1 00:00:12,880 --> 00:00:14,880 Welcome to Studying Law Around the World. 2 00:00:15,020 --> 00:00:17,870 I'm Claudio Claus. In each episode, I talk with 3 00:00:17,880 --> 00:00:20,850 lawyers, law students, and professors from different parts 4 00:00:20,860 --> 00:00:24,730 of the world to talk about legal education, careers, and what the 5 00:00:24,740 --> 00:00:26,410 profession looks like in real life. 6 00:00:26,420 --> 00:00:29,470 We talk about the hard parts, the surprises, and the decisions 7 00:00:29,480 --> 00:00:32,270 that shaped their paths. Whether you're planning to study 8 00:00:32,280 --> 00:00:35,520 abroad, thinking about working in another legal system, or just 9 00:00:35,530 --> 00:00:39,650 curious about how law works around the world, this podcast 10 00:00:39,660 --> 00:00:44,590 is for you. This episode of Standing Around 11 00:00:44,600 --> 00:00:48,810 the World is proudly sponsored by ITL Prep from Emond Exam 12 00:00:48,820 --> 00:00:52,540 Prep, the comprehensive resource designed specifically for 13 00:00:52,550 --> 00:00:56,070 internationally trained lawyers preparing for DMCA exams. 14 00:00:56,140 --> 00:00:59,370 We understand that the NCA accreditation journey can feel 15 00:00:59,380 --> 00:01:01,830 overwhelming. You can face many obstacles 16 00:01:01,840 --> 00:01:06,050 getting to success courses that cost too much, offer too little, 17 00:01:06,200 --> 00:01:08,750 or leave you more confused than when you started. 18 00:01:08,820 --> 00:01:12,690 That's why Inland Exam Prep created ITIL Prep, a smarter, 19 00:01:12,780 --> 00:01:16,110 more reliable way to succeed. 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With ITL Prep, you'll gain 27 00:01:40,050 --> 00:01:43,630 confidence and clarity, whether it's foundational concepts or 28 00:01:43,640 --> 00:01:46,220 you're tackling specialized Canadian law topics. 29 00:01:46,570 --> 00:01:50,260 It's affordable, it's flexible, it's built with viewing mind, 30 00:01:50,330 --> 00:01:53,080 and right now we're offering something special as an 31 00:01:53,090 --> 00:01:56,720 exclusive offer for the Studying Law Around the World podcast 32 00:01:56,730 --> 00:02:01,080 listeners. ITL Prep is offering 50% off all 33 00:02:01,090 --> 00:02:03,780 courses for the 1st 50 purchases. 34 00:02:03,830 --> 00:02:07,600 Simply use the promo code ITL 50 at checkout. 35 00:02:07,670 --> 00:02:11,320 Casebooks and other resources must be purchased separately. 36 00:02:11,370 --> 00:02:19,560 Visit imams.chtodaythatsemod.ca and use promo code ITL 50 to 37 00:02:19,570 --> 00:02:23,820 claim your 50% discount on NCA exam preparation courses. 38 00:02:28,560 --> 00:02:31,630 Have the opportunity to interview Gabriel Letner, who 39 00:02:31,640 --> 00:02:35,470 works in Canada today, but he has experiences in the UK, in 40 00:02:35,480 --> 00:02:39,310 the US, and also in Canada. And I'm very excited to 41 00:02:39,320 --> 00:02:42,570 interview him today because after a short conversation, 42 00:02:42,680 --> 00:02:45,690 we've noticed that I hadn't interviewed many litigators in 43 00:02:45,700 --> 00:02:48,900 the podcast yet. So I'm very excited to hear from 44 00:02:49,020 --> 00:02:51,630 his side and thank you so much for joining in the podcast 45 00:02:51,640 --> 00:02:53,390 today. Happy to be here. 46 00:02:53,400 --> 00:02:56,930 I've already learned something, which is that one podcast hosts 47 00:02:56,940 --> 00:03:00,470 do the introduction that the guest is just sitting there. 48 00:03:00,480 --> 00:03:02,460 I've always thought this was something that you guys weren't 49 00:03:02,470 --> 00:03:05,060 added on afterwards, so I I learned something that was cool. 50 00:03:07,400 --> 00:03:09,330 There you go. Well, thank, thank you for 51 00:03:09,340 --> 00:03:12,110 sitting through it and I appreciate you taking the time 52 00:03:12,120 --> 00:03:14,810 to being here today. I'd love to start our 53 00:03:14,820 --> 00:03:17,730 conversation today, giving you the chance to introduce yourself 54 00:03:17,740 --> 00:03:18,750 to your audience. Sure. 55 00:03:18,760 --> 00:03:21,390 So, so just to start off, so I don't get accused of false 56 00:03:21,400 --> 00:03:23,580 advertising. I never worked in the UK and 57 00:03:23,590 --> 00:03:26,990 especially if Her Majesty's Revenue Service asks, I never 58 00:03:27,000 --> 00:03:30,580 worked in the UK. Canadian kid from Toronto always 59 00:03:30,590 --> 00:03:33,360 wanted to be a lawyer to the point that apparently when I was 60 00:03:33,370 --> 00:03:35,850 three years old, I was running around town people, I was going 61 00:03:35,860 --> 00:03:38,070 to sue them. So you can imagine, I had lots 62 00:03:38,080 --> 00:03:41,460 of friends growing up. When I was finishing high 63 00:03:41,470 --> 00:03:45,160 school, I learned that you could go to law school directly in 64 00:03:45,170 --> 00:03:49,200 Australia and in the UK. So I applied to those programs, 65 00:03:49,210 --> 00:03:53,260 got to school in the UK, did a Bachelors of Laws, which there 66 00:03:53,270 --> 00:03:57,060 is the purely academic degree. I never did the professional 67 00:03:57,070 --> 00:03:59,540 training that you would do to become a barrister or solicitor 68 00:03:59,610 --> 00:04:03,400 in the UK because I went to the US to get a masters in 69 00:04:03,410 --> 00:04:08,840 constitutional law and appellate litigation at Georgetown in DC 70 00:04:08,850 --> 00:04:11,120 because I was going to become a law professor. 71 00:04:11,130 --> 00:04:15,420 The problem was I was 22 when I graduated from that program and 72 00:04:15,430 --> 00:04:17,540 found that a little hard to get a job. 73 00:04:17,589 --> 00:04:20,700 So the professor who had talked me into academia pulled some 74 00:04:20,709 --> 00:04:26,280 strings and I got edit game doing basically writing amicus 75 00:04:26,290 --> 00:04:30,080 briefs for a think tank in DC. My first two years of practice 76 00:04:30,090 --> 00:04:33,160 was pure constitutional law, pure Appel litigation, and it 77 00:04:33,170 --> 00:04:36,560 was a totally unrealistic introduction to what the 78 00:04:36,570 --> 00:04:41,400 practice of law actually is. I was on a NAFTA visa when Matt 79 00:04:41,410 --> 00:04:43,280 ran out. I came back to Canada 80 00:04:43,350 --> 00:04:47,060 requalified, started looking for a job, didn't find a job. 81 00:04:47,070 --> 00:04:50,350 So I hung up my own shingle and I've been kind of doing my own 82 00:04:50,360 --> 00:04:53,600 thing for the last 10 years. Summarizing. 83 00:04:53,970 --> 00:04:56,200 I'm not great at math. So that's incredible. 84 00:04:56,250 --> 00:04:59,940 So thank you for clarifying on, on the UK aspect of it. 85 00:04:59,950 --> 00:05:03,220 And was, as you mentioned, all of these different experiences 86 00:05:03,230 --> 00:05:06,780 and, and even starting to work with appellate litigation, 87 00:05:06,790 --> 00:05:08,520 specifically in constitutional issues. 88 00:05:08,530 --> 00:05:12,340 I think the US it's, it's a very interesting place to to be able 89 00:05:12,350 --> 00:05:14,180 to do that. But I'd love to know 90 00:05:14,190 --> 00:05:17,860 specifically how have these experiences all throughout the 91 00:05:17,870 --> 00:05:21,500 world in a way or ultra, all the common law shaped your approach 92 00:05:21,510 --> 00:05:24,060 to, to litigation, to legal writing? 93 00:05:24,150 --> 00:05:27,000 And also if you could mention some of the key aspects of the 94 00:05:27,010 --> 00:05:29,840 differences you see in litigating in the US and 95 00:05:29,850 --> 00:05:33,080 litigating in Canada? OK, for sure. 96 00:05:33,090 --> 00:05:37,150 A couple of caveats being that I can't do a direct one to one 97 00:05:37,160 --> 00:05:41,110 comparison because I went to law school in the UK for undergrad 98 00:05:41,120 --> 00:05:43,520 and nowhere else. So I don't know how different it 99 00:05:43,530 --> 00:05:46,310 would be from say Canadian undergraduate degree saying for 100 00:05:46,320 --> 00:05:49,570 my masters in the US and then practicing very high level. 101 00:05:49,580 --> 00:05:54,840 I would say the UK's approach to legal education, and especially 102 00:05:54,850 --> 00:05:59,700 where I was, was very academically oriented, very 103 00:05:59,710 --> 00:06:04,020 theory oriented. You do contract law as one of 104 00:06:04,030 --> 00:06:06,600 four courses that you do for your entire first year. 105 00:06:06,610 --> 00:06:11,220 So my first year was contract law, property, criminal law, and 106 00:06:11,230 --> 00:06:14,600 I guess Roman law rounded it up. So you're only doing 4 courses 107 00:06:14,610 --> 00:06:17,500 for the entire year. It's a very, very intense 108 00:06:17,510 --> 00:06:20,170 program. You get into the weeds of the 109 00:06:20,230 --> 00:06:23,180 kind of intricacies of different legal areas to a level that I 110 00:06:23,190 --> 00:06:27,120 don't think innovating in American law schools might go. 111 00:06:27,170 --> 00:06:29,780 And then you're also studying things that I don't think you 112 00:06:29,830 --> 00:06:31,460 normally study in Canada, the US. 113 00:06:31,470 --> 00:06:35,740 So Roman law, jurisprudence as an undergrad and then some, you 114 00:06:35,750 --> 00:06:38,920 know, there was a, a dedicated, you know, history class, but 115 00:06:39,050 --> 00:06:41,610 half of your courses are basically legal history because 116 00:06:41,620 --> 00:06:45,700 they take you from the earliest days of the common law in 117 00:06:45,710 --> 00:06:49,330 England or church law and then build up to modern jurisprudence 118 00:06:49,340 --> 00:06:50,940 or taste books. In some case. 119 00:06:50,950 --> 00:06:54,560 We're going back to the 14116 hundred 1600s and you're 120 00:06:54,570 --> 00:06:56,020 watching the evolution of the law. 121 00:06:56,210 --> 00:06:59,540 So I'd say that taught me a lot about how to read. 122 00:06:59,610 --> 00:07:02,680 Basically the way that I approach reading a decision 123 00:07:02,690 --> 00:07:06,430 affect anything like that is what my professors taught me in 124 00:07:06,440 --> 00:07:10,060 the UK. It's a very clinical, analytical 125 00:07:10,070 --> 00:07:12,240 approach. You break everything down into 126 00:07:12,250 --> 00:07:16,060 its constituent parts and units. Harrogate them super useful US. 127 00:07:16,070 --> 00:07:17,800 I guess that would be the mirror image of that. 128 00:07:17,810 --> 00:07:20,460 They taught me how to write. So one of the biggest 129 00:07:20,470 --> 00:07:24,470 differences and I've noticed between the US and the Canada is 130 00:07:24,640 --> 00:07:29,610 the time limits and page limits that you have for submissions in 131 00:07:29,620 --> 00:07:32,980 the US, particularly the appellate level are extremely 132 00:07:32,990 --> 00:07:36,340 short compared to Canada. So in the US, you might have an 133 00:07:36,350 --> 00:07:42,020 appeal or a motion where each side gets 10 or 15 pages of 134 00:07:42,030 --> 00:07:45,330 written submissions and then 10 minutes of oral submissions. 135 00:07:45,340 --> 00:07:49,780 And in Canada, that's more or less, what, a 9:30? 136 00:07:49,790 --> 00:07:51,980 So that's what we would give someone just to schedule a 137 00:07:51,990 --> 00:07:54,800 motion. You'd get, you know, 5 pages of 138 00:07:54,810 --> 00:07:57,480 an aide memoir because no one actually keeps them to three. 139 00:07:57,490 --> 00:08:00,290 And then you get 10 minutes to tap trap with the judge. 140 00:08:00,300 --> 00:08:02,360 And the other guy would get 10 minutes to chat with the judge. 141 00:08:02,370 --> 00:08:05,800 And then sometime down the road, you're going to spend 2 to 4 142 00:08:05,810 --> 00:08:08,330 hours of the court's time arguing about something that in 143 00:08:08,340 --> 00:08:11,160 the US would have been handled on your first appearance. 144 00:08:11,230 --> 00:08:15,940 So that's a huge difference. And it means that you have to be 145 00:08:15,950 --> 00:08:19,770 extremely selective the missions. 146 00:08:19,820 --> 00:08:23,620 So if you don't get to say I have 7 grounds of appeal and I 147 00:08:23,630 --> 00:08:26,850 have 3 arguments on each ground and three examples for each 148 00:08:26,860 --> 00:08:31,390 argument, you basically have to pick your top one or two points, 149 00:08:31,600 --> 00:08:34,990 make them extremely concisely, and then get out. 150 00:08:35,059 --> 00:08:38,490 So that it forces a level of focus that I, I don't think is 151 00:08:38,500 --> 00:08:41,470 necessarily forced on us by the Canadian courts. 152 00:08:41,480 --> 00:08:44,030 That would probably be the biggest kind of distinction that 153 00:08:44,039 --> 00:08:45,910 I've noticed between Ted and the US. 154 00:08:45,960 --> 00:08:51,110 Another one would be deadlines and court rules are treated. 155 00:08:51,180 --> 00:08:54,730 So in the US, I'm really talking about the federal system, which 156 00:08:54,740 --> 00:08:56,310 is where I have the most experience. 157 00:08:56,440 --> 00:09:02,590 If something is due on September 29th, it is due on September 158 00:09:02,600 --> 00:09:05,010 29th. And if you try and upload it to 159 00:09:05,020 --> 00:09:10,630 the court system, you know at 12:01 on September 30th, it is 160 00:09:10,640 --> 00:09:12,770 not going to be accepted. It is going to be rejected as 161 00:09:12,780 --> 00:09:14,530 the late and out of time. You're going to have to bring a 162 00:09:14,540 --> 00:09:16,410 motion, you have to get court permission, You'll have to 163 00:09:16,420 --> 00:09:19,460 explain why, obviously. Whereas in Canada we have 164 00:09:19,470 --> 00:09:22,290 deadlines, we have some extremely strict deadlines. 165 00:09:22,300 --> 00:09:24,980 If you think about it, normally for a statement of claim, if you 166 00:09:24,990 --> 00:09:28,530 look at what it says on paper, you have 20 days to respond, 30 167 00:09:28,540 --> 00:09:30,890 days if you file a notice of intent to defend. 168 00:09:30,940 --> 00:09:34,120 That usually doesn't happen. You might closed pleadings and 169 00:09:34,130 --> 00:09:36,700 get a statement of defence for six months or a year. 170 00:09:36,750 --> 00:09:39,800 And I'll truly, we've sort of been told by the courts don't 171 00:09:39,810 --> 00:09:43,740 bring motions for default judgment and everyone's entitled 172 00:09:43,750 --> 00:09:47,040 to a day in court on the merits, which means that a lot of 173 00:09:47,050 --> 00:09:49,800 procedural protections kind of get swept away. 174 00:09:49,910 --> 00:09:53,180 So the timelines in Ontario don't mean much. 175 00:09:53,230 --> 00:09:56,160 Whereas in certain US jurisdictions, you live and die 176 00:09:56,170 --> 00:09:58,780 by the clock. So there's a very different 177 00:09:58,790 --> 00:10:01,890 culture on that point. Well, that's so interesting. 178 00:10:01,900 --> 00:10:04,880 That's really interesting. I did, I did not know about the 179 00:10:04,950 --> 00:10:06,980 the flexibility and the possibilities. 180 00:10:06,990 --> 00:10:09,960 And it's interesting as somebody who is very much focused on a 181 00:10:09,970 --> 00:10:12,940 solicitor kind of practice and right now just as an articling 182 00:10:12,950 --> 00:10:16,220 student, but basically reading the bar materials for the 183 00:10:16,310 --> 00:10:19,430 barrister exam, it's, it's interesting to see all the, the 184 00:10:19,440 --> 00:10:22,530 deadlines and I had no idea about all the the flexibility 185 00:10:22,540 --> 00:10:25,330 that is actually possible. So, so, you know, keeping my 186 00:10:25,340 --> 00:10:28,110 audience in mind, then I guess I should take this moment to say 187 00:10:28,120 --> 00:10:31,800 no, there is no flexibility. And and young lawyers and future 188 00:10:31,810 --> 00:10:35,250 lawyers, if it says 10 days in the rules of Civil Procedure, 189 00:10:35,260 --> 00:10:38,490 you have to do it in 10 days. Now, the exceptions, you know, 190 00:10:38,500 --> 00:10:40,230 be the change you want to see in the world. 191 00:10:40,240 --> 00:10:43,070 But yeah, so you've been paying attention or it's just been 192 00:10:43,080 --> 00:10:46,090 paying attention. The big story, at least in 193 00:10:46,100 --> 00:10:49,450 Ontario now is that they're redoing the civil rules. 194 00:10:49,760 --> 00:10:52,990 We got their first or what was actually the phase two report a 195 00:10:53,000 --> 00:10:55,490 few months ago. In the opening of the court 196 00:10:55,500 --> 00:10:58,670 speech very recently, the Chief Justice was indicating that 197 00:10:58,680 --> 00:11:00,740 there are going to be significant changes. 198 00:11:00,860 --> 00:11:03,030 I think that's part of that. They're probably gonna have to 199 00:11:03,040 --> 00:11:05,470 change their approach to deadlines, but we'll see if that 200 00:11:05,480 --> 00:11:08,130 actually sticks. The problem is the rules can say 201 00:11:08,140 --> 00:11:11,790 whatever they want, but unless both the Superior Court and the 202 00:11:11,800 --> 00:11:14,810 Court of Appeal are consistently enforcing them as written, it 203 00:11:14,820 --> 00:11:17,570 doesn't really matter. So we can have the most 204 00:11:17,580 --> 00:11:21,590 aggressive summary judgment rules that you can imagine, But 205 00:11:21,600 --> 00:11:25,590 if the courts consistently say no, I'm not granting summary 206 00:11:25,600 --> 00:11:27,170 judgment, I'm not granting summary judgment. 207 00:11:27,180 --> 00:11:29,410 It was inappropriate for the court below to grant summary 208 00:11:29,420 --> 00:11:32,570 judgment. It creates a feedback loop were 209 00:11:32,580 --> 00:11:34,990 fewer lawyers will feel comfortable bringing these types 210 00:11:35,000 --> 00:11:36,390 of motions. Fantastic. 211 00:11:36,400 --> 00:11:37,990 Well, thank you for sharing that. 212 00:11:38,740 --> 00:11:41,750 As I kind of looked into your profile and based on the the 213 00:11:41,760 --> 00:11:44,750 meeting we had before, I realized that that most of the 214 00:11:44,760 --> 00:11:48,310 work of a litigator, your work with this experience as well, is 215 00:11:48,320 --> 00:11:51,510 often taking complicated legal problems and making them 216 00:11:51,520 --> 00:11:55,430 straightforward on paper, usually right for for judges to 217 00:11:55,440 --> 00:11:58,870 read or you know, for that decision should be made, I guess 218 00:11:58,880 --> 00:12:00,870 at at points as well as an oral argument. 219 00:12:00,960 --> 00:12:03,850 And I'd love to to hear a little more about what that process 220 00:12:03,860 --> 00:12:06,150 looks like. So what's your process for 221 00:12:06,200 --> 00:12:10,050 identifying the key issues that that truly decide a case? 222 00:12:10,100 --> 00:12:13,630 So there's two questions there which are really interesting. 1 223 00:12:13,680 --> 00:12:17,010 is how do you make something complicated, looks simple on 224 00:12:17,020 --> 00:12:20,370 paper, and the other one is audio identify kind of the 225 00:12:20,380 --> 00:12:23,010 critical question or issue that the case is going to turn. 226 00:12:23,440 --> 00:12:25,530 I'll start with the first one because it's much easier for me 227 00:12:25,540 --> 00:12:28,210 to answer. So there's two types of 228 00:12:28,220 --> 00:12:32,590 complexity in cases that I see. The 1st is factual complexity. 229 00:12:32,740 --> 00:12:36,380 So this is a scenario where, you know, you might have parties 230 00:12:36,390 --> 00:12:39,230 that have been doing business together for 15 years. 231 00:12:39,320 --> 00:12:42,430 There's tons of different contracts, there's different 232 00:12:42,440 --> 00:12:47,050 emails, there's a lot of moving pieces and a lot has happened 233 00:12:47,060 --> 00:12:49,120 that's contributed to the mess that people are. 234 00:12:49,300 --> 00:12:54,890 So for complicated facts, what I like to do is kind of take it 235 00:12:54,900 --> 00:12:57,190 back to torque one-on-one and causation. 236 00:12:57,300 --> 00:13:00,000 So it doesn't matter what type of case you're doing, eventually 237 00:13:00,010 --> 00:13:01,440 the judge is going to have to decide it. 238 00:13:01,450 --> 00:13:04,320 Judges are human. Humans are better at linear 239 00:13:04,330 --> 00:13:06,540 thinking than we are parallel thinking. 240 00:13:06,610 --> 00:13:08,980 And we're narrative creatures. So we like thinking about 241 00:13:08,990 --> 00:13:11,320 stories, We like thinking about cause and effect. 242 00:13:11,370 --> 00:13:15,580 So kind of work backwards from the bad thing that happened. 243 00:13:15,590 --> 00:13:19,680 OK, my client lost $1,000,000. Why did my client miss lose 244 00:13:19,690 --> 00:13:22,280 $1,000,000? Because the other side didn't 245 00:13:22,290 --> 00:13:25,290 deliver these widgets on time. Why didn't they deliver widgets 246 00:13:25,300 --> 00:13:26,810 on time? Oh, because they didn't ship 247 00:13:26,820 --> 00:13:28,160 them. Why didn't they ship them? 248 00:13:28,230 --> 00:13:31,030 Because of this issue. And you work backwards to find 249 00:13:31,040 --> 00:13:33,460 the inciting cause. And then you can look at your 250 00:13:33,470 --> 00:13:35,980 facts set again. And anything that's not part of 251 00:13:35,990 --> 00:13:39,080 that chain of events, just get rid of it, minimize it. 252 00:13:39,090 --> 00:13:41,560 You can summarize it, stick it in the back of someone's 253 00:13:41,610 --> 00:13:43,960 affidavit if you think it's really, really important. 254 00:13:44,090 --> 00:13:46,710 But when you're telling the story to the judge, everything 255 00:13:46,720 --> 00:13:50,130 you say has to be part of the story. 256 00:13:50,140 --> 00:13:52,330 That leads to the problem, that leads to the result. 257 00:13:52,380 --> 00:13:58,390 O that's very easy to say. It's very hard to do in terms of 258 00:13:58,450 --> 00:14:02,100 how to do that successfully. I'm a big fan of diagrams on the 259 00:14:02,110 --> 00:14:05,040 court will allow them. I also think a lot of the 260 00:14:05,050 --> 00:14:09,460 problems come from lawyers not doing enough discovery or 261 00:14:09,470 --> 00:14:12,540 interrogation of their own clients evidence. 262 00:14:12,590 --> 00:14:16,300 Very often you'll get a story that OK, seems plausible. 263 00:14:16,310 --> 00:14:19,620 But when you start to kind of pick it below the surface. 264 00:14:19,670 --> 00:14:22,340 Well, there's this e-mail that your client never told you about 265 00:14:22,350 --> 00:14:25,240 and this conversation that the other side is raising an oh, 266 00:14:25,250 --> 00:14:28,300 they have a recording of it. And then what you very often end 267 00:14:28,310 --> 00:14:32,240 up with is 2 competing narratives and not to get very 268 00:14:32,250 --> 00:14:34,920 complicated because the plaintiff is essentially saying 269 00:14:34,930 --> 00:14:38,220 story A, the defendant history saying story B. 270 00:14:38,290 --> 00:14:41,630 And not only did these stories disagree with each other in a 271 00:14:41,640 --> 00:14:43,730 lot of the time they're discussing completely different 272 00:14:43,740 --> 00:14:45,270 events. So I think what's really 273 00:14:45,280 --> 00:14:48,120 important is when you first get on a file, you go through your 274 00:14:48,130 --> 00:14:50,330 own clients evidence, you go through your own client story 275 00:14:50,340 --> 00:14:53,890 with a pretty fine toothed comb. And you picked out all the 276 00:14:53,900 --> 00:14:55,810 things that you think are going to be problems and you figure 277 00:14:55,820 --> 00:14:57,390 out how you're going to address them and how you're going to 278 00:14:57,400 --> 00:15:00,050 simplify them. The second question you asked 279 00:15:00,060 --> 00:15:04,770 was how do you figure out kind of what the the issue is, what 280 00:15:04,780 --> 00:15:07,810 the key legal issue is? And the way I like to approach 281 00:15:07,820 --> 00:15:12,590 it is to start by saying, OK, if everything that the defendant or 282 00:15:12,650 --> 00:15:16,630 if everything that the other side is saying is correct 283 00:15:16,690 --> 00:15:19,630 factually, if every factual allegation that the other side 284 00:15:19,640 --> 00:15:22,830 is making is true, why does my client still win? 285 00:15:23,020 --> 00:15:26,480 What is the legal argument that means my client still wins and 286 00:15:26,490 --> 00:15:28,450 if I have one, great, I'm off to the race. 287 00:15:28,460 --> 00:15:30,480 There's motion to strike, summary judgment motion, 288 00:15:30,490 --> 00:15:32,880 whatever, because the facts at that point, see smack. 289 00:15:32,890 --> 00:15:36,900 Second part of that is OK, on the facts, as the other side 290 00:15:36,910 --> 00:15:42,910 presents them, my client can. So what is the easiest to prove 291 00:15:42,950 --> 00:15:46,940 fact or easiest to disprove fact, which would change that so 292 00:15:46,950 --> 00:15:49,700 that my client wouldn't. So they're saying there was no 293 00:15:49,710 --> 00:15:51,440 contract. Well, there was no contract. 294 00:15:51,450 --> 00:15:53,940 My client can't possibly sue for breach of contract. 295 00:15:53,990 --> 00:15:56,660 So what's is there an easy simple way for me to prove that 296 00:15:56,670 --> 00:15:58,430 there was a contract? Oh yes, because I have one 297 00:15:58,440 --> 00:16:01,480 that's signed here. So it's starting from what would 298 00:16:01,490 --> 00:16:04,980 in theory be the easiest case to win, which is everything the 299 00:16:04,990 --> 00:16:07,910 other side says is true. I still win because the laws on 300 00:16:07,920 --> 00:16:12,460 my side to the slightly harder case, which is I need to prove 301 00:16:12,470 --> 00:16:15,480 one key fact. And if I prove that key fact, I 302 00:16:15,490 --> 00:16:18,500 win. And then when he's as you add in 303 00:16:18,510 --> 00:16:20,970 additional facts that need to be proven, you've got a more and 304 00:16:20,980 --> 00:16:23,840 more complicated case. But if you can start just by 305 00:16:23,850 --> 00:16:27,820 saying, OK, I don't need to prove every allegation my client 306 00:16:27,830 --> 00:16:29,880 is making. I don't need to disprove every 307 00:16:29,890 --> 00:16:32,040 allegation the other side is making. 308 00:16:32,110 --> 00:16:35,120 I don't need to turn this into a, you know, three years of 309 00:16:35,130 --> 00:16:38,260 discovery, three months of trial, arguing over this issue, 310 00:16:38,270 --> 00:16:40,940 because at the end of the day, the only thing that really 311 00:16:40,950 --> 00:16:43,800 matters is question X. So if you can get to that 312 00:16:43,810 --> 00:16:45,740 question very early on, it's great. 313 00:16:45,750 --> 00:16:50,620 And you know, how do identify that first legal question is to 314 00:16:50,630 --> 00:16:53,300 do something which a lot of Canadian lawyers don't do, at 315 00:16:53,310 --> 00:16:59,260 least in practice, which is diagram out the actual elements 316 00:16:59,270 --> 00:17:02,340 of each cause of action. So, you know, go to your 317 00:17:02,350 --> 00:17:06,510 textbook, go to your casebook, go find the leading case on, you 318 00:17:06,520 --> 00:17:09,109 know, I'm just enrichment or whatever cause of action you're 319 00:17:09,119 --> 00:17:11,880 dealing with. It has re elements. 320 00:17:11,890 --> 00:17:16,880 So, you know, a benefit to the defendant, A corresponding loss 321 00:17:16,890 --> 00:17:20,390 by the plaintiff and the absence of juristic reason, right? 322 00:17:20,400 --> 00:17:22,230 Those would be the three elements for an adjustment 323 00:17:22,240 --> 00:17:24,660 claim. Dove through the facts and be 324 00:17:24,670 --> 00:17:27,000 like, OK, what facts support each element of this? 325 00:17:27,010 --> 00:17:30,390 Oh, they haven't needed a corresponding deprivation. 326 00:17:30,400 --> 00:17:32,920 They're just saying I've got something, but they didn't lose 327 00:17:32,930 --> 00:17:34,880 anything. OK, that's not unjust enrichment 328 00:17:35,270 --> 00:17:37,960 or hey, absence of a juristic reason. 329 00:17:37,970 --> 00:17:41,220 While a lot of people make the mistake of pleading unjust 330 00:17:41,230 --> 00:17:44,390 enrichment while they're in a contract dispute, they're saying 331 00:17:44,400 --> 00:17:47,270 you guys breached the contract that caused any loss and if it 332 00:17:47,280 --> 00:17:49,700 didn't cause any loss, you were unjustly enriched. 333 00:17:49,770 --> 00:17:52,760 The problem is that once there's a contract that provides for the 334 00:17:52,770 --> 00:17:55,840 benefit you can't possibly have and Justin Richmond claim here's 335 00:17:55,850 --> 00:17:58,630 some completely different universe great there you have a 336 00:17:58,640 --> 00:18:00,690 motion to strike and I'm just wondering when you can take it 337 00:18:00,700 --> 00:18:03,700 off the table. So negligence same thing Why is 338 00:18:03,710 --> 00:18:06,190 there a duty of care What's their proximity was there this 339 00:18:06,200 --> 00:18:08,950 was there that what was the standard of care that's being 340 00:18:08,960 --> 00:18:13,000 alleged Why are they alleging it shortfall really do a very 341 00:18:13,010 --> 00:18:16,290 thorough clinical approach and say this is what you have to 342 00:18:16,300 --> 00:18:18,450 prove to win. You haven't pleaded the right 343 00:18:18,460 --> 00:18:22,310 facts or you've misstated the law or you're not seeing some 344 00:18:22,320 --> 00:18:26,450 key defence or tissue that can let my side win and then narrow 345 00:18:26,460 --> 00:18:30,050 in on focusing on the narrowest point of disagreement. 346 00:18:30,120 --> 00:18:32,750 You want to get to the thing that's going to be easiest for 347 00:18:32,760 --> 00:18:35,390 you to tip over into the line, which is going to change the 348 00:18:35,400 --> 00:18:37,950 outcome of the case. Because that's what lets you 349 00:18:37,960 --> 00:18:43,910 write a 15 page factum that has a linear, very clearly 350 00:18:43,920 --> 00:18:48,250 understood statement of the facts, raises 1-2 or at most 351 00:18:48,260 --> 00:18:51,910 three legal issues for the judge, and then clearly applies 352 00:18:51,920 --> 00:18:54,130 those issues. If you're going to be arguing 353 00:18:54,140 --> 00:18:57,990 about an entire case and you're going to be arguing every single 354 00:18:58,000 --> 00:19:01,430 point of the case, every single fact, every single element of 355 00:19:01,440 --> 00:19:06,170 the cause of action, there's no way to do that well in 40 pages. 356 00:19:06,180 --> 00:19:08,270 There's no way to do that well in an hour. 357 00:19:08,400 --> 00:19:11,290 At that point, you're talking about a trial. 358 00:19:11,410 --> 00:19:14,690 And what you're telling the judge is every fact in this case 359 00:19:14,700 --> 00:19:17,130 matters. I need to prove all of these 360 00:19:17,140 --> 00:19:19,950 facts or disprove all of those facts to win. 361 00:19:20,040 --> 00:19:22,090 And this is a super complicated issue. 362 00:19:22,140 --> 00:19:24,490 Sometimes that's true. There are cases I've seen where 363 00:19:24,500 --> 00:19:28,050 there's no way to kind of get to the end without going through 364 00:19:28,060 --> 00:19:31,990 that fact finding process. But I find that a lot of lawyers 365 00:19:32,980 --> 00:19:36,700 are so afraid of giving up ground that even on something 366 00:19:36,710 --> 00:19:40,150 like a Rule 21 motion, they're not willing to put any of their 367 00:19:40,160 --> 00:19:42,970 arguments to one side. They're not willing to concede 368 00:19:42,980 --> 00:19:45,910 that there is a universe where the other side might be right 369 00:19:45,920 --> 00:19:48,730 about anything. So I might say something like, 370 00:19:48,920 --> 00:19:51,130 hey, you know, since they've pleaded that there was a 371 00:19:51,140 --> 00:19:53,990 contract, they can't really argue on Justin Richmond. 372 00:19:54,040 --> 00:19:58,170 And the lawyer on one advising here would say something like, 373 00:19:58,180 --> 00:20:00,020 well, but there's no contract. There's no contract. 374 00:20:00,030 --> 00:20:01,100 And they're dead wrong about this. 375 00:20:01,110 --> 00:20:02,470 There's no contract. There's no contract. 376 00:20:02,480 --> 00:20:04,230 We can prove there's no contract. 377 00:20:04,300 --> 00:20:07,030 And it can be difficult to make the point to them, which is, 378 00:20:07,100 --> 00:20:09,400 yeah, but it doesn't matter whether you can prove there's a 379 00:20:09,410 --> 00:20:12,110 contract or not. They've said two things that are 380 00:20:12,120 --> 00:20:14,810 mutually incompatible. So why don't we just force them 381 00:20:14,820 --> 00:20:17,680 to swallow it so? I say that's kind of the 382 00:20:17,690 --> 00:20:20,660 approach I like to take you. You start from the simplest 383 00:20:20,670 --> 00:20:24,600 possible version of your case and then get as complicated as 384 00:20:24,610 --> 00:20:26,660 you need to be, but no more complicated. 385 00:20:26,720 --> 00:20:31,240 Amazing, As you were bringing that up and giving an example of 386 00:20:31,310 --> 00:20:34,560 I guess a more regular litigation with two parties. 387 00:20:34,570 --> 00:20:38,100 I can see how those principles will apply to constitutional 388 00:20:38,110 --> 00:20:41,960 litigation to to a very big extent, especially on finding 389 00:20:41,970 --> 00:20:45,020 the issue of law and then basically attacking that very 390 00:20:45,030 --> 00:20:48,760 specific point at 1st and, and as you said, going as deep as 391 00:20:48,770 --> 00:20:50,900 you need to, but not not much more than that. 392 00:20:50,910 --> 00:20:53,010 It does that make sense? Is that, is that what you're 393 00:20:53,020 --> 00:20:55,860 experienced as well when it comes to constitutional 394 00:20:55,870 --> 00:20:57,500 litigation? I don't know if Charter 395 00:20:57,510 --> 00:20:59,640 litigation was also something that you've got. 396 00:20:59,740 --> 00:21:05,660 Work on, but have done both. I'll say in the US, in my 397 00:21:05,670 --> 00:21:09,850 experience, constitutional litigation almost always ends up 398 00:21:09,860 --> 00:21:13,250 being an interpretive exercise. So it's about interpreting the 399 00:21:13,260 --> 00:21:16,490 constitution or interpreting A statute that someone is arguing 400 00:21:16,500 --> 00:21:20,450 is unconstitutional, which means while there will be a factual 401 00:21:20,460 --> 00:21:22,810 record, it's usually not front and sent. 402 00:21:22,820 --> 00:21:26,520 Everyone typically will kind of agree what the basic facts are. 403 00:21:26,600 --> 00:21:29,550 Brandeis briefs might go in which are like, oh, here's what 404 00:21:29,560 --> 00:21:34,350 the social impact will be. But there's not as much argument 405 00:21:34,400 --> 00:21:38,390 about factually what is happening with the consequences 406 00:21:38,500 --> 00:21:41,410 of a government decision are because it's a little more 407 00:21:41,420 --> 00:21:43,200 abstract than odds. Is this something that 408 00:21:43,210 --> 00:21:46,540 governments allowed to do? I tried to port that over to 409 00:21:46,550 --> 00:21:49,940 charge with litigation when I first moved here and fired off 410 00:21:49,950 --> 00:21:54,220 some like very, very abstract Charter applications be like, Oh 411 00:21:54,230 --> 00:21:57,400 yeah, this is unconstitutional for XYZ reasons and I got 412 00:21:57,410 --> 00:22:01,160 nowhere because the Canadian approach to constitutional law 413 00:22:01,370 --> 00:22:06,140 is far more fact specific. You have trials that are about 414 00:22:06,150 --> 00:22:08,380 Charter violations. I don't mean oh, there was a 415 00:22:08,390 --> 00:22:11,000 Charter violation in the trial in the criminal context. 416 00:22:11,050 --> 00:22:17,460 I mean you get litigation going 357 years about whether or not a 417 00:22:17,470 --> 00:22:20,100 law is constitutional. Do you want to look at things 418 00:22:20,110 --> 00:22:22,780 like the Bedford Challenge prostitution That was an 419 00:22:22,790 --> 00:22:27,830 application on a trial, but like the original trial decision in 420 00:22:27,840 --> 00:22:30,150 that case was several 100 interests. 421 00:22:30,210 --> 00:22:34,840 It was extremely, extremely fact about if you go and look at the 422 00:22:34,910 --> 00:22:39,910 BC LA cases about assisted suicide, those one of ways 423 00:22:39,920 --> 00:22:43,090 involved told me like the amount that photocopies that they had 424 00:22:43,100 --> 00:22:47,050 was as much as my clients have spent on entire pieces of 425 00:22:47,060 --> 00:22:50,730 litigation. It is a very fact specific 426 00:22:50,740 --> 00:22:54,930 process, may be more akin to an inquiry or a coroner's inquest. 427 00:22:55,400 --> 00:23:00,000 Then you know what passes for constitutional litigation at the 428 00:23:00,010 --> 00:23:02,520 trial level in the US, where it's basically just the 429 00:23:02,750 --> 00:23:04,850 equivalent of a motion or an application in front of the 430 00:23:04,860 --> 00:23:06,970 judge. You don't have big, in my 431 00:23:06,980 --> 00:23:11,080 experience, weighty fact down trials that are changing the 432 00:23:11,090 --> 00:23:13,080 law. Very interesting point. 433 00:23:13,090 --> 00:23:17,160 And Gabriel, you've described yourself online as a lawyer that 434 00:23:17,170 --> 00:23:20,280 clients call when negotiations have failed. 435 00:23:20,390 --> 00:23:23,580 So I also wanted to ask you, when do you decide that it's 436 00:23:23,590 --> 00:23:26,820 worth fighting for something in court rather than just pushing 437 00:23:26,830 --> 00:23:29,950 for settlement? So I don't, which is great. 438 00:23:29,960 --> 00:23:33,930 That's not my job. I am not the person who decides 439 00:23:33,940 --> 00:23:36,720 whether to settle. And I actually think this is a 440 00:23:36,730 --> 00:23:40,120 very important point that a lot of lawyers miss, You know, is 441 00:23:40,130 --> 00:23:42,160 anyone ever worked against is listening to this? 442 00:23:42,170 --> 00:23:45,640 My apologies. But if you ever came to me on 443 00:23:45,650 --> 00:23:48,700 the phone or in the hallway and said something like, come on, 444 00:23:48,710 --> 00:23:51,340 Gabe, your client is being unreasonable. 445 00:23:51,350 --> 00:23:54,820 It's your job to talk them into accepting the settlement offer. 446 00:23:54,930 --> 00:23:57,620 You blew whatever respect I had for you in that moment. 447 00:23:57,670 --> 00:24:00,570 That is not a lawyer's job. We don't tell clients to settle. 448 00:24:00,580 --> 00:24:02,160 We don't tell clients to go to court. 449 00:24:02,210 --> 00:24:05,800 My job is to lay out the legal strengths and weaknesses of my 450 00:24:05,810 --> 00:24:09,440 client's case, tell them what I think the predictable likely 451 00:24:09,450 --> 00:24:13,410 range of outcomes might be at trial from, you know, if you 452 00:24:13,420 --> 00:24:15,500 lose, what's the likelihood of that? 453 00:24:15,510 --> 00:24:19,310 What would be, you know, average costs or against you be like 454 00:24:19,320 --> 00:24:22,080 blah blah blah to hey, here's what you will get if everything 455 00:24:22,090 --> 00:24:23,000 goes. Exactly. 456 00:24:23,650 --> 00:24:26,650 It is not my job to tell my client to settle. 457 00:24:26,660 --> 00:24:29,960 It is not my job to tell my client that they should go to 458 00:24:29,970 --> 00:24:31,660 mediation. It's not my job to tell them 459 00:24:31,670 --> 00:24:33,580 they should listen to what the mediator is saying. 460 00:24:33,650 --> 00:24:38,130 All I can do responsibly is advise them on litigation risk 461 00:24:38,140 --> 00:24:40,330 and what their legal rights and responsibilities look like to 462 00:24:40,340 --> 00:24:41,930 me. I should probably rewrite 463 00:24:41,940 --> 00:24:45,460 whatever it is that you read. I'd say it's fair to say that 464 00:24:45,470 --> 00:24:48,600 the cases I like are the ones where the client isn't going to 465 00:24:48,610 --> 00:24:52,560 settle because I'm not a huge fan of negotiation as an 466 00:24:52,570 --> 00:24:55,020 activity. It's not that I'm afraid of 467 00:24:55,030 --> 00:24:57,000 compromise or anything like that. 468 00:24:57,010 --> 00:25:00,360 It's just, it's a completely different skill set from what I 469 00:25:00,370 --> 00:25:02,650 want it to law school for and what I trained for. 470 00:25:03,330 --> 00:25:08,050 And it's, you know, I think Ioffer great value and effective 471 00:25:08,060 --> 00:25:11,550 service and advocacy. Don't know if litigation is the 472 00:25:11,560 --> 00:25:14,450 same deal there. Sorry, don't know negotiation is 473 00:25:14,460 --> 00:25:17,790 the same deal there. And it's yeah, like I got out of 474 00:25:17,800 --> 00:25:20,170 employment law because I hated the mediations. 475 00:25:20,240 --> 00:25:22,810 The mediations were just ungodly repetitive. 476 00:25:22,860 --> 00:25:25,530 No one was really trying to solve the other person's 477 00:25:25,540 --> 00:25:27,050 problem. They were just arguing about a 478 00:25:27,060 --> 00:25:30,530 number and what was probably the least efficient way of doing 479 00:25:30,540 --> 00:25:33,030 that. So I'd say a lot of the times I 480 00:25:33,040 --> 00:25:37,100 have a conversation with my client up front and I say, hey, 481 00:25:37,110 --> 00:25:39,930 what are you looking for here? Do you know you need to go to 482 00:25:39,940 --> 00:25:43,290 court because this is precedent setting for you. 483 00:25:43,610 --> 00:25:46,490 Like I had client who said, I have so many employees, I need 484 00:25:46,570 --> 00:25:50,510 the court order saying that my employment agreement has a valid 485 00:25:50,520 --> 00:25:53,670 termination clause. So I need this like I, I can't 486 00:25:53,680 --> 00:25:55,360 settle with this guy. I have to go to court. 487 00:25:55,370 --> 00:25:58,370 And I have done, it was like, great, I'll do that because that 488 00:25:58,380 --> 00:26:00,090 means we're not going to mediation, We're not going to 489 00:26:00,100 --> 00:26:03,270 this, we're not going to that. I do a lot of work consulting on 490 00:26:03,280 --> 00:26:06,250 things like summary judgments or motions to strike. 491 00:26:06,300 --> 00:26:09,950 And then I'm very upfront with people and I say, look like if 492 00:26:09,960 --> 00:26:11,770 this goes to trial, I'm not your guy. 493 00:26:11,980 --> 00:26:15,050 I'm not going to sit here and watch this case for 3-4 years 494 00:26:15,100 --> 00:26:18,070 and then do a multi with trial. I will help you argue this 495 00:26:18,080 --> 00:26:19,310 motion. I'll put this together. 496 00:26:19,320 --> 00:26:22,250 And as part of that, as it usually happens, the case might 497 00:26:22,260 --> 00:26:25,020 settle. A lot of cases settle on the way 498 00:26:25,030 --> 00:26:28,350 to summary judgment because you get cross examination, you can 499 00:26:28,360 --> 00:26:31,630 get to look at each other's fact and as a result of that, people 500 00:26:31,640 --> 00:26:33,930 get closer together. People start to see the 501 00:26:33,940 --> 00:26:36,340 weaknesses in their own case and that's where something comes 502 00:26:36,350 --> 00:26:38,860 from. But I hate the grind of that. 503 00:26:38,970 --> 00:26:42,460 I don't think a lawyer's job is to, I don't think the plaintiffs 504 00:26:42,470 --> 00:26:44,980 lawyer and the defendants lawyer are supposed to get together, 505 00:26:45,140 --> 00:26:48,100 beat up on their clients, kind of force people into a 506 00:26:48,110 --> 00:26:50,160 settlement. I want to get to court quickly. 507 00:26:50,170 --> 00:26:53,500 I want to get a determination of my clients rights and that's 508 00:26:53,510 --> 00:26:55,200 what I advertise. That's when I saw people 509 00:26:55,290 --> 00:26:58,720 fantastic and. Also, another point here is that 510 00:26:58,730 --> 00:27:01,540 many of our listeners are in law school are starting their first 511 00:27:01,550 --> 00:27:03,940 jobs. So I'm curious to hear from you. 512 00:27:04,010 --> 00:27:07,220 What are some of the habits of skills that you believe that 513 00:27:07,330 --> 00:27:10,440 lost students or early career professionals should be working 514 00:27:10,450 --> 00:27:14,110 on developing as early as possible if they want to succeed 515 00:27:14,160 --> 00:27:17,070 in a palette work or in a more motion heavy? 516 00:27:17,460 --> 00:27:19,040 Practice. Yeah. 517 00:27:19,080 --> 00:27:21,850 I can't say if this is a habit or a skill. 518 00:27:21,860 --> 00:27:25,090 I guess maybe it's a practice. You should go and watch court 519 00:27:25,100 --> 00:27:27,060 cases. Like the courts are open. 520 00:27:27,070 --> 00:27:29,430 That doesn't just mean that like, the public gets to go in. 521 00:27:29,440 --> 00:27:31,740 Our media can send reporters to report on cases. 522 00:27:31,750 --> 00:27:35,760 Like you're allowed to walk into basically any courtroom in 523 00:27:35,770 --> 00:27:38,930 Ontario as a little sign on the door saying, hey, this courtroom 524 00:27:38,940 --> 00:27:41,310 is being ordered closed and you can sit and listen. 525 00:27:41,380 --> 00:27:46,550 So pre COVID, I used to spend a lot of time in Osgood Hall just 526 00:27:46,560 --> 00:27:48,810 watching appeals. And I would go and, you know, 527 00:27:48,820 --> 00:27:50,970 I'd walk across the commercials and I'd watch motions and I'd 528 00:27:50,980 --> 00:27:53,620 watch CPC and be like, OK, this is how lawyers are working. 529 00:27:53,630 --> 00:27:55,160 This is how people are advocating. 530 00:27:55,170 --> 00:27:57,970 And this is the types of questions images are asking is 531 00:27:57,980 --> 00:28:00,310 great. Now post COVID, you don't even 532 00:28:00,320 --> 00:28:03,810 have to leave your apartment. You can just get on Zoom and 533 00:28:03,820 --> 00:28:06,670 watch a lot of these. And you know, if you can't do it 534 00:28:06,680 --> 00:28:10,050 during the day because you're at work, there are a ton of Supreme 535 00:28:10,060 --> 00:28:12,530 Court cases that have been recorded. 536 00:28:12,680 --> 00:28:14,770 So you can listen to those on different websites. 537 00:28:14,780 --> 00:28:20,910 And then in the US, there's a website calledoyaoyez.org Ascent 538 00:28:21,020 --> 00:28:25,130 and it has audio recordings and transcripts for basically every 539 00:28:25,140 --> 00:28:27,750 SCOTUS hearing going back to the 50s or 60s. 540 00:28:27,860 --> 00:28:31,150 So hundreds and hundreds and hundreds of cases argued by some 541 00:28:31,160 --> 00:28:34,290 of the top advocates of their time. 542 00:28:34,300 --> 00:28:37,050 And maybe at any time the law might be different. 543 00:28:37,060 --> 00:28:39,010 You know, we don't have a Second Amendment in Canada. 544 00:28:39,020 --> 00:28:41,980 We don't have a direct equivalent of the 1st, but if 545 00:28:41,990 --> 00:28:45,600 what you're trying to pick up is the skill set of oral advocacy 546 00:28:45,610 --> 00:28:48,860 and particularly the skill set of appellate advocacy, you 547 00:28:48,870 --> 00:28:51,040 really just have to watch people do it. 548 00:28:51,450 --> 00:28:55,520 So yeah, I'd say go find these cases, find the materials, read 549 00:28:55,530 --> 00:28:58,460 them, think about what type of arguments you would make or how 550 00:28:58,470 --> 00:29:01,230 you would have handled submissions and then watch the 551 00:29:01,240 --> 00:29:04,040 actual argument. I've also, I found early on, if 552 00:29:04,050 --> 00:29:06,080 there was an appeal I was interested in, I would just 553 00:29:06,090 --> 00:29:09,600 e-mail the lawyers and say, hey, can I get the the appeal record? 554 00:29:09,610 --> 00:29:11,840 Can I get your factions? Can I talk to you for 10 minutes 555 00:29:11,850 --> 00:29:13,620 about the case because I'm going to come and watch it. 556 00:29:13,630 --> 00:29:16,580 And in Toronto, I say one thing about our bar. 557 00:29:16,590 --> 00:29:19,660 We are super generous. I said some disparaging things 558 00:29:19,670 --> 00:29:23,920 about Ontario lawyers early on, but by and large, we are 559 00:29:24,080 --> 00:29:26,380 incredibly friendly, we're incredibly giving, we're 560 00:29:26,390 --> 00:29:29,630 incredibly supportive. Even, you know, lawyers who 561 00:29:29,640 --> 00:29:33,360 aren't participating in formal mentorship programs, in my 562 00:29:33,370 --> 00:29:36,520 experience, have jumped at the chance to be helpful and passed 563 00:29:36,530 --> 00:29:38,540 things down to like, I'm not going to name names. 564 00:29:38,550 --> 00:29:42,460 But when I just showed up here knowing no one, knowing no job, 565 00:29:42,510 --> 00:29:45,140 no one was like sitting over my shoulder telling me how to do 566 00:29:45,150 --> 00:29:46,800 things. I go on candy. 567 00:29:46,810 --> 00:29:49,180 I'd find a case that was kind of like mine. 568 00:29:49,190 --> 00:29:50,720 I'd look for the lawyer who did it. 569 00:29:50,730 --> 00:29:54,160 And I sent him an e-mail saying, hey, I look at a question about 570 00:29:54,170 --> 00:29:56,910 how you approached it on this. And some of the people I've met 571 00:29:56,920 --> 00:30:00,090 through that 7-8 years ago I'm still friends with and they've 572 00:30:00,100 --> 00:30:01,760 been incredibly helpful in guiding. 573 00:30:01,770 --> 00:30:06,720 So if you don't ask, you don't get Lawyers love, love talking 574 00:30:06,730 --> 00:30:09,030 about their own careers in their own work, which I guess is a 575 00:30:09,040 --> 00:30:13,110 podcast host you've kind of figured out out because here I 576 00:30:13,120 --> 00:30:15,910 am doing just that. But yeah, I think ask people 577 00:30:15,920 --> 00:30:20,030 about their cases, actually read the cases, read the factions, 578 00:30:20,040 --> 00:30:22,890 read the transcripts or listen to the submissions and then read 579 00:30:22,900 --> 00:30:25,510 the decisions and kind of see how it all works together. 580 00:30:25,600 --> 00:30:28,670 And then the other book side of that is, you know, studies all 581 00:30:28,680 --> 00:30:30,450 well and good, but you need to practice. 582 00:30:30,520 --> 00:30:34,330 So get on your feet. There are some changes coming to 583 00:30:34,340 --> 00:30:37,070 the rules of Civil Procedure, which I really, really love. 584 00:30:37,140 --> 00:30:39,340 There are some that are being discussed which I think are 585 00:30:39,350 --> 00:30:42,810 going to have the unfortunate effect of limiting opportunities 586 00:30:42,880 --> 00:30:45,650 for younger lawyers to get practical experience. 587 00:30:45,720 --> 00:30:48,130 So, you know, they're talking about eliminating oral 588 00:30:48,140 --> 00:30:50,750 discovery. Oral discovery is the safest 589 00:30:50,820 --> 00:30:54,040 place for a young lawyer to practice asking questions. 590 00:30:54,090 --> 00:30:57,940 That's going to go away. So is a senior lawyer now gonna 591 00:30:57,950 --> 00:31:01,640 give a junior opportunities on cross examination where a 592 00:31:01,650 --> 00:31:03,780 mistake could actually be detrimental to the client? 593 00:31:03,870 --> 00:31:08,220 Maybe, maybe not. If we get rid of motions courts, 594 00:31:08,230 --> 00:31:12,600 if we get rid of easy access to pleadings motions where the 595 00:31:12,610 --> 00:31:16,000 stakes might be lower, how are junior council going to get 596 00:31:16,010 --> 00:31:17,430 their hands on things? Right? 597 00:31:17,510 --> 00:31:21,160 So the Court of Appeal has been very good and they are public 598 00:31:21,170 --> 00:31:24,840 about this and they encourage council to give juniors an 599 00:31:24,850 --> 00:31:26,990 opportunity. They say come on in, split your 600 00:31:27,000 --> 00:31:29,520 arguments if 3 council are listed on the fact. 601 00:31:29,530 --> 00:31:31,400 And we'd love to hear from all three council. 602 00:31:31,810 --> 00:31:35,110 And the kind of wink, wink, nudge, nudge is we're not going 603 00:31:35,120 --> 00:31:39,010 to punish you or your clients if you're associate messes up. 604 00:31:39,320 --> 00:31:42,210 So I have a lot of respect for lawyers who give their 605 00:31:42,220 --> 00:31:45,290 associates an opportunity to speak anytime in court. 606 00:31:45,600 --> 00:31:49,330 And as juniors, I think you guys should have not an expectation 607 00:31:49,640 --> 00:31:52,050 that you'll speak because you're not entitled to it. 608 00:31:52,060 --> 00:31:54,290 You're not Oded. But if you get through or if 609 00:31:54,300 --> 00:31:57,110 you're working for a barrister and you get through your entire 610 00:31:57,160 --> 00:32:00,240 article in term and you haven't had a chance to make any kinds 611 00:32:00,250 --> 00:32:03,190 of submissions, she's not doing with favor. 612 00:32:03,320 --> 00:32:06,870 And I do say she there because my, in my experience, female 613 00:32:06,880 --> 00:32:10,330 principals are much better about getting their juniors up there. 614 00:32:10,790 --> 00:32:13,530 So yeah, you're, you're not a slave. 615 00:32:13,540 --> 00:32:16,890 You're not a paperwork Monday. You are there to be taught. 616 00:32:17,440 --> 00:32:20,170 You know, part of teaching is giving you opportunities to get 617 00:32:20,180 --> 00:32:22,190 on your feet. So get on your feet early, get 618 00:32:22,200 --> 00:32:25,890 on your feet often, even if it's not your exact practice area, 619 00:32:25,900 --> 00:32:31,090 even if it's not a big sexy issue, if it's a $5000 small 620 00:32:31,100 --> 00:32:33,740 claims case that you could do for your, you know, aunts, 621 00:32:33,750 --> 00:32:36,070 neighbor's son and your firm will let you do it. 622 00:32:36,080 --> 00:32:38,450 And we'll give you a chance to practice and hard skills. 623 00:32:38,460 --> 00:32:39,930 Do it. Great advice. 624 00:32:39,980 --> 00:32:43,350 So to wrap up today's episode, I wanted to ask you, you've 625 00:32:43,360 --> 00:32:47,580 mentioned that you have a very interesting hobby and that is 626 00:32:47,590 --> 00:32:49,980 wood turning. And I wanted you to hear a 627 00:32:49,990 --> 00:32:53,500 little bit about that. I wanted to hear specifically if 628 00:32:53,510 --> 00:32:57,620 you think that having a hobby outside of your career entirely, 629 00:32:57,670 --> 00:33:01,300 if that plays a role in, you know, keeping you motivated and 630 00:33:01,310 --> 00:33:03,890 and keeping you healthy and all of that. 631 00:33:04,150 --> 00:33:07,570 And if betting anyway has shaped your career or or is that 632 00:33:07,580 --> 00:33:10,780 something that you highly recommend of young lawyers to to 633 00:33:10,790 --> 00:33:13,520 keep in mind? OK, yeah, a lot to unpack there. 634 00:33:13,730 --> 00:33:16,320 Feel free to hit the buzzer if we actually run out of time. 635 00:33:16,470 --> 00:33:19,020 The first thing I'll say is the reason to have a hobby and 636 00:33:19,030 --> 00:33:20,560 invest in it is because you enjoy it. 637 00:33:20,910 --> 00:33:22,320 There's no other. That's why they're called 638 00:33:22,330 --> 00:33:23,240 hobbies. They're not chores. 639 00:33:23,310 --> 00:33:25,940 So yeah, I I wouldn't turn because I absolutely love it. 640 00:33:25,950 --> 00:33:29,720 Like it's meditation for me. Having a Bobby outside of law 641 00:33:29,850 --> 00:33:32,760 can be beneficial for a few different reasons. 642 00:33:32,850 --> 00:33:36,850 The first, I'd say is the dinner party scenario, though sometimes 643 00:33:36,860 --> 00:33:40,080 you don't want to be talking about your work as a litigator 644 00:33:40,130 --> 00:33:43,510 or sometimes your spouse doesn't want you to be talking about 645 00:33:43,520 --> 00:33:46,220 your work as a litigator. So sometimes it's great that 646 00:33:46,230 --> 00:33:48,400 when you meet someone for the first time and they say, hey, 647 00:33:48,410 --> 00:33:50,470 what do you do? You don't be like, well, I'm a 648 00:33:50,480 --> 00:33:52,640 commercial litigator who specializes in shareholder 649 00:33:52,650 --> 00:33:55,490 disputes. You can say I do a lot, but you 650 00:33:55,500 --> 00:33:56,960 know what I was doing this afternoon? 651 00:33:56,970 --> 00:33:59,920 I was woodturning A vase. That's gonna be a gift for a 652 00:33:59,930 --> 00:34:01,120 friend. And I'm doing all these cool 653 00:34:01,130 --> 00:34:04,220 different techniques on it. So it gives you an excuse 654 00:34:04,270 --> 00:34:06,030 sometimes to talk about something other than your 655 00:34:06,040 --> 00:34:07,960 career, which is lawyers is valuable. 656 00:34:08,010 --> 00:34:13,400 More than that, it gives you or forces you to spend time with 657 00:34:13,409 --> 00:34:17,030 non lawyers and talk about non lawyer things with what I'll 658 00:34:17,040 --> 00:34:20,280 call real people. Because if you spend all day 659 00:34:20,290 --> 00:34:23,900 every day only talking to other lawyers and especially only 660 00:34:23,909 --> 00:34:26,639 other litigators, you might just go insane. 661 00:34:26,810 --> 00:34:31,719 We are not normal people. We don't approach life in a way 662 00:34:31,730 --> 00:34:35,480 that would be recognizable to 99% of the population. 663 00:34:35,550 --> 00:34:38,840 We walk around and we're like, that store needs to move that 664 00:34:38,850 --> 00:34:41,020 extension cable or someone's going to trip and they're going 665 00:34:41,030 --> 00:34:42,980 to get suited. And how would the the owners 666 00:34:42,989 --> 00:34:45,460 occupiers insurance respond to that? 667 00:34:45,469 --> 00:34:47,800 And is the city property Like who's responsible? 668 00:34:47,810 --> 00:34:51,260 Oh my God, Oh my God, Oh my God. Every insult is defamation, 669 00:34:51,270 --> 00:34:54,600 everything just you jump to a legal conclusion first. 670 00:34:54,719 --> 00:34:56,949 Normal people just like, oh, they should probably move that. 671 00:34:57,070 --> 00:34:58,850 They should move that extension cord. 672 00:34:58,860 --> 00:35:00,790 Maybe I'll move it forward them so no one gets hurt. 673 00:35:00,800 --> 00:35:04,610 And As for the effect on your career, I have gotten some of my 674 00:35:04,620 --> 00:35:07,950 most interesting cases from people I met through my hobbies. 675 00:35:08,100 --> 00:35:11,130 I think especially young lawyers, there's kind of an 676 00:35:11,180 --> 00:35:16,090 unhealthy, unrealistic version of legal marketing and how 677 00:35:16,100 --> 00:35:18,890 clients hire lawyers, which is you have to be the best. 678 00:35:18,900 --> 00:35:23,170 You have to be known for being aggressive and fighting for this 679 00:35:23,180 --> 00:35:25,610 and fighting for that and you have to get all these chambers 680 00:35:25,620 --> 00:35:29,650 awards and whatever the truth is, lawyers care about that 681 00:35:29,660 --> 00:35:31,510 stuff. Why I'm saying my experience do 682 00:35:31,520 --> 00:35:35,840 not clients are going to pick a lawyer who they know or who 683 00:35:35,850 --> 00:35:38,540 their friends know and who they kind of trust, don't hate 684 00:35:38,550 --> 00:35:40,860 spending time with. They're going to assume you are 685 00:35:40,870 --> 00:35:42,880 competent. That's one of the best things 686 00:35:42,890 --> 00:35:46,170 about being a lawyer is your client based until proven 687 00:35:46,180 --> 00:35:48,780 otherwise, it's just going to assume that you know what you're 688 00:35:48,790 --> 00:35:49,960 doing. So you don't need to convince 689 00:35:49,970 --> 00:35:52,030 them of that. Every single lawyer is assumed 690 00:35:52,040 --> 00:35:54,000 to know what they're doing. Don't argue about your 691 00:35:54,010 --> 00:35:55,500 competence. Don't argue about what a great 692 00:35:55,510 --> 00:35:57,810 job you're going to do. Show them the other ways that 693 00:35:57,820 --> 00:35:59,980 you're going to add value and you're going to help them make 694 00:35:59,990 --> 00:36:03,360 them like you. So I have clients now who 695 00:36:03,420 --> 00:36:05,210 really, I never spoke to them about what I did. 696 00:36:05,220 --> 00:36:07,060 They knew it was a lawyer. They knew I was a litigator. 697 00:36:07,070 --> 00:36:09,840 All of our conversations were about shared interests and 698 00:36:09,850 --> 00:36:11,900 hobbies. And I didn't know what they did. 699 00:36:12,050 --> 00:36:15,100 And then they might come to me after a year of knowing them and 700 00:36:15,110 --> 00:36:17,200 say something like, hey, Gabe, I don't know if I've mentioned 701 00:36:17,210 --> 00:36:20,180 this before, but I own this company and we just got 702 00:36:20,190 --> 00:36:22,090 absolutely shafted. I have vendor. 703 00:36:22,100 --> 00:36:24,050 This is what you do, right? You're this time a lawyer. 704 00:36:24,120 --> 00:36:26,040 And that wouldn't have happened if I'd walked up to them and 705 00:36:26,050 --> 00:36:27,990 said, hi, I'm Gabe. I hope I can help you with any 706 00:36:28,000 --> 00:36:30,860 of your your legal issues. Let's not talk about our hobby. 707 00:36:30,870 --> 00:36:33,390 Let's talk about how you can be useful to me and how you can 708 00:36:33,400 --> 00:36:34,830 become my client and give me money. 709 00:36:35,100 --> 00:36:36,690 Anything that broadens your network. 710 00:36:36,700 --> 00:36:37,900 Yeah. The end of the day that might 711 00:36:37,910 --> 00:36:41,270 improve your practice. The last thing I want to say 712 00:36:41,280 --> 00:36:45,640 though, is we live in a very interesting time where people, 713 00:36:45,650 --> 00:36:49,230 especially younger people, are being bombarded with messages 714 00:36:49,240 --> 00:36:52,080 about what they're life should look like and a work life 715 00:36:52,090 --> 00:36:53,890 balance. And you look on your friends and 716 00:36:53,900 --> 00:36:56,230 you see them taking all these vacations on Instagram. 717 00:36:56,240 --> 00:37:00,050 And everyone you look at is not just a lawyer, but a 1 Turner, 718 00:37:00,060 --> 00:37:04,390 an Olympic fencer or a classically trained cellist or 719 00:37:04,400 --> 00:37:07,980 some super chess prodigy person who goes and plays against the 720 00:37:07,990 --> 00:37:09,460 robots. And he's like, well, all I'm 721 00:37:09,470 --> 00:37:12,300 doing is holding down my job and that's all I can do. 722 00:37:12,530 --> 00:37:15,860 And that's OK. Not everyone has the time or 723 00:37:15,870 --> 00:37:18,420 interest in a hobby. And work can be your hobby. 724 00:37:18,430 --> 00:37:20,480 TV can be your hobby, books can be your hobby. 725 00:37:20,490 --> 00:37:24,030 You don't have to have some special other thing that you're 726 00:37:24,040 --> 00:37:26,440 great at. Like I'm not great at wintering. 727 00:37:26,450 --> 00:37:30,420 I just enjoy it and that's OK. You don't have to be good at 728 00:37:30,430 --> 00:37:32,700 something to enjoy it. And it doesn't have to be 729 00:37:32,710 --> 00:37:34,780 something that's going to turn into a side hustle. 730 00:37:34,790 --> 00:37:37,460 It doesn't have to be something that your clients are going to 731 00:37:37,470 --> 00:37:41,460 be super impressed by. And for a lot of people, I'd 732 00:37:41,470 --> 00:37:44,770 say, especially in their late 20s and 30s, your hobby might be 733 00:37:44,780 --> 00:37:47,240 your family. I don't have children, so I have 734 00:37:47,250 --> 00:37:50,210 lots of time to go do other interesting things that I 735 00:37:50,220 --> 00:37:52,670 enjoyed. But if you have kids, you know, 736 00:37:52,680 --> 00:37:55,610 I, I know a guy who spent basically a decade getting up at 737 00:37:55,620 --> 00:37:58,230 7, getting back from work at 6:00 PM. 738 00:37:58,240 --> 00:38:01,280 He'd spend 3 hours with his kids, maybe spend an hour with 739 00:38:01,290 --> 00:38:03,910 his wife and he'd go to bed and get up and do it all over again. 740 00:38:03,970 --> 00:38:07,570 And once every three or four months, he'd have a free day on 741 00:38:07,580 --> 00:38:09,950 a weekend that I also had a free day and we'd get together and 742 00:38:09,960 --> 00:38:12,390 have lunch and I'd be super grateful for his time. 743 00:38:12,480 --> 00:38:15,920 Because you know, when you have young kids, they're going to 744 00:38:15,930 --> 00:38:18,810 come first. So the message of you got to 745 00:38:18,820 --> 00:38:22,040 have a career that you love and you're really successful at and 746 00:38:22,050 --> 00:38:25,230 you have to have a family and on top of that, you have to have a 747 00:38:25,240 --> 00:38:26,990 hobby. I think that's pretty harmful 748 00:38:27,000 --> 00:38:30,330 messaging for a lot of people. A hobby shouldn't be something 749 00:38:30,340 --> 00:38:33,450 that's, you know, obligation or something that you dread or 750 00:38:33,460 --> 00:38:36,110 something that you're doing because people have told you you 751 00:38:36,120 --> 00:38:38,510 should do it. It would be something that 752 00:38:38,520 --> 00:38:40,340 generally you enjoy and makes your life better. 753 00:38:40,350 --> 00:38:42,990 And I'll single out one hobby or joggers. 754 00:38:43,000 --> 00:38:46,150 No one likes jogging. If you're a marathon runner or 755 00:38:46,160 --> 00:38:48,850 something like that, cool. But if you're a hobby, is that a 756 00:38:48,860 --> 00:38:51,170 jog for 45 minutes a day? That's not a hobby. 757 00:38:51,260 --> 00:38:52,870 That's an exercise your team. That's cool. 758 00:38:52,880 --> 00:38:56,170 But like, that's not a hobby. And you shouldn't make jogging 759 00:38:56,180 --> 00:38:58,480 that your entire personality because it's incredibly 760 00:38:58,490 --> 00:39:01,350 annoying. But exercise is important. 761 00:39:01,360 --> 00:39:04,270 Sleep is important. Too many lawyers sacrifice that. 762 00:39:04,280 --> 00:39:06,830 And when you're starting out, it's easy because you're used to 763 00:39:06,840 --> 00:39:10,050 pulling all nighters in college. By the time you're 10 years out, 764 00:39:10,060 --> 00:39:14,330 you will be able to look at your peers and tell very easily which 765 00:39:14,340 --> 00:39:18,230 ones are regularly functioning on less than six hours of sleep 766 00:39:18,240 --> 00:39:21,120 a night and which ones only get exercised when they're walking 767 00:39:21,130 --> 00:39:22,430 from the elevator to their desks. 768 00:39:22,440 --> 00:39:25,930 And you don't want that to beat you because it catches up 769 00:39:25,940 --> 00:39:28,790 really, really quick. So hobbies are great. 770 00:39:28,800 --> 00:39:31,450 If the hobby can be something that gives you exercise, even 771 00:39:31,460 --> 00:39:35,030 better. But the mentality of you have to 772 00:39:35,040 --> 00:39:37,730 have some super cool, interesting, fulfilling hobby 773 00:39:37,740 --> 00:39:39,710 outside of work, we have to kill them. 774 00:39:39,780 --> 00:39:43,200 Wow, that was so good. I think it's, it's always 775 00:39:43,210 --> 00:39:47,100 amazing when the, when we have truth, truthful encouragement, 776 00:39:47,170 --> 00:39:50,260 which is not just encouraging people to do something for the 777 00:39:50,270 --> 00:39:52,000 sake of it. But I just really love the 778 00:39:52,010 --> 00:39:54,640 reasoning you put behind that. Maybe that comes from you being 779 00:39:54,650 --> 00:39:57,780 a really good litigator, but that, that point was just one 780 00:39:57,790 --> 00:39:59,840 that, that I, that I really appreciate. 781 00:40:00,130 --> 00:40:03,360 It's hard to feel guilt for not doing something that you don't 782 00:40:03,370 --> 00:40:06,280 even know if you enjoy. So I really like that, that you 783 00:40:06,290 --> 00:40:08,380 brought that up. And I hope that will inspire 784 00:40:08,390 --> 00:40:10,960 some people as well as they choose their priorities and, and 785 00:40:10,970 --> 00:40:12,840 go forward in their, their career. 786 00:40:12,910 --> 00:40:15,580 Well, thank you so much for taking the time to chat today, 787 00:40:15,630 --> 00:40:18,720 Deborah, and putting up all of these, these thoughts together 788 00:40:18,730 --> 00:40:21,580 from, you know, appellate litigation to hobbies and 789 00:40:21,590 --> 00:40:23,810 day-to-day life. Really appreciate you taking the 790 00:40:23,820 --> 00:40:24,880 time. My pleasure.