Last Word

Three Decades in Private Practice, So Far

Work less, think more

It is a privilege to be paid to think for a living. “Lawyers should work less and think more,” was a saying of my late senior partner.  Thinking and good judgment, just as character, are not qualities that necessarily come with a law degree.  They are slowly built, over time, and time is something that is in ever diminishing supply.

My voice became untied

I was not summoned to become a lawyer. I did not embark on a legal career with anything resembling a cause, a passion, a sense of calling.  I went into law because of a writer’s block.  If I could not write, at least I should do something worthwhile with my life, something that would consume the hours like fire to human hair, make the writing impossible. But no sooner did I begin to study law, then the tongue became untied.  I began to appreciate that my voice could be found, if at all, in giving voice to those I served, who otherwise might not be able to tell their own story – which is the essence of advocacy, the root of the Latin vocare: advocare – to speak for another.

For example

  • a mother’s voice, speaking the words of her child, in fear, putting that before a Judge in a way that the Judge could hear the mother’s pain, safeguard the child in need of protection.
  • collaborating with a client in the work of sifting through sixty bankers’ boxes of documents to find the key to his case: “Here’s what you are looking for, a solicitor’s reporting letter to you, not your now bankrupt company,” in a solicitor’s negligence case.
  • collaborating with opposing counsel in putting a husband and wife back in bed together (so to speak) through a shareholders’ agreement, so that a contest over the value of the golf course costing hundreds of thousands of dollars could be avoided, so that they equally participate upon the actual sale.
  • and the thinking, thinking beyond the details and documents that multiply like the proverbial sands of Arabia, that always threaten to bury and to blind.
  • and not ever losing the care and compassion for the individuals caught in the vortex of their human dramas and conflicts.
  • because if it is worth doing at all, performing whatever legal services you provide, it is because somewhere deep down, in embracing this profession, you recognize you are repaying a debt you owe to other human beings, call it society, for the privilege of being paid to think for a living.

What to say to young lawyers starting out?

Times and the context in which lawyers practise today are vastly different than the profession that consumed my early years.  I had the benefit of wonderful mentors and time. My articles were in a firm which offered a rotation. I wasn’t forced out on my own.  I benefitted from watching and listening.  Which is still available to young lawyers, as it is to members of the public.

Mentoring

This past summer, I took on a young university student, the child of a former client, my first abuse case, where I had cut my teeth on a legal aid certificate.  The young lady volunteered to shadow me.  As I had left my practice in downtown Toronto, severed the cords and expensive resources of articling students, accounting department, clerks, I was able to work pro bono on an abuse case, courtesy of my greatly reduced overheads, and with the help of this intelligent young woman.  This past year has been an eye opener.  Just as younger women had been my mentors in guiding me into the profession, younger women were now my mentors in how it is done, solo, these days, how you begin building the relationships that lead to the clients, how young lawyers create themselves.

Lack of deference

We are in an age where there is no deference, where the internet has led many to believe they can be their own lawyers, where the speed of everything has increased to such a pace that it is almost impossible to think, let alone to think clearly.

We walk clients out of the shadows of their darkest valleys

Where I entered the profession, not wanting to be the starving artist, now lawyers, at the outset, are starving artists, who must be willing and able to work for next to nothing, with commitment and without any certainty of getting paid for the time and services they provide.  What will set them apart will be their ability to think – to think creatively and collaboratively with their clients and other counsel in seeking solutions from which all can benefit.   This will require a shift in thinking, outside the paradigm of winners and losers; it will require real thinking, not artificial intelligence.  What is the value of the service lawyers provide? The value of our working lives?  We must measure it by the human steps we take alongside the clients we help walk out of the shadows of their darkest valleys.

That’s what I do, daily, walk alongside a client and walk them out of their darkest valley. I make a difference. So can you.

Thank you: Darlene Madott (Darlene Madott Professional Corporation, Toronto),
madott@dmfamilylaw.netwww.darlenemadott.com

Posted: Wednesday, November 28, 2018

Last Word

Are Hockey Tickets (Including Playoffs) Matrimony Property? This is Canada, After All

If the Edmonton Oilers are fighting hard for the Cup/Playoffs, shouldn’t their litigant fans do the same?

See McLeod v McLeod, 2017 ABQB 581.

Q: Are “Oilers seasons tickets…property” (for the purposes of the Alberta Matrimonial Property Act?

A: Yes (paras. 5-9).

And: “[w]hether that is the actual possession of the tickets, the control of the Oilers Account, or the ‘right’ to purchase the tickets…”.

Held: “These tickets…fall within the definition of household goods”. “The parties shall alternate choices for game tickets…until all regular season tickets have been assigned.” (paras.  9 and 25 respectively).

But what if the Oilers make the Play-offs?

“In the event there are playoff tickets, the Plaintiff shall choose her game first, the Defendant second, and alternating thereafter (para.25)

No word on whether the Plaintiff passed on any games against the Maple Leafs however.

(Lori Johnson, Q.C., of Johnson Turner Lefaivre, for the Plaintiff; Dale Tumbach, of TC Family Law Group, for the Defendant; Madame Justice Ritu Khullar, Alberta Court of Queen’s Bench).

Posted: Wednesday, March 14, 2018

Last Word

Lawyering & Management Consulting – Top Ten Opportunities for Fun (& Profit)

I graduated law school 39 years ago and I am still having fun. Having worked as a lawyer and as a management consultant, ten principles of practice have persistently resonated in my day to day work. I wish I had known them when I started. They would have made both lawyering and management consulting even more fun and profitable.

  1. The practice of law and management consulting should be focussed on Low Efforts for High Results. This is completely contrary to what I thought when I graduated law school! But it’s true. I eventually learned that what I did naturally could be easy and profitable. I enjoyed it and I received good if not outstanding results. When I took on something at which I had to work extraordinarily hard and put in super human efforts, I could still get good results but I was exhausted and uninspired to take on any more. I was driven more by ego than by common sense. This principle was taught to me by an old friend and successful business author with a Harvard MBA. It seemed so counterintuitive, until I yielded. I knew it was working when repeat business started to flow because of both client satisfaction and my obvious enthusiasm for what I was doing.

2. Inspire trust. Actually walk the talk. There are lots of talkers out there but many fewer walkers. Clients came with problems for me to solve. That was my job. Too much talking could get me into trouble. On the other hand I never had an issue when I actually delivered what I said I was going to deliver. And part of that was understanding really what the client wanted. Extra time taken to diagnose the problem and fully grasp what the client expected paid off when the time came to deliver the invoice and the product. That built trust for me. Deadlines met were opportunities.

3. The customer (client) actually is always right. Lawyers are smart, and many times perhaps too smart, but the client calls the shots on our advice. As part of the rule about inspiring trust, walking the talk is important. Listening to the client instead of talking is a close second place. The more I have listened the more I have learned what the client “really” wanted, not what I thought he should have.

4. Choose between things and people. My late and very wise father (not a lawyer) told me I should choose between working with things or working with people. Which did I like better? Some lawyers are better with things they learn in the library while others are better with people they meet for coffee. I do what is easiest for me.

5. Change is inevitable. We practice it when we persuade and I learned that no change is possible if any of the values in this equation equals zero:
C = D x V x F > R
Change equals Dissatisfaction * Vision * First Steps that is greater than the Resistance. It is the empirical formulation of the lightbulb joke: How many psychiatrists does it take to change a lightbulb? Only one but the lightbulb really has to want to change. Change occurs only in response to a “felt need to change”.

6. Be an interesting person, not just a good lawyer. Save the “war stories” for other lawyers. No one (who isn’t a lawyer) wants to know about the intricacies of an Anton Piller order, shocking though they may be. I like to think that I was a pretty interesting person before I went to law school. Clients relate to stories that they can understand and that resonate with them.

7. Determination matters. It matters more than intelligence. There are hundreds of smarter lawyers out there, but the client is seated in front of you. One of my partners told me early on that 90% of success is simply showing up. The secret is simple. Show up every day and give the client what the client wants. And they usually want to be heard. I learned that many (but not all) clients ironically, cared more about me listening to them then about the actual result or work.

8. Marketing is essential. The First Rule of Marketing is that if you do not market you will not get clients or files. The Second and equally important rule is that the work will not come from the people to whom you market. I do not know how this works but it is unfailingly true. Do no marketing and nothing will happen. Market and something will happen, but the universe teaches us humility because the work comes from a client or source to whom we did not market. We must sow seeds for there to be growth but we should not presume that we have the right to harvest exactly where we planted.

9. You are Number One. Look after your own best interests. Other than your parents, likely no one cares about you except yourself. Don’t worry what other people are thinking about you because they probably are not. They are thinking about themselves. You are responsible and accountable to yourself.

10. Have fun – Low Efforts gets High Results. After 37 years in the practice of law and management consulting, the thing that drove me and still drives me is the curiosity and wonder I have in what clients say, the problems they pose and the opportunity to solve the problems for them. Clients want our help and they want to know that we are happy to be part of what they are doing. There is no better way to close a deal with the client than to say, “This looks like it is going to be a lot of fun. It is going to be great”. It’s infectious and engaging. If it isn’t fun anymore, why do it?

Thank you: Jeremy Hill (THSG, Ottawa), jeremy.hill@thsg.ca

Posted: Wednesday, March 07, 2018

Last Word

Miracle Day: Living Life Large

Eugene, when I picked up the phone on January 21, 2014 I had no idea my life was about to undergo a radical change. Here I was in London:

  • with a wonderful family,
  • a great career at Western Law,
  • still playing hockey at age 57.

I felt I was making a difference as a member of the CBA’s Access to Justice Committee, among many other legal and extra-legal pursuits.

The call was from my doctor. I had a liver tumour 7 cm in diameter. And I needed a liver transplant.

In March, the hospital did a workup to ensure I was eligible for transplant. I passed in every way – except one. The tumour had grown to 12 cm, too large for transplant. Now I had to face my mortality, and the possibility I may not live to see my grandchildren—maybe not even see Christmas.

Having lost my first wife to liver cancer in 2001, telling my young adult children that their father too might not be there for them was one of the hardest things I’ve ever had to do. In the meantime, keeping things normal and routine helped keep my emotions in check.

One option remained open: a chemo treatment that involved injecting chemo directly into the tumour. After two treatments, a CT scan in August 2014 showed the tumour had shrunk and much of it was dead. I was placed on the transplant waiting list the following month. For the first time in six months, I felt some hope.

I had no visible symptoms, and continued working full time until a Monday afternoon on November 24, 2014. The phone rang in my office. I could see from the extension that it was from University Hospital. They had a liver. I felt both relief and trepidation coursing through my body.

The next day, I said goodbye to my wife Laurie as I was wheeled into surgery. I didn’t know how close it was to being our final goodbye.

Several hours later, the doctors told my family that the transplant had failed on the table due to clotting, something they had never seen before. They needed a second organ donor—within 24 hours.

Needless to say, that doesn’t happen, nor did it happen in my case. My family lived in the ICU waiting room. Time passed – 48, 72, 96 hours. At that point Laurie had to face the inevitable and start thinking about funeral arrangements.

On the morning of the fourth day my daughter (name, age) awoke in the ICU waiting room and announced “today will be miracle day”.

That’s when the miracle happened. A second liver became available later that day, and was transplanted in the early morning hours of the fifth day, November 30. My family calls that day “Miracle Day.”

I was placed in an induced coma for 10 days. When I awoke, I had lost my core muscle strength. I couldn’t even sit up, let alone walk. Through gentle cajoling by my physiotherapists, I gradually regained some strength. I was released from hospital in late January 2015 after I was able to navigate one flight of stairs.

I attended my first social event in February when I still relied on a walker. I returned to work part time in April 2015, and full time in June. In August, I made my first ever hole-in-one (which is another miracle, given my utter lack of talent). By January 2016 I was back to playing hockey once again.

I’m now living a normal life, working full time, travelling, and enjoying sports. But my life has changed. When you face death and survive, you tend to live life large. That’s what I have done. I am busier than ever, and travel whenever I can. My bucket list is to visit all seven continents. I have two more to go.

I had no idea what a powerful emotion gratitude is until I became an organ recipient. I cannot imagine what my donor families went through when making the difficult decision to donate the organs of their loved ones. Their kindness has allowed me to live to see my first grandchild, who was born in November. I am forever grateful to them.

To pay back the gift I have received, I have become a passionate advocate for organ donation, and was appointed to the board of the Trillium Gift of Life Network, which operates the transplant system in Ontario.

My gift of life has also allowed me to pursue my other passion, access to justice. I was soon back at it, rejoining the CBA Access to Justice Committee. In December 2016 I appeared before the House of Commons Justice Committee, which was carrying out a study on legal aid. On behalf of the CBA, I made submissions on reforming the funding of civil legal aid, many of which were adopted by the Justice Committee in its recent report.

Hey, a final word on organ donation:

  • did you know Ontario no longer uses donor cards?
  • you can save up to eight lives by registering to donate your organs.
  • go to beadonor.ca to register, and tell your family about your wishes.

Thank you.”


Doug, Eugene here; I registered yesterday. Told Giovanna and the kids. Giovanna says:

  • will the donee speak like you?
  • are they obliged to wear a kilt and cycle to work (not at the same time)?

Thank you: Doug Ferguson, University of Western Ontario, dfergus@uwo.ca

Posted: Wednesday, February 21, 2018

Last Word

Top Ten Thoughts from a Criminal and Civil Lawyer After 43 Years in the Profession

After almost 43 years of practice doing criminal and civil litigation, I’ve been around the block a few times. What have I learned? Maybe some experiences and lessons learned will be helpful to colleagues just starting out (and maybe even to others still going around the block). Here are 10 thoughts.

Check Your Ego At The Door

It’s not about you. The client wants a committed lawyer to represent him or her, not a prima donna (henceforth, I use him or her interchangeably to save on words).

Communication is Key

Speaking of clients, your clients will likely give you more headaches and grief than opposing lawyers. Make sure you communicate thoroughly with your clients ensuring that they understand what you are talking about. Confirm important discussions in writing and in English, or whatever, not legalese. Avoid fancy words like “henceforth”.

Ask Questions

I know lawyers are supposed to appear powerful, invincible and know it all—but it ain’t so. Don’t spend hours trying to reinvent the wheel. Very often you can just telephone government officials at a court office to get instant info on how to proceed, saving you from scratching your head trying to understand the Rules of Practice. Most staff are very kind and free with this information. Similarly most colleagues are also only too happy to mentor you through a problem. I guess this goes back to the ego at the door thing.

Ask Specifically For What You Want

Generally, judges, lawyers, clients and other mortals are not mind readers. Notwithstanding what many lawyers think, they do not possess the mental qualities of the Amazing Kreskin. Preface your goal up front, like in, “I want a restraining order”, “I suggest a settlement meeting”, or “I want more money”, (and with clients, avoid words like, “notwithstanding”).

Dangers of Using Emails

Speaking of communication, beware of the dangers of using emails. One such danger is addressing the wrong recipient. Woe is you if you mean to send a vital email to your client Paul Rosenberg and you key in “Paul” and you don’t realize your computer sent that message to Paul Williams, opposing counsel. Do that a couple of times and you may have to consider another line of work after a rendez vous with LAWPRO.

Use the Phone More Often

Alexander Graham Bell’s invention still works well, regardless whether he actually invented the phone in Brantford, Badeck, or Boston. A phone conversation is much more personal and it will allow you to sound out the other party and maybe hear body language. It will also avoid the problem of addressing the wrong Paul.

Don’t Dabble in Unknown Areas of the Law

I know business might be slow at times but generally speaking, taking on a criminal case if you are a commercial lawyer is courting potential disaster. Would you want your ophthalmologist to do your next colonoscopy? I thought so.

Always Be Civil

Never insult the other lawyer or her client. In 43 + years of practice I never yet heard of a case of a lawyer saying, “You are a total idiot and your client is an ass,” and lawyer B responds, “You know. I’ve been thinking about that and I agree. Here’s my chequebook.” As Mark Twain once said, “Always do the right thing. It will gratify most people and amaze the rest”.

Unleash Your Sense of Humour

This does not mean ridiculing people. It means allowing yourself to see the humourous side in imperfect situations such as traffic, inclement weather or dealing with companies that say, “Your call is important to us”. This attitude will create rapport, even with lawyer B. It will also help preserve your sanity.

Get a Life

I mean take breaks, lunch, mid-day walks and vacations. And when you take a vacation, take a vacation, meaning no email etc. checking. Paul can wait.

Have a Passion Outside of the Law

Whatever excites you, do whatever feels right. There has to be something. Mine has always been writing. (Some people even like golf. My views on that would be the subject matter of another article.)

You will notice I listed 11 suggestions, not 10. I guess you might add to the list: Always try to deliver more than you promise.”

Thank you: Marcel Strigberger (retired lawyer and author), marcel@marcelshumour.com, www.marcelshumour.com

Posted: Wednesday, January 31, 2018

Last Word

Reflections of a Lawyer’s First Visit to the SCC

“Eugene,

Just a few short weeks ago I attended my first live hearing at the Supreme Court of Canada  and it was incredible. Thought I would share a few thoughts with you and your readers.

A Personal Connection

As a lawyer I have been reading the Supreme Court jurists’ decisions for years. Their varied approaches to legal analysis very rightly have influenced my professional skills and knowledge. Due to this fact I felt somewhat of a personal connection to these jurists. They are continually working to help inform and guide the Canadian democratic community. I was especially pleased to see Chief Justice Beverley McLachlin “in action” prior to her retirement. It was a unique honour.

Diversity

It was also an honour to see such diverse perspectives represented at “The Court! La Cour!” on November 30th and December 1st by counsel for the parties and including many interveners. The cases being heard were Trinity Western University, et al. v. Law Society of Upper Canada and Law Society of British Columbia v. Trinity Western University, et al. As these cases made their way through the lower courts of British Columbia and Ontario, the myriad of issues they represent have stirred strong feelings, passion, and interest in many facets of our society. For this reason, it was not surprising that the SCC courtroom itself was packed, as was the overflow seating in the atrium and the Federal Court rooms in the SCC’s building.

Over the intense two-day hearing I met a variety of people who were attending to support their counsel, spouses, partners, friends, colleagues, and fond acquaintances. I was there supporting my spouse, so it was wonderful to find this common ground. It was also wonderful to find that everyone I met was personally invested in the case and legitimately concerned about what Canada’s top court’s jurists’ ruling will mean for our democracy.

Passion

Not surprisingly, the submissions to the Court were also very personal. It was clear that all 70+ counsel felt that they were advocating for an abundantly important cause. It was amazing to experience such impassioned, yet measured, advocacy. The varied arguments and submissions of the counsel obviously resonated with the spectators and Court, as was evidenced by nods, smiles, scowls, approving or disgusted looks to one’s peers, and laughter at appropriate times. Obvious passion about the content of the case was coming from the Court as well. TWU’s British Columbia counsel, Kevin Boonstra, was not able to get even one minute into the initial submissions before the bench started its questioning.

Complex Issues

The early questioning from the Court sought to clarify that the TWU cases are not simply about one issue. This became all the more evident on Day #2 when an unprecedented number of interveners made submissions. The interveners represented many associations and communities in Canada, including the LGBTQ2 community, humanists, atheists, lawyers, Evangelicals, Sikhs, Seventh-Day Adventists, Catholics, secularists, professors, charities, advocacy and civil liberty organizations, among many others. Each intervener sought to assist the Court in understanding the impact of the decision on the country and specifically the people associated with its client.

Our Nation’s Democracy

I realized that I do not envy the SCC judges. The decision in the TWU cases will significantly impact the people of Canada in more ways than I think most people realize. Central to these cases are some key questions about our nation’s democracy:

  • What does it really mean for Canada to be a “mosaic” at this time in our history?
  • What are the appropriate parameters of pluralism in our free and democratic society?
  • What does diversity mean and who gets to determine what differences are allowed in the “public square”?
  • When does a government “endorse” the actions and values of a private association and how does this shape our “mosaic” in the “public square”?

What I’m Thankful For

All-in-all, I am abundantly thankful that I live in a free and democratic country where matters are handled through a diverse group of skilled advocates and not violence and force. That is something worth preserving. In this vein, I – along with my fellow Canadians, legal professionals, those in Canada’s diverse communities of belief (including secularists, humanists, and atheists), as well as many people around the world – am anxiously awaiting to see how the Court will decide the TWU cases, and how these decisions will shape the future of the nation that I deeply love and call home.”

Thank you: Gwenyth S. Stadig (Amy, Appleby & Brennan, Waterloo) gwenythstadig@aab-lawoffice.com

Posted: Wednesday, January 17, 2018

Last Word

Ten Things Important to Me About the TWU Hearing

Privileged Nation

An adept, highly functional, engaged and impartial judiciary helps define a true democracy.  We are deeply privileged as a nation to be able to discuss and work out these complex issues of freedoms and rights with the help of such an institution.

Privileged as an Individual

I am deeply privileged as an individual to be able to able to participate in such a process without fear of harm or retaliation. Many of my colleagues around the globe are not so privileged.

Functional Democracy

In a functional democracy, it is still possible to discuss matters of the heart, of religion, of rights and of freedoms, without debilitating rancour and with good will, even if and especially when we differ. These days, that fact can make me weep with gratitude.

Diversity

So many different perspectives and voices from throughout our country and communities were there to speak to their interests as parties and intervenors in this case. They provided depth, breadth, intelligence and passion to the discourse. They are necessary.

SCC Judges

The preparation, scope of knowledge, concern, and attentiveness from our Supreme Court Justices was by turns awe-inspiring, challenging and frankly, daunting. And we would not want it any other way.

Complexity

We are best served by our judiciary when we serve them with our wisest arguments and do not flinch from grappling with the complexity of the issues. Even if our knees are knocking and our hearts are hammering.

Fruitful, Respectful and Enjoyable

Fruitful, respectful and enjoyable dialogue between the bench and bar was on full and wonderful display in this case. It made me proud.

Traditions

Tough questions of law do not mean you have to be a tough guy. The traditions of respect, collegiality and friendliness despite our differences made a lengthy and potentially charged hearing a pleasure to be a part of.

Shared Experiences

Never underestimate the power of a shared experience to draw even the most disparate of folks together, even in court. Remember that fact when you are feeling most out of your element and surrounded by strangers. You may be pleasantly surprised.

Why I’m Grateful

Finally, I am very happy that the Canadian Bar Association did us the honour of retaining my co-counsel Angie Westmacott, David Grossman, Olga Redko and myself, to present the Association’s perspective. We could not have asked for a better client or brief. Thank you!

Thank you: Susan Ursel (Ursel, Phillips, Fellows, Hopkinson LLP, Toronto) SUrsel@upfhlaw.ca

Posted:

Last Word

A (Judicial) Way with Words (and Song Lyrics too)

The following US decision was sent in to me by Barbara Grossman of Dentons Toronto:

“Eugene, this humorous short US decision (shared with me by retired Master David Sandler) denying an adjournment requested by a lawyer who had prepaid for a trip to see the total eclipse of the sun, might be a worthwhile inclusion in your newsletter, not only for the miscellany of interesting scientific, historical, literary and musical information about solar eclipses, it references, but for the Judge’s “way with words” in conveying his decision. Following a quote from Carly Simon’s song “You’re So Vain” about taking a lear jet to Nova Scotia to see a total eclipse of the sun, he concludes:

When an indispensable participant, knowing that a trial is imminent, pre-pays
for some personal indulgence, that participant, in effect, lays in a bet. This time,
unlike Carly Simon’s former suitor, whose “horse, naturally, won,” this bettor’s
horse has — naturally — lost. The motion (Doc. 31) is DENIED.”

Click Here for the full decision (it’s only 3 pages).

Thank you:  Barbara L. Grossman (Dentons, Toronto) barbara.grossman@dentons.com.
And thank you also: Master David Sandler (retired).

Posted: Friday, January 12, 2018