidence as it is. Especially trying to do stuff on the fly in the middle of trial. It's already stressful enough. So yeah, don't don't reach for the stars. It doesn't have to be perfect. Just take your case as it is.
[00:22:01] Erin Brown So, Ted, we've just heard some great stories about early wins and lessons learned from them. But there are a lot of ups and downs in being a litigator.
[00:22:09] Ted Brook Yes, sometimes it's a very difficult job. And Orestes Pasparakis, Kelly Moffet-Burima and Jenna Anne de Jong had some really interesting things to say about what they've learned from navigating difficult situations with opposing counsel.
[00:22:26] Orestes Pasparakis Hi, my name is Orestes Pasparakis. I am a litigator in the Toronto Litigation Group. I remember one examination, and I'll give you a couple and they sort of are part of the PTSD that one gets as a young lawyer. I did a couple of judgment debtor examinations and judgment debt examinations involve you trying to figure out if the debtor has money, and it gave your client in my case bank, would be able to get their money back. And I had at the time, and I don't know if they still do this. I had a book that told you all of the questions you were supposed to ask the fellow that you are examining. And and so I'm sitting there and I'm asking the questions. And a senior lawyer, who had a couple of files against at the time was opposite me and was clearly bored out of history, was looking at me like I was from Mars, from going through this booklet of judgment debtor questions in about 40 minutes or maybe even less into the examination, he says, what are you reading from? And then he reaches across the table and takes my book, turns it around and starts to read it and says stuff like, this is hilarious. If you own a boat, do you have a trailer? And he is laughing and the witnesses laughing. And of course he didn't have it, he didn't have a trailer. And I fell like an idiot. So that was pretty bad. And obviously it scarred me if I remember it now, 20 something years later. But I also remember another one, where I asked the fellow how much money he had, and he reached in his pocket and threw a wad of 20 left. And so that was that, it was pretty bad, too. And what kind of strikes me is that I didn't have the moxie to take the money and put it in my pocket and say, thank you.
[00:24:33] Ted Brook Yeah, that'll be going to my client.
[00:24:35] Orestes Pasparakis Yeah, well, it's a point of pride where I said, like, I'm not picking that up. So it can be challenging as a young litigator to sort of deal with a situation that you don't really know how to deal with. And we think you're doing what you're supposed to do and you come across as a complete idiot.
[00:24:54] Erin Brown So now you're that really senior lawyer. You come up against a junior who's reading from the book. Are you going to handle that situation the same way? Or do you think that sort of civility in the legal profession, or the way that we treat geniuses, sort of evolved?
[00:25:11] Orestes Pasparakis I think it's evolved a lot. I mean, look, it was it was pretty astonishing when it happened, but it would be kind of more astonishing now. So I actually think that senior lawyers tend to be more careful around junior lawyers not to be perceived to be bullying. In fact, I'm sort of toughest we this or senior counsel that should know better if they do something that's silly and we tend to cut junior lawyers, I think some slack. And I think that's that's the appropriate way to deal with the situation.
[00:25:48] Erin Brown Your example of reading from the book reminds me of when I was, I think I was probably an article student, if not still a summer student, and I went to talk to Grant Jamieson, fantastic former managing director of our Ottawa office. And I said, look, what do we do with precedents? Because as a student, you're taught, you know, you can't take anybody else's work and use it. And obviously that's quite different in a legal practice. Like what do I do with this precedent, which is not dissimilar from reading established questions from a book? And the advice that he gave me, which I still think about today, is don't check your brain at the door.
[00:26:19] Orestes Pasparakis Yeah, you need to be preparing a lot, and you need to use the mentors in your office to help guide you when issues arise, and not just those people that you think of as mentors, but really anybody in the office who has got some seniority and can guide you. You know why those those two incidents stand out for me is because it really highlights, when I go back how little I knew about what I was doing. I mean, I'd gone to law school and knew where the book was and I pulled it out, but that actually wasn't the practice of law. And it does take some time to figure it out. And I actually think it takes longer now, just because cases tend to be bigger and more complex and more slow.
[00:27:14] Kelly Moffet-Burima Hi, I'm Kelly Moffet-Burimar. I am a partner in the Calgary office of Norton Rose Fulbrightt in the litigation group, and I practice primarily in complex commercial litigation and construction litigation.
[00:27:25] Ted Brook So, Kelly, if you had one tip that you could give to a new litigator, what would it be?
[00:27:31] Kelly Moffet-Burima Yeah, it's a good question. And it's it's kind of a hard one to pick because I feel like I had lots of lots of stumbling in my junior years, but one that, that I think I came across quite often was don't be intimidated by the senior litigators that are opposing you on matters. I had a lot of experience when I was a junior in questioning and cross-examinations, where senior practitioners on the other side, we try and leverage their seniority to my, and more importantly to my client's detriment. And I think this occurs with all junior associates to some extent, but I suspect it's more prevalent with junior female associates dealing with an older generation of counsel. And so just to give you a few examples.
[00:28:17] Ted Brook Yeah, I was going to say give some examples, sort of like browbeating or like questioning like.
[00:28:22] Kelly Moffet-Burima Yeah, it took a lot of different forms. I've had senior counsel threatened to shut down questioning was based on my valid objections, suggesting that they were offside, and spoiler alert was determined by the court. They were not. I have had senior counsel object for outlandish reasons to valid lines of questionings in a patronizing manner. That is sort of this is how we do it here, sweetie approach. I've had senior counsel start phone calls telling me that I should really go back to my married name, because my hyphenated name was much more difficult to deal with.
[00:29:00] Erin Brown Wow. That's a bad one.
[00:29:02] Ted Brook No good.
[00:29:03] Erin Brown I'm guessing, obviously just intended to throw you off, right? Like, unfortunately, trying to take advantage of the situation for a strategic advantage rather than, you know, being a good lawyer who knows the law and strategizes. You're just using something unfortunate like that.
[00:29:21] Ted Brook How do you respond to something like that, or did you or has it maybe changed over time now that you're, a partner and you're more senior?
[00:29:28] Kelly Moffet-Burima I think it's changed over the years. And obviously as you become more senior in your career, it just happens less and less. To the hyphenated comment, I said, well, have you ever thought of changing your name? And then we just sort of moved on. Usually that type of behavior from counsel is indicative of just a tactic to design to make you feel smaller, weaker, dumber, less then. And typically that type of aggression is signifying that they're either not prepared or they have some weakness that they're trying to make up for through pure aggression. And in my experience, it's never worked particularly well, but I'm sure it's worked for lots of senior practitioners over the years, and that's probably why they insist on doing it.
[00:30:21] Erin Brown But I'm really glad that you brought this up, first of all, because I think it's good to represent different perspectives and speak to I think a lot of women in litigation have had these types of experiences. And I'm wondering I'm hopeful that in, you know, an era where there's more of a focus on diversity and inclusion, clients may start to pick who they want to represent them based on use of tactics like this and make concerted decisions to say, we do not want senior lawyers to be using these tactics on our behalf, because we don't think that this is in keeping with our goals to be a diverse and inclusive employer.
[00:30:58] Ted Brook Especially when they don't work to to your point, Kelly.
[00:31:01] Erin Brown But it's tough to know that in your first couple of years, right? It's tough to know. Are they right? To your point, Kelly, you know now that your objections were bang on, but at the time, it probably may have gotten into your head. And I could totally see myself, especially as a really junior lawyer, doing something for the first time, thinking, okay, maybe I am off side because here's this trusted senior lawyer in the community that's telling me I'm doing something that's unreasonable.
[00:31:27] Kelly Moffet-Burima Yeah, I think that's absolutely correct. And and when I was a junior in these situations and, you know, it occurs sometimes to this day. It really does make you question yourself and think, well, am I totally off side? Have I forgotten the law on this point, or are they just really trying to get in my head? And so the tip to go back to your question, Ted, that I think is useful is to take a minute and ground yourself after this has happened and then recognize in that moment that, yeah, these guys have a lot of years of practice on you, but it's very unlikely in this situation that they did the same amount of prep work that you did for this first application, first questioning, first cross examination. They probably didn't go back and look at, for instance, the rules on objection, but you did because you're prepared for this. And so know that you're just as capable and intelligent as they are, even if they've been at it longer. And if you feel like caving, just fake it until you make it. And remember that the consequences for sticking to your guns are usually not very dire. So better to just respond with strength to strength.
[00:32:40] Ted Brook I like that. Know that you're prepared, yeah, but also like stick to your guns. At the end of the day.
[00:32:45] Erin Brown My fantastic article and colleague who's now a senior associate in our, in our group, Brittany Hinds. Her and I, when we were tickling together, we'd always bring up the concept of a duck. So ducks, when they're scurrying really quickly under the water, you can't see that. All you see is they're super calm on the surface and they're moving very quickly. So you just say, be a duck. You might be freaking out under the surface, but you just look calm, cool, and collected on the surface.
[00:33:10] Kelly Moffet-Burima That's a really good way to put it too. I did have one other example that's just funny. We were in settlement negotiations and I had senior counsel question how I knew certain words. I had said something like, and it's just this was ten years ago, and I remember it clear as day. I said something like, well, why don't we do it this way? And that would obviate the need for this examination. And he said, how did you know to use that word? Did I say that word in this meeting? Like I would never have come across the word obviate before in my life. And maybe he thought he made up the word obviate, but it was the strangest thing. And, you know, it was obviously again designed to throw me off my game. But I think I said to him, yes, in the dictionary, I I've seen it before.
[00:34:02] Erin Brown Kelly, you've got the great comebacks on these things that get thrown at you.
[00:34:05] Kelly Moffet-Burima Yeah. Just think of your most sardonic, sarcastic response and just throw it at them because again, strength response to strength. So don't back down.
[00:34:20] Jenna Anne de Jong My name is Jenna Anne de Jong, and I'm a partner in the litigation group in the Ottawa office of Norton Rose Fulbright. Something I've learned over the years is that sometimes the other side isn't doing the things they're doing for the reasons that you think they may be doing it. And oftentimes, parties get so angry with each other, and they dislike each other so much that they lose sight of the big picture, and they get into procedural fights that don't actually advance their case because they think that party is hiding something, or they think the other party's engaging in some sort of deliberately nefarious tactic. And sometimes, perhaps they are. Perhaps they are hiding something. Perhaps they are doing something nefarious. But oftentimes the other party is engaging in obstructive behavior because they also don't trust your client. And so the the loathing is mutual. And unfortunately, what happens sometimes is that rather than advance either party's case in a way that's meaningful, what happens is the cost and time associated with going down these procedural black holes really benefits neither party, and just end up taking up court time and resources that could be put more effectively towards dealing with the substantive issues. So what I've learned over the years is it's worthwhile to take a step back and take a deep breath and ask yourself as if it's actually worth engaging on that point, or if it's something that you should just make a note of it and preserve it for posterity if it comes up again later.
[00:36:00] Ted Brook And so what's your advice for a litigator or client who is stuck in one of those situations? Right. It's a heated battle between two litigants who have been going at it for years. What's your advice in that scenario? Like what can you do to actually get out of that logjam?
[00:36:17] Jenna Anne de Jong So I'd like to talk the client through what they hope to achieve. What if they're successful on their procedural motion, or they're successful in responding to a procedural motion? What do they see as the best case scenario for the outcome of that? And sometimes that helps them to see that even if they win that motion, that it doesn't actually get them where they want in terms of advancing their case. On other times, they will say, look, we understand this. We think it's an important point nonetheless, and they still want to pursue it. But for me, it always comes back to what do you hope to achieve on this motion, a procedural step, and if it's not getting the client to where they want to go ultimately in the litigation, then it's really not worth them investing their time in doing that.
[00:37:10] Ted Brook So opposing counsel can be difficult. But increasingly, self represented parties are struggling to navigate the court system in Canada. And civil litigators need to learn how to interact with them and manage some very difficult situations with non-lawyers.
[00:37:25] Erin Brown And Jamie Macdonald had some helpful tips in that regard.
[00:37:32] Jamie Macdonald Oh hi, I'm Jamie MacDonald. I'm a partner in our Ottawa office. I'm a commercial litigator and the head of our national insurance practice in Canada.
[00:37:40] Erin Brown I actually did some of my first court appearances for Jamie. He may not remember, but I do. And Jamie has the best stories. So I want to ask Jamie this question. What is the most shocking thing that you've seen from an opposing counsel or opposing side in a litigation?
[00:37:58] Jamie Macdonald I guess I'll say, you know, for whatever reason, in my practice, I deal with a number of self represented parties. And I'll preface this by saying I'm not trying to make fun of self reps. I think most of the time they're doing the best they can in a very kind of opaque system. That being said, you certainly see interesting things sometimes dealing with self represented plaintiffs. I've had plaintiffs who appealing a master's decision and his appeal material included a rather spirited, hand-drawn illustration of the courtroom with labels pointing out, this is the master, this is opposing counsel, this is me, this was the factum I was holding in my hand. I didn't do that appeal. I sent an associate to do that appeal for me. But I was told this presentation involved a PDF on a screen with operatic music accompanying it, just to really kind of get the point across. I've had more recently a self represented party who just sent me constantly just the meanest emails, the rudest emails I ever received, which you, I can't repeat most of the content of the emails, but really just getting across how unintelligent I was, how unethical I was, how can I wake up and look at myself in the morning, aside from growing some thick skin, which I think comes with time with every litigator, I don't get quite upset about anything these days. You have to remembers, just to be kind of unfailingly polite and patient with self represented parties. Every time I receive a horrendous email trying to just rip me apart. My response is, thank you for your email. Do you have any concerns? Here is the address. The Law Society of Ontario. It's just been extremely patient with them because you've got to work with them. You're an officer of the court, they're doing their best and you're not their lawyer. You can't hold their hand, but you can say, oh, by the way, there's this thing called the County of Carleton Law Association, which, of course, you don't know about, but they've got some forms on their website that you might need to look at. It was doing what you can as an officer of court to help them through. But, you know, it certainly keeps the practice interesting.
[00:40:12] Ted Brook How do you find that line if you're a litigator, whether you're in-house or you're at a firm and you're dealing with a difficult self wrap someone who you can tell is genuinely focused on advancing their case and they need help. Where's that line between giving them direction as to resources or how the procedure works, and then giving them legal advice, which you can't do.
[00:40:34] Jamie Macdonald Yeah. You know, it's a line between legal information and legal advice. And you're not providing some with legal advice if you say, by the way, there is this thing called the rules of civil procedure. There is this one rule which sets out what needs to be included in an affidavit document. And of course, you prepare every email with saying, but of course, I'm not your lawyer. This is not legal advice. This is a very complicated matter. You need to find a lawyer. And the court likes to see it when you're being helpful and polite to the other side, no matter whether it's somewhere inside a party or an actual lawyer. But you just have to give that information. We can't be the sole, you know, holders of how to operate the court system anymore.
[00:41:15] Erin Brown Jamie, does your approach vary at all client to client? Like, are there some clients that are wanting you to take a more hardline approach with self reps, or does it vary from the case to case, or is is the kind of your approach the same pretty consistently across files?
[00:41:30] Jamie Macdonald My approach is fairly consistent across file, just because that's who I am as a litigator. I've been doing this for somehow like 15 years now. I have this style which is not going to vary significantly from client to client. Obviously, depending on the nature of the file on the client, my positions can wax and wane in terms of the type of postures I'll take. I generally take a fairly cooperative and like I say, friendly approach and approachable approach. I can't think of any situation where I thought, wow, this file would have been better if I was a real hardass with that self-purpose at the party?
[00:42:02] Ted Brook Yeah, absolutely.
[00:42:04] Erin Brown Yeah, and I think a lot of these themes run through, whether it's a self rep on the other side or not. I mean, I'm very much of the view that you need to kind of bring your own personality into your files. And I know that I'm not the person that's going to be the sort of hardass. It's just not who I am. I'm, you know, approach things very friendly, approachable, collaborative and kill them with kindness approach. And I think everybody's going to have a different style. But I think part of it is finding your style as a litigator. Right?
[00:42:30] Jamie Macdonald Yeah, certainly. And I don't try to kill anyone with kindness. I think more for them with blandness. After doing this for so many years, I, I just don't get riled up anymore. It doesn't mean I'm not, you know, zealous pursuing my client's interests. But, you know, things, I think when I was a for a second year litigant, if I heard. [0.1s] I feel sick to my stomach for a week about a file. It just doesn't happen.
[00:42:50] Ted Brook I remember that two things felt bigger when it was your first motion, or your first really heated argument over the phone was opposing counsel. It felt like, wow, I can't get over it. I'm thinking about it the next day. I going to talk to someone about it. Figure out what I could have said differently. But then a few years go by and you've had that conversation multiple times. You've been on different sides of it. You've seen other lawyers within the firm handle similar situations, and it all just sort of becomes less and less able to get you riled up and allows you to focus on the case that you're advancing.
[00:43:26] Jamie Macdonald It's always nice when you're in those discussions with at the council and you're like, wait a second, I actually do know what I'm talking about.
[00:43:34] Ted Brook Great advice from Jamie. Another big thing, though, that we haven't touched on yet is clients. It's so important to what we do as litigators. It's not just your case. It's your client's case. And one of the things that we all have to learn is litigators is how to represent clients effectively and forge those really strong relationships in a difficult situation.
[00:43:54] Erin Brown And Frédéric Plamondon and Dan Bennett both had some great insights on what they've learned about clients over the years.
[00:44:01] Frédéric Plamondon Hi everyone. Frédéric Plamondon, partner at Norton Rose in Montréal, practice is focusing on white collar crime and investigations. But at the end of the day, I can do also a broad commercial litigation. I think the most important thing for me is know your client. As we all know, litigation is not something that we would budget for before having to deal with a litigation or an investigation. So for me, take like I would say, 10 to 15 minutes to just explore your client's website, without billing for it. And I think the better you know, the better you will position yourself for this first meeting or when advising the client.
[00:44:41] Ted Brook So throughout, like a difficult case, what should a litigator be doing kind of, in your view, to to keep that client relationship strong and to make sure that they're not being surprised along the way?
[00:44:55] Frédéric Plamondon Always listen. And by listening I'm thinking about active listening. We are all well prepared and eager to respond. Sometimes we are more like trying to respond rather than listening. You will learn a lot of things, I think, by active listening. So, yeah, I think it would be my best advice.
[00:45:16] Erin Brown I certainly have felt myself fall into that trap before, whereas I've seen like really senior seasoned lawyers who say like almost nothing in the client call. And then at the very end, they've just listened and absorbed and analyzed something so clearly during the conversation that at the end, they just drop that sort of nugget that brings the whole call and the strategy and the approach together.
[00:45:40] Ted Brook And it shows the client that we understood what the problem was. I see that also in witness preparation or when you're speaking with potential witnesses, you can't just hear what they say and then, okay, yeah, I know what the evidence is, but you got to go very slow, listen carefully to the nuances and then ask questions that let them talk, because then you will truly understand their testimony.
[00:46:03] Frédéric Plamondon Yeah, yeah. Totally agree. And something that you can always do is as at the end of, let's say, an examination or discussion, you can ask the client, what do you think? Rather than you speaking first, and then you can read the room and I would say mitigate or navigate through the reactions.
[00:46:21] Erin Brown So you do a lot of work in the white collar crime regulatory investigation space. Is there anything sort of specific to that practice type that you have in terms of trip tricks or tips for litigation or communicating with clients?
[00:46:34] Frédéric Plamondon I think you must be kind. You must be sympathetic to the person with whom you are speaking with. It's not always about legal issues when we deal with ethics or corporate wrongdoings, we deal with people. So the advice is just learn by doing and to be open to observations, I would say.
[00:47:02] Dan Bennett I think the best advice I ever got in terms of dealing with clients is managing their expectations from the very beginning. Because if you don't do that, they bring their preconceived notions about what litigation is and isn't. Even an examination for discovery in terms of managing expectations, the clients need to know that you're not going to hit a homerun every time, right? So that they don't come out disappointed. Right. So manage your expectations very early on. The second thing, and I learned this through not only litigation but also later on being and for management is you have to be really forthright. If things go badly don't try and sugarcoat it. Then they won't understand the nuances there. They're usually too invested in litigation. If you sugarcoat it, they're going to listen to the sugar and and forget the message. So you've got to be really forthright and honest about it. And look, it's not always easy for sure. But if you don't do that I think it becomes harder, actually.
[00:48:02] Ted Brook And as you're developing a relationship with a client, sometimes their cases take years. They will appreciate the times when you've been honest about the bad news, and they'll listen to the good news.
[00:48:12] Dan Bennett Yeah, and as you say, it's a long relationship. I mean, ideally, it's better to give bad news at the end of that relationship. You built up that trust. It's a little harder to get bad news early on, but, you know, you just got to step up and do it. Hey, that's what they're paying you for. I mean, they're paying for your honest opinion and advice. And so you have to do their best you can.
[00:48:35] Erin Brown So, Ted, we interviewed 11 fantastic litigators from across Canada. What are some of the takeaways for you?
[00:48:42] Ted Brook The main takeaway for me is that it does take time, or at least time helps as you are on your journey to becoming an amazing litigator. Getting experiences and getting difficult, challenging experiences can make you stronger as an advocate, but at the same time, just being more senior than another litigator doesn't necessarily give you an advantage. It may give you a little bit of confidence, but being prepared tends to be one of the most common things that our guests brought up, and not something you can do as a first year litigator. It can be your first time at court if you're more prepared than the other side, if you know the law better, if you've taken time with witnesses, you can win the case. So it's kind of interesting. These ideas are almost in tension with each other, but at the same time they they work together. So I'm processing that as you can tell.
[00:49:35] Erin Brown Yeah. And I think what's interesting about kind of the, the being a junior lawyer up against the senior lawyer, we had a lot of discussions, I think, around civility and how senior lawyers used to kind of throw around maybe their weight and their experience to the detriment of junior lawyers who would not have the confidence or think that they didn't know as much. And I think your point about sort of preparation making up for some of that is a really good one. But one of the things that I've been reflecting on about our conversations is I really expected that we would get some fantastic tips and some fantastic stories about what people learn from, and very concrete things about being a litigator, which we got. But what I didn't necessarily expect was that we were going to get to some discussions about some deeper underlying threads in litigation, things like diversity and inclusion, civility in the legal practice. I think the fact that these themes came up in our discussion is really a reflection of the sophistication of the lawyers that we spoke to, but I think of clients as well. And, and clients obviously want lawyers that have these, these advocacy skills and who will zealously defend their interests in court. But while walking that line between not being demeaning, treating people with respect, operating along principles of civility, principles of diversity and inclusion, and trying not to sacrifice those things while still pursuing their interests in a really respectful way, which I think kind of goes around. One of the other themes that we talked about, being a really good, well-prepared, strategic litigator doesn't require some scare tactics or sort of demeaning tactics that litigators may have been more commonplace in in the past. Based on some of the stories that we heard from some of our litigators.
[00:51:23] Ted Brook Well, I agree with you completely. I really enjoy doing this episode. So to all the listeners at home, let us know what you thought of this episode and let us know if you've had any experiences as a litigator that were pivotal to your practice and your style. Any tips or tricks that you would want to share with us, feel free to get in contact with us over social media or directly, you know, our emails are on the website, so, let us know what you thought. Thanks so much.
