Ontario Bar Association: Fall Council Meeting

Over the weekend, the Ontario Bar Association held its annual Fall Council Meeting. There were several amazing speakers. President Colin Stevenson spoke about the barriers to innovation and the ways companies are overcoming these barriers.

Barriers to innovation include:

  • The solitary work of lawyers. Lawyers tend to work alone, even in large law firms.
  • Lawyers tend to be risk adverse, and tend to be unwilling to invest in change.
  • Lawyers that are already successful are hesitant to embrace change.

Colin warned that complacency within our legal profession will lead to the obsolescence of lawyers. The Big 4 Accounting Firms are eating into the mid-level transactional work traditionally done by law firms. For instance, EY has invested $2 billion in innovation.

However, through practice innovation, lawyers can also deal with clients more efficiently. He cited examples of innovation by lawyers. For example: 

  • Osler has launched a new service that streamlines estoppel certificate production. 
  • McCarthy Tetrault has launched MT Divisions.
  • Dentons hired an accountant Beth Wilson to manage the Canadian firm. This step shows the professionalization of law.
  • The Legal Innovation Zone at Ryerson University addresses legal needs not well served by lawyers.

At the meeting Attorney General Douglas Downey spoke about the government’s consultations. The government is currently considering whether the estate system should be changed. Right now all estates are dealt with the same way. Meaning the estate of a billionaire is dealt with the same way as an estate worth $20,000. The complex process leaves some smaller estates in limbo. The government is considering providing a simplified procedure for smaller estates.

Acclaimed author and lawyer Andrew Pyper spoke about the importance of narrative. He talked about his writing process. He begins writing a story by thinking of a body of ideas. He then shaves off the things that don’t work until he gets to the core idea.

Pyper recommended that our stories have a main character and that we identify the stakes. By having a main character, the reader becomes invested. The writer must answer why them and why does the reader care about it. By finding the right question, the author tells the right story.

I truly enjoyed the conference and found the topics enlightening.

(Views are my own and do not represent the views of any organization.)

How to Thrive as a Young Lawyer in Today’s Market

 

 

On February 8, 2018, I co-chaired the program for the Young Lawyers Division at the Ontario Bar Association. Titled: “How to Thrive as a Young Lawyer in Today’s Market”.

Erin Cowling from FlexLegal spoke about marketing. Cowling recently won an award for having one of the best legal blogs in Canada. Cowling recommended that we first think about “who is our audience?” Is it potential clients or other lawyers. Are you hoping to get referrals or to get job opportunities. For example, an estate litigator may consider marketing herself to an estate solicitor.

Cowling then spoke about using social media platforms like LinkedIn, Twitter, and blogging. For LinkedIn, she encouraged people to:

  • update their LinkedIn profiles
  • include publications and awards
  • use a professional photograph
  • interact with others
  • post interesting articles for your network.

Cowling also encouraged us to praise the accomplishments of other people, rather than just bragging about yourself.

For Twitter, Cowling recommended:

  • Tweet original content
  • Tweet other people’s content that your followers would like
  • interact with other people on Twitter (in fact Cowling and I first met on Twitter before meeting in person)
  • Tweet regularly
  • share photographs from events
  • use Google alerts related to your practice to find interesting articles to share
  • ignore the trolls

For Blogging, Cowling recommended quality over quantity. Cowling personally blogs once per month. She also connects her blog to the website lawblogs.ca so more people can find her. As always, she reminded us to follow the Rules of Professional Conduct when using social media.

Lynne Lawson and Mary Paterson spoke about business development. Lynne was called to the bar in 1988 and practiced in insurance defence. Paterson is a commercial litigator at Osler. She is a winner of the Benchmark Litigation Under 40 Hot List 2017. For file intake, they recommended asking the client (A) what does success look like and (B) what is the budget. Immediately alert the client if the budget changes. Pleasing the client often means winning the case, on time, inside the budget.

After file intake, do an initial opinion. In the initial opinion talk about what the best probable outcome for the case. Identify further information that is needed. Do you need to retain an expert? Whose responsibility is it to get the information? What is the cost? The initial opinion is essentially a map for the case. You need to tell the client if new information changes the opinion. Most importantly, if a client makes a decision, do not argue with them. Once the decision is made, your role turns from advisor to advocate.

Paterson uses a cheat sheet in her cases. Every file has a sheet that contains: the cause of action, the elements of the cause of action, witnesses, key cases that matter, and the probable outcome. Paterson and Lawson recommended to move the file as quickly as possible. At the end of the matter send out a final report. Outline what has been achieved. And ask the client “what can I do better to meet your needs?”

Ian Hu, the face of Claims Prevention and practicePro at LAWPRO, recommended that young lawyers focus on slowly increasing the number of people you know. He also recommended that we:

  • keep plodding along
  • take advantage of opportunities
  • raise your hand
  • if another lawyer bullies you, use silence to quell the fire. Pausing calms people down. Uncivil conduct can be cured with civil conduct.
  • be likeable – judges like likeable, credible lawyers
  • trust yourself and your opinion of the case
  • don’t be afraid to ask for work

Mitch Kowalski, Professor in Legal Innovation at the University of Calgary, spoke about the future of legal practice. He predicts that the consumer approach to “Doing it Yourself” will increase. This will push the demand for new software and algorithms to solve old legal problems. For example, using Chatbots to challenge parking tickets.

In sum, remember that your career is not a sprint. It is a marathon. Do not expect immediate results after going to an event or writing one article. Instead take one action step per day, whether it be Tweeting, updating LinkedIn, blogging, or meeting someone for coffee.

(Views are my own and do not represent the views of any organization.)

 

 

 

OBA Institute: How to Thrive as a Young Lawyer in Today’s Market

On Thursday February 8, 2018 from 1:30pm to 4:30pm (cocktail reception to follow) the Young Lawyers Division of the Ontario Bar Association will be hosting a CPD Program “How to Thrive as a Young Lawyer in Today’s Market”. The program is focussed on the skills that every young lawyer needs for today’s tricky market.

We will hear from Erin Cowling on social media. Cowling is the winner of the best Canadian law blog. She is a former Bay Street litigator turned freelance lawyer. (@Cowlingerin)

We will also hear from thought leader Mitch Kowalski, Strategic Advisor on Legal Service Innovation. He speaks globally about the future of law and where legal services are heading. (@MEKowalski)

Senior lawyers Lynne Lawson and Mary Paterson (Osler, Hoskin & Harcourt LLP) will speak about managing client expectations and business development. Two significant issues that every practicing lawyer faces. (@Osler_Law)

Ian Hu, of LawPro, will be speaking on career management. He is counsel of Claims Prevention and practicePro. (@IanHuLawPro)

Lastly, we will be hearing from an in-house lawyer’s perspective. In house lawyer, Fernando Garcia (General Counsel at Nissan Canada) will be speaking candidly about the future of law in-house. He will be giving advice to those practicing in-house and to lawyers thinking of going in-house.

This program is a unique opportunity to hear from a variety of perspectives. I hope to see you there.

(Views are my own and do not represent the views of any organization.)

 

 

 

Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

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.

Patrong v Banks et al., Pleading a Drive by Shooting

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In the recent case Patrong v Banks et al., 2015 ONSC 3078 the defendants are calling for an end to the lawsuit before any evidence has been put to the court. Justice Myers writes:

Why should a defendant be able to end a lawsuit that is just at its very beginning?  The defendants have not even denied the story told by the plaintiffs yet.  Nor have they written their statement of defence to set out their side of the story.  But lawsuits are expensive.  They are also a big intrusion into peoples’ lives.  They are stressful.  Because lawsuits are so important, stressful, expensive, and intrusive, the procedural law allows defendants to try to show that they should not be forced to go through the ordeal of being sued…

Mr. Patrong and his mother want to sue the police for compensation for injuries that they suffered due to the negligence of the police.  The story set out above has not yet been proven.  It is the Patrongs’ claim.

Rules have been developed to help the court test the validity of claims in cases like this.  … The law is supposed to change and develop.  If it is reasonably possible that the facts alleged by the plaintiffs might push the law in a novel but plausible way, then the claim should be allowed to proceed. If, however, assuming the facts to be true and reading the claim generously, it is plain and obvious that the plaintiffs cannot win, then I must dismiss the lawsuit now and save everyone the trouble of dealing with it further for no reason.  R. v. Imperial Tobacco Canada Ltd.2011 SCC 42 (CanLII)Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC)[1990] 2 S.C.R. 959.

Ultimately Justice Myers allowed the statement of claim to stand. He states that it is not plain and obvious that the case cannot succeed. He notes in passing that “one stops to wonder whether Detective Banks would have made the same decision … if Riley had been headed into Rosedale or Forest Hill rather than into Malvern.  But that is for another day. There are good reasons to find a duty of care on the facts alleged...”

Find the excellent case here: http://bit.ly/1K4xD9d