Do a Trial

This week I had the great pleasure of volunteering at the Advocates’ Society “Do a Trial”. Below is a list of helpful tips I learned:

  1. Stop talking like a lawyer. Remove legal jargon.
  2. You don’t want to sound like a lawyer. Members of the public don’t like lawyers.
  3. Outline the issues in the opening that you want the judge to answer. Give a roadmap of the evidence – who, what, where, when, why, and how. Only say facts with certainty if you know you can prove it.
  4. It is important to know what use you can make of a witness.
  5. When questioning a witness, know what points you want to make. Each point should be its own page of questions. Repeat phrases throughout. So it flows from one question to the next.
  6. Questions in direct should address – who, what, where, when, why, and how. Avoid talking about stuff that doesn’t matter.
  7. The direct examination should be a narrative.
  8. “Tell me more”. “I’d like to move towards X” – Can be great transitional statements.
  9. Cross-examination should be short statements put to the witness. Build to the conclusion.
  10. Facts have to be pursued. They have to be elicited through the witness.
  11. Reinforce the story through the witness.
  12. When you say phrases like “You concede”, the witnesses antennas go up. They know to fight you on that point.
  13. In closing, focus on the facts you want the judge to remember. And it should address what you want the judgment to say. Point out what you think the crucial things are. And link them to the issues in the case. Headline the issues. “Put the trial back on its rails”.
  14. When you object, remember to wait for the judge’s ruling.
  15. Don’t read something out loud if it is more than 6 words.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

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.

Lessons Regarding Client Relationships

This week I attended the Advocates’ Society’s Mentoring Dinner Series Building Trusted Client Relationships.

The following comments stood out:

  1. Often times if clients are ignoring you, it is because you remind them of a traumatic event (the one that you are litigating). And clients would rather forget the event all together than deal with you. Remind them that you are there to help them. But if you cannot get instructions, you will remove yourself as counsel. You won’t risk looking bad before the court.
  2. Client referrals frequently come from opposing counsel (e.g. they have been conflicted out). Be mindful of this, and be collegial when dealing with opposing counsel. They can be one of your greatest sources of clients.
  3. When courting existing or new clients, don’t be afraid to explicitly ask them for work or more work. Don’t ask, don’t get.
  4. Ask clients for honest feedback. Ask them what can I do better? What have I done well? What would you like to see more of?
  5. Aim to eventually be partially or fully self-sustaining with your caseload. Ways to get there include: networking lunches; giving speeches / setting up a booth at venues that clients frequent (e.g. trade shows, conferences); and contributing to the legal community through speaking engagements, writing, and networking events.

The Canary in the Coal Mine

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In many ways the taxicab industry is the canary in the coal mine. Silently ringing the alarm to tell us that technology companies are circling in on highly regulated industries, ready to disrupt them, ready to leave a wreckage at whatever the cost.

The scariest part of it all?

These new technology companies operate outside the law. In Your Profession, Your Future hosted by the Advocates’ Society, Monica Goyal explained that these new start-ups operate outside the law because they simply cannot afford to operate inside the law.

What will happen when new legal start-ups operate outside the law?

Once one of these apps gains marketshare, some law society out there will sue them. These new apps will hire lawyers. These lawyers will bring the inevitable argument: “This is a technology company and NOT the unlicensed practice of law.”

Regardless of the lawsuit’s outcome, law societies will fail to prevent the onslaught of legal services provided by technology companies. Therefore, law societies must begin to regulate actors beyond lawyers.

Currently in Ontario only lawyers and paralegals are regulated. This is concerning considering that the reign of lawyers is ending and the infiltration of new legal providers is beginning.  “Ultimately,.. the disruptive effect of technology will trigger the end of lawyers’ monopoly (“the Great Disruption”, John McGinnis and Russell Pearce).” Given the inevitable triumph of new actors, regulation of all legal providers must occur, from the lawyer all the way up to the big company.

No one, no “thing” should be above the law. Professor Dodek’s remarks in “Regulating Law Firms in Canada” could easily be extended to start-ups and entrenched legal technology companies (e.g. LegalZoom):

Ultimately, law societies should regulate law firms because of the fundamental rule of law idea that no one is above the law and that the law applies equally to the most powerful as well as to the weakest in society. Law firms exercise significant power within the Canadian legal profession and within Canadian society. The perception that the most powerful within the legal profession lie outside of regulation has the potential to seriously undermine public confidence in self-regulation of the legal profession. It is not enough to simply regulate the individuals who make up law firms because law firms have an independent existence and identity. Individual lawyers promote their practices to the public through the vehicle of the law firm. The public sees law firms but does not see law firms being regulated.

Dodek’s article: http://bit.ly/1NQZgov