Candid Conversations with Supreme Court of Canada Judges

On February 6, I had the honour to attend the program “Candid Conversations on the Challenges and Seizing Opportunities in the Practice of Law Today”, held by the Ontario Bar Association. It was an honour to hear from Justice Moldaver, Justice Cote, and Justice Wagner of the Supreme Court of Canada.

Program participants were divided into three groups, and the judges rotated through each group. A multitude of topics were discussed, including career insights and the role of the judiciary. Below are a few interesting comments I heard:

  1. Think outside the box when arguing for a change in the law. Judgments have a shelf life.
  2. Be resilient.
  3. Preparation is key. You can never be too prepared when arguing a case.
  4. To attract business, it is important to be seen in the business community.
  5. Don’t feel stuck in a practice area or firm. There is flexibility. The path of life is filled with the improbable. When one door closes another one opens. It just might be an unexpected door.
  6. There is no certainty in the courtroom.
  7. There are no small cases. Only small lawyers. (reference to the quote – no small parts, only small actors). Every case is important.
  8. You don’t have to have your name in lights to help people get through the morass of laws.
  9. To keep the public’s faith in the judicial system, we have to explain to the public what the courts do, who the judges are, where they come from, and why we do things a certain way. The court needs to communicate with the public. Courts need to be transparent.
  10. The essential ingredient in the judicial system is faith. Without faith in the judicial system, there will be anarchy.
  11. People take news from social media now. We have to update the judicial system’s communication with the public to reflect that.
  12. Lawyers need to be more creative with their fee structures. We are starting see self-represented litigants trickle up to the appellate levels at higher rates.

 

 

(The views expressed in this blog are my personal views and do not reflect the views of any organization)

The Pursuit of Mastery

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With a new year comes new resolutions. 2017 is no different. But what really motivates us? Is it money, status, fame, or something deeper?
 In the book Drive: The Surprising Truth About What Motivates Us, Daniel Pink writes that deeper motivation comes from the pursuit of mastery, autonomy, and purpose. “The most successful people are not directly pursuing conventional notions of success. They’re working hard and persisting through difficulties because of their internal desires to control their lives and learn about the world and accomplish something that endures.”
Unfortunately, the path to mastery (becoming better at something that you care about) is not lined with daisies and rainbows. As explained by Daniel Pink “Mastery hurts”. It is the product of persistent practice over many years.
But mastery attracts precisely because it eludes. “Greatness and nearsightedness are incompatible. Meaningful achievement depends on lifting one’s sights and pushing toward the horizon.”

Lessons from the Advocates’ Society Fall Forum

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This weekend I had the pleasure of attending the Advocates’ Society Fall Forum in Collingwood, Ontario. Below are a few of my favourite quotes and lessons from the conference:

  1. “Comparison is the thief of joy.” This was my favourite piece of wisdom from the weekend. It’s so true and all too easy to fall victim to. We are all guilty players in the game of upward comparisons, at one point or another.
  2. Relationships are the key to building a practice. Your relationships with colleagues, your relationships with friends, your relationships with other junior lawyers in other firms are all sources of potential clients.
  3. Excellence requires that you spend time outside of your caseload learning the law.
  4. There’s no shortcut to mastery. You have to put in the time and work to learn the fundamentals.
  5. Be a joiner. All great lawyers are involved in ventures beyond their job. They are a part of the broader community. For example, join the OBA, the Advocates’ Society, local lawyers association, the PTA,  a charity, etc.
  6. Learn from experience by reflecting on it. Do post-mortems after discoveries and court appearances. Ask yourself what went well and what went poorly and why that is so.
  7. Train your client about what time you will answer emails and calls.
  8. Protect your vacation time.
  9. Offer judges electronic materials, including expert reports, closing arguments, and charts that provide a list of the witnesses (e.g. a cast of characters).
  10. In oral argument, address first what you want and then explain why you want it. It is not simply a time to regurgitate your factum. It’s an opportunity to address questions that the judge may have about the facts or the law.
  11. Be genuine; be kind; be curious.

The Sleep Revolution

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In the Sleep Revolution Arianna Huffington encourages people to sleep their way to the top. Literally sleep their way to the top.

In her new book, she explains that sleep deprivation has taken a toll on our mental abilities and has reduced our capacity to perform both at work and socially. She cites a study that revealed that the performance of someone who gets 6 hours of sleep per night for two weeks straight is equal to the performance of someone that has gone twenty-four hours without sleep.

So then why are we all so tired and sleep deprived?

Huffington points to the Industrial Revolution as the origin of pervasive sleep deprivation. “Artificial light allowed the night to be colonized, [and] mechanization allowed for it to be monetized, and capitalism had no use for sleep.” As was the case with factory workers, sleep became devalued and scorned. After all another hour sleeping was another hour not working. And another hour not working was another hour not making money. And another hour not making money is an hour wasted.

In order to indoctrinate people with this capitalistic view towards sleep, going without sleep was framed as a sign of masculinity and strength. And to this day, this mentality towards sleep remains. In her new book, she encourages as to shuffle off this mentality, take pause, and perchance to dream.

 

 

Sheryl Sandberg’s Perfect Commencement Speech

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Sheryl Sandberg’s commencement speech to the graduating class of Berkeley is powerful. In her speech, she describes the lessons learnt from the death of her husband, stating that: “It is the hard days—the times that challenge you to your very core—that will determine who you are. You will be defined not just by what you achieve, but by how you survive.”

Life is filled with peaks and valleys: a moment of failure here, a period of success there, followed by a time of stagnation. But, it is in those moments of failure that professional longevity can be found. Studies have shown that the greatest predictor of success is not grades, not money, not looks, but resilience. So it is in Sandberg’s call to building resilience within ourselves that makes her commencement speech so perfect.

Everyone who has made it through Cal has already experienced some disappointment. You wanted an A but you got a B…

She was the love of your life… but then she swiped left.

Game of Thrones the show has diverged way too much from the books—and you bothered to read all 4,352 pages.

You will almost certainly face more and deeper adversity. There’s loss of opportunity: the job that doesn’t work out, the illness or accident that changes everything in an instant. There’s loss of dignity: the sharp sting of prejudice when it happens. There’s loss of love: the broken relationships that can’t be fixed. And sometimes there’s loss of life itself…

And when the challenges come, I hope you remember that anchored deep within you is the ability to learn and grow. You are not born with a fixed amount of resilience. Like a muscle, you can build it up, draw on it when you need it. In that process you will figure out who you really are—and you just might become the very best version of yourself.

 

Less is More: Oral Argument

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Last week I had the good fortune of listening to former Supreme Court of Canada judge the Honourable Justice Ian Binnie. He shared many words of advice. First of them being was to ignore all advice.

Despite his caution, one comment stayed with me. He said that all good oral arguments can be relayed in 8 minutes. If you need a full hour to explain your position, then you don’t really know what you’re talking about.

I agree. In a time where most people view more words as better work. It is refreshing to hear that even judges want you to edit, edit, edit!

The 8 minute rule makes sense. It’s been said that all good arguments can be explained to a 6 year old. And how many 6 year olds do you know that can listen for more than 8 minutes?

Speaking to Your Audience

Speaking persuasively is an asset. At the heart of all of it: the audience. Their desires, their needs, their interests.

In “Powerful Speaking Skills for Lawyers“,  Bonnie Gross urges us to drop our pre-written prose. Instead, she encourages us to speak conversationally, using short, punchy sentences. Keep the message short and profound. No one cares about the inane details

She adds that we should make the first topic sentence a huge draw. And we should end our speech by addressing two points: “what you want the audience to do” and “what you want the audience to feel”. Interestingly, Bonnie Gross encourages us to stop apologizing, calling it a bad habit, daring us to “bury those feelings”.

In applying her rules, she provides the example of John F. Kennedy’s moon speech. She rightly claims that no one would ever remember:

Our mission is to become the international leader in the space industry through maximum, team centered innovation and strategically targeted aerospace initiatives.

But, everyone remembers:

We will put a man on the moon and return him safely by the of the decade.

So go ahead, be bold and “kill your darlings.” After all, no one cares about the details.

 

Be So Good They Can’t Ignore You

Nobody ever takes note of [my advice], because it’s not the answer they want to hear. What they want to hear is “Here’s how you get an agent, here’s how you write a script,”…but I always say, “Be so good they can’t ignore you.” – Steve Martin

In the Marble and the Sculptor, Keith Lee writes that people should follow their work. Not their passion. “Become dedicated to what you do. Delve into deliberate practice and work. Become a craftsman. Devote yourself to your practice or profession.” He states that three decades of research show that the traits that make us happy with our work have little to do with our passion. “Find what you can really pour your time into as a lawyer and do that.”

To devote hours to something, you have to convince yourself that it’s worth it. To convince yourself that it’s worth it, focus on the goal of mastery. Often times our passion for our work follows the skill.

“We are what we repeatedly do. Excellence, then is not an act, but a habit.” – Aristotle, Nicomachean Ethics, Book 2

An Evening Reception with Justice Myers: Summary Judgment Motions & More

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Last week I had the honour of chairing “An Evening Reception with Justice Myers” at the Ontario Bar Association. Justice Myers spoke about summary judgment motions and drafting proper motion materials.

SUMMARY JUDGMENT MOTIONS

Summary judgment motions are a procedure that can dispose of an action without the use of a trial.

Justice Myers emphasized how Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 changed the court’s approach towards summary judgment motions, citing paragraphs 44 and 59 in facilitating this change. The test for granting summary judgment motions went from: “is there a genuine issue for trial” to “is there a genuine issue requiring a trial”. This means that trials are no longer the default procedure. Consequently, counsel can ask themselves in each case: “can I use a summary judgement motion instead of a trial?”

I venture that many counsel do not use summary judgment motions in every case because of the energy and foresight required to put together a summary judgment motion. Currently, the civil court system rewards parties that delay preparation of their case to the later stages of the litigation life cycle.

In a summary judgment motion, counsel must address (1) why it is fair and just for a dispute to be resolved by way of summary judgment AND (2) why the case turns on a discrete issue. On a summary judgment motion, counsel must provide all the evidence that they would have used at trial. It is a return to the old days when trials took a day or two.

WRITING MOTION MATERIALS

In preparing motion materials, lawyers should avoid words like: surely, certainly, and obviously. Just get rid of them and use plain English. You are allowed to say “I attach” as opposed to “Attached hereto to this may affidavit is….”.

In the Notice of Motion, keep it brief. Carefully draft the relief sought. Force the judge to read your affidavit.

In an affidavit, lawyers should provide the facts that establish the relief sought. Too often lawyers indiscriminately throw in everything. Instead, highlight the important facts. And do not overstate your case. Judges hate being deceived.

Also, lawyers can dispense with the saying at the end of an affidavit: “This motion is made for no other improper purpose”. This saying came about in the time of writs, and it no longer serves any use today.

 

For factums, structure it accordingly:

  1. State what you want
  2. Address the key facts. Pinpoint the source of the fact.
  3. Address the law.
  4. Conclusion.

Again, I would like to thank Justice Myers for his time.

Revolving Tables

Last week I attended the Israel Cancer Research Fund fundraiser Revolving Tables. One mentor was assigned to each table, and attendees switched tables at each course. I had the pleasure of sitting with Heather Conway (Executive Vice-President of the CBC), Susan Horvath (President and CEO of the ROM Governors), and Marie Henein (criminal lawyer).

Some insightful pieces of advice were:

  1. Focus on your strengths. Often times in school we are encouraged to focus on the subjects that we are weak in to achieve strong grades in everything. When we switch from school to work, we should focus on that which comes easy to us. We should invest our time in developing our natural talents, rather than fight to do what we are weak at.
  2. This leads me to my second point: “Talent + effort” will take you far. Putting energy into what we are good at has the potential to propel you far within your field of expertise.
  3. If an employee is not performing at their full capacity, look at your managerial style. Change it.
  4. De-clutter your life. Focus on what matters. Forget the baggage.