Maybe There is Hope After All

I have been accused by those around me of railing against the youth of today as if I were some crotchety old man talking about how my generation was different and of being prone to starting sentences with the words “when I was young…”. And indeed I am guilty as charged. I have long held that today’s teens are the most coddled, privileged generation and that this does not bode well for the future of our country. I have opined both in previous posts on this blog, and in rants to anyone who will listen, that today’s teens lack of respect for authority; my generation’s helicopter parenting; our legal tying of the teachers’ hands; awards for participation; the educational system’s relaxing of basic grammar and spelling rules; and the advent of ubiquitous social media, will all lead to this generation of teens becoming the soft underbelly of an already spineless society. But it appears I may be wrong, and that there is hope for this generation. Real and exciting hope.

My son has been in Army Cadets for two years now, and in four weeks he leaves for his second summer of training at Canadian Forces Base. I just attended the annual review parade for his cadet troop, and came away with a sense of pride, not just in my own son but in the youth of our nation. At the annual review, as well as over the last couple of years that Jacob has been in Cadets, I have been fortunate to see a generation of teenagers at their utmost. These teens, almost equal numbers of each gender, are of course regular teenagers. I am sure when not in front of their commanding officers, teachers or parents they swear, sneak booze and cigarettes, and are sexually active. But they are also good students destined for higher education and successful careers where they will be able to support themselves and their families as well as make a contribution to the community. They are unfailingly polite, respectful of authority, have a strong work ethic, are physically fit, self-motivated, and many, if not most, possess leadership skills far beyond their years.

While I am on the subject of teens, I have, through my son, met many other of his high school classmates, who, while not in Cadets, are equally impressive. In addition to being academically inclined and demonstrating hard work and perseverance, they play competitive sports or pursue some other endeavour such as dance or music at a competition level. They hold down part time jobs to earn their own spending money, do far more hours of volunteerism than just the minimum required by their school, and have a clear idea of their future path.

So maybe hope is not lost at all. Maybe my son’s generation will be the best yet. They are growing up with the benefits of the most advanced science and technology in the history of the world. At first glance it appears they squander too much of that for superficial and banal purposes but a closer look reveals a generation who will ultimately use their own internal drive, intellect, physical abilities, and technology, to do great things for themselves and for our community. If these teens I see are indicative of what is to come, I have no worries that the future of our country is in good hands.

On Loyalty

Our beleaguered Mayor of Toronto has been in a heap of trouble lately, much of it his own doing, but an equal amount due to the deliberate attempt by his foes on council and in the media to continually portray him in the worst possible light, thus distracting him from governing effectively. While Ford’s troubles at his own hands, be they drink, food, drugs, or a refusal to take advice, his travails at the hands of his adversaries are sadly par for the course in the modern political era. Yet there is an additional source of Ford’s troubles that are neither his own doing nor politics as normal. I refer to the appalling lack of loyalty amongst his inner circle. The very people who pledged their loyalty to Ford during the election and the first couple of years of his term have almost all suddenly abandoned ship when it appeared the ship was in the midst of capsizing. Now, one cannot fault many of those people, who have their own families to support and futures to worry about, for leaving his employ to seek greener, and possibly calmer, pastures. Such self-preservation is not itself an act of betrayal. However, the willingness to speak to the media, in particular the Toronto Star, the powerful media outlet that has made the decimation of the Ford administration its raison d’etre, is the ultimate act of disloyalty. These individuals certainly had no interest in publicly badmouthing the mayor when times were good and when they felt their own resumes would be enhanced by their association with Mayor Ford. These individuals are a symptom of the larger problem in business, politics, and even day to day friendships, specifically a lack of loyalty in favour of one’s immediate gratification.

One of my favourite questions to ask of individuals when I am getting to know them and one of my favourite dinner party questions is: What is the characteristic you most value in your friends? My answer is always the same and has been since I was a teenager…loyalty.

Loyalty is  the principled notion that you can and will stand by your friend, spouse, business partner, or colleague through thick and thin, through good times and bad. Sadly, in a post-consumerist society marked by the narcissism of Facebook, YouTube, Instagram, and reality TV, loyalty now seems as quaint as family picnics on Sunday or virginity until marriage. This is truly a sad fact. Looking out for one’s best interests needn’t necessarily mean throwing someone else overboard. And when taking care of one’s own interests conflicts with loyalty, loyalty ought to win out.

This idea of loyalty as an absolute virtue raises some ethical dilemmas from time to time, but even these quandaries can be disposed of in a manner that rises above the conflict in competing values. For example, take the all too common scenario of your best friend admitting to a crime, stepping out on her spouse or of cheating their boss or on a test. Your friend has run afoul of a value or values that you hold at least a dear as loyalty. How to resolve this seeming value system showdown? Which value triumphs? I have always felt the answer is actually quite simple, and need not involve the sacrifice of either of the conflicting virtues. I would approach that person, explain my concerns with their transgressions, and encourage them to come clean, turn themselves in, get treatment etc. You have thus not only not been disloyal, but doubly demonstrated your loyalty- first by not giving them up, and secondly by encouraging them to do what is right, you may have forced them to confront their demons and start a fresh path.

I am fortunate to have many friends I have accumulated over the years, most of whom have been around for 25 or 30 years, since high school or university. Over the years, the strength of many of these friendships has waned as we become busy with careers, kids, families, mortgages, and the often inevitable distance that now separates us as a result of career or marriage related relocation. In some cases the passage of time and our different directions have left us with nothing in common except the past. Yet the friendships survive because of a sense of loyalty to one another. In simple terms, this means I may not see you for years, speak to you for months, yet when you call me for help, if it is within my power to do so, I will do my utmost even at great sacrifice of time and often money. The only reciprocity is my knowing without a shadow of a doubt that you would do the same for me.

In the course of my career I have represented many criminal law clients, and my dealings with the constabulary have developed in me a tremendous disrespect for the institution of policing. I think the way officers will lie to back one another up is an affront to our justice system and to the very Charter on which it is balanced. Yet I must confess a grudging admiration for the loyalty these officers show to their colleagues.

It is often said that there is no honour among thieves, except as most professionals involved in the criminal justice system will attest, organized crime specifically, and lesser criminals generally, have a heightened sense of loyalty. I have seen many clients plea out and accept the consequences rather than rat out their friends. It is also worthy of note that next to pedophiles, the most hated inmates in jail (and those next in need of solitary confinement for protection) are those perceived to have been disloyal. The snitches.

When the criminal underworld employs a greater familiarity with loyalty than the political and business world upon which we rely to run our country, we ought to all be concerned. And perhaps take stock of our own lives and what, if any, sacrifices we would make for loyalty to those who have earned it from us.

“Dear Blockhead”: Handling Difficult Opponents

Making snide comments. Opposing reasonable requests. Filing rapid-fire unnecessary motions. Ignoring phone calls and emails. Condescending letters copied to clients. Interrupting during submissions. Accusations of unprofessional behaviour. Suggestions that a licensee is not competent.

Chances are, each paralegal has either faced such an opponent already, or soon will. Inside the courtroom and out, these opponents make the smallest tasks more difficult, add to stress and drive up costs.

Difficult people cannot be changed, but our response to them can be.

“I’ve had my share” of difficult opponents, says Elaine Page, recipient of the 2013 Law Society of Upper Canada Distinguished Paralegal Award.

“Keep it in perspective,” Page advises. “Just because they are acting that way, doesn’t mean you have to get down in the mud with them. Often, they are baiting you. If you behave in the exact opposite way, you can’t lose.”

Over the course of 20-plus years advocating for clients, Page encountered condescending tones and behaviour more often in the years before paralegal licensing. She has noticed that over the past five years, lawyers have become familiar with the skills and competency paralegals bring to the legal system.

Unfailingly professional conduct, including being fully prepared, is Page’s best strategy for handling the odd combative licensee. “Things have changed substantially. Being prepared and acting like a professional the whole time, occasionally took them by surprise. There’s a different level of respect now.”

Know Your Opponent

Wendy Matheson, a lawyer at Torys LLP, wrote a Law Society Gazette article about the types of difficult opponents one may encounter.

Matheson identifies 10 types of difficult opponents, including: warriors, escalators, showboats, novices, bad-behaviour mimics, stressed-out litigators, pawns, yes-men, bullies and bad losers.

George Brown, a senior paralegal, has met a few of those types over 20 years of litigating. One licensee comes to mind when the topic of civility is raised. “He has an extremely aggressive style. He will tell opposing counsel what a dismal chance they have of success, that there are weaknesses in their arguments. He blind-sides his opponents. I’m not entirely sure it is a disservice to his clients, because they know they really have a warrior on their side.”

C’est la guerre!

For some people, all it takes is one “govern yourself accordingly,” and the letter war is on, according to Matheson. Breaking the pattern can calm things down. “Choose not to escalate. There is a good chance the other side will not escalate either.”

Some counsel deploy a “showman” style, Matheson says, behaving civilly when dealing on the telephone or in person, then later copying clients on “zinger” letters that bear little or no relationship to the discussions.

“One of my colleagues got a letter from opposing counsel that read: ‘Your arrogant and block-headed attempt to bludgeon opposing counsel into submission with Rule 57.07 provided my client with a nice bit of entertainment,’” Matheson recounts in the Gazette article.

A fellow licensee has sent condescending correspondence to Page, including suggestions that she does not understand various rules of the court. Page responds politely, but firmly. “This particular licensee is simply exceptionally aggressive. That is her style. I finally wrote back and asked her whether she realized I had been on the Rules Committee (of the Superior Court of Justice).”

Some opponents view their cases as all-or-nothing wars, Matheson says. Putting the zeal into “zealous advocate,” these litigators seem to view rudeness as a strength. Interruptions, interjections and objections are examples.

Do As I Say — And As I Do

Criminal and Constitutional lawyer Clayton Ruby, CM, has simple advice for handling interrupting counsel: “Don’t give them the opportunity.” He suggests licensees “Be conservative in your submissions, to minimize the opportunity to interrupt. After two or three interruptions, I sit down and say, ‘Your Honour, I cannot continue.’ Let the judge be responsible for directing counsel. Judges generally hate interruptions, and anyone watching will think, this does not look appropriate to me.”

Ruby says responding in kind to a difficult opponent is “what not to do” in these rare cases. “You don’t want to scare the judge, to have the judge worry that he or she is about to lose control of the courtroom and the proceeding.”

Page agrees. “Do not bicker back and forth with opposing counsel. Speak to the justice, not to counsel. I’ve said to judges, ‘Please ask opposing counsel not to interrupt me during my submissions.’ They’ve embarrassed themselves. I’ve just pointed it out.”

Egregious behaviour that is on the record, or has negatively affected a client, should be reported to the Law Society, senior licensees say.

Ruby notes that the Law Society may ask licensees to “come in for a chat” to explain their words and actions. “If you’re smart, you say, ‘Oh, my goodness, I was having a bad day. I apologize and will write a letter of apology if necessary.’”

Let the Law Society deal with things like unresponsive replies to requests, Ruby says. “That’s what they’re there for.”

Fight Fire With Fire – Get Burned

Fighting “fire with fire” is a slippery slope that ought to be avoided. Page says it’s easy to get sucked in, “When opposing counsel is saying you did this, and failed to do that, especially if it is inflammatory, like saying they were not served. It’s tempting. But let them finish, even if what they are saying is outrageous. It’s about staying professional, even when they’re trying to push your buttons. The court will appreciate your professionalism.”

Darryl Singer, a senior litigator, agrees. He says that uncivil litigators “remind me of how I do not wish to behave.” The key is to recognize that you can’t change others, but you can control how you respond to them, Singer says. “It takes inner strength at times, not to respond in the same manner. You must consciously decide to be civil. Careers and lives are affected” by inappropriate behaviour. “Be calm, rational and clear-thinking. That will win the day.”

Bad behaviour can affect clients and drive up costs. “Civility makes the difference between a four or five-day trial and being able to settle without a trial,” Brown says. “I have colleagues who, if they are on the other side, I know we will be able to settle the matter in the best interests of the clients.”

Page says that licensees who are arrogant in an attempt to impress a client take the risk of having the strategy backfire. “The court can and will chastise a licensee who acts that way, and there may be cost consequences,” she says. “I’ve seen that happen hundreds of times in court.”

Brown has seen courtroom arrogance play out to the detriment of opposing counsel. “Being prepared is a greater advantage.” Early in his career, Brown opposed counsel with greater experience and confidence. “I knew I had won because I had hardly slept for days. I worked 18, 20 hours a day, preparing factums and reviewing the Rules. He was over-confident and I was the opposite.”

Manage Expectations – Yours And Theirs

Handling clients who expect nothing less than animosity toward “the other side” can lead good representatives into temptation.

“A client can become entrenched in their foxhole, to the point where no agreement on issues is available,” Brown says. “The case must go to trial. There is nothing at all wrong with reaching out to opposing counsel with reasonable requests, especially if you still want to have a relationship with them, or if your client will have a relationship with the other party. You never want that to happen. As paralegals, we are problem-solvers.”

Sometimes, a legal professional is civil — until their case starts to go awry. “At that point,” Matheson writes, “They begin to lash out at everyone, including counsel and even the court, making often extreme and totally unwarranted allegations of misconduct. Ultimately, like all uncivil conduct, this type of behaviour reflects badly on that litigator’s case, not yours.”

Guidance, Mentoring Necessary

Experience plays a role in civility. Matheson says a lack of practical training and mentoring can create litigators who “flail about in their practice and in court,” as they learn how to behave.

Brown recalls his early career, when he was “young and aggressive,” anxious to push the boundaries. Eager to please his client, Brown drafted an aggressively worded motion, chock-a-block with rules, citations, case law and hyperbole.

When he walked into court and met his opponent — Elaine Page — he immediately felt embarrassed. “I met this nice woman, and realized I had behaved so unprofessionally. You have to be careful, how far you go. You can be destroyed. I learned from that, and from my peers, that my words and arguments have a profound effect.”

As he enters his 21st year in practice, Singer finds civility on a down-turn. Lack of appropriate mentoring is one reason. Mentors can combat the combination of lack of experience and fear that result in poor behaviour. “When I started out, it was easy for a young litigator to go to court every day” and receive guidance, formally and informally.

One reason for the change is a large influx of new licensees, Singer suggests. Where once, 1,000 annual graduates competed for mentors, placements and articling positions, upwards of 3,000 now seek those opportunities.

Why It’s Called A ‘Profession’

Singer advises reaching out, and points to such resources as the Law Society’s Practice Mentoring Initiative for lawyers and paralegals.

“It can be short-term or long-term mentoring,” Singer says. “It’s a good program. Reach out to the different organizations. You will find mentors. I don’t know anybody who would refuse a request for advice. Just call someone and say, ‘Can I bounce something off you? I have this issue, here is what’s going on.’ I take mentoring very seriously and I think most senior counsel do. Ultimately, this is the future of the profession.”

At the same time, new licensees who feel pushed around in court, spoken down to, or told they are not following procedures, may feel intimidated. Senior licensees can put matters in context, and offer advice.

“New licensees are less able to know what to do” when opposing counsel appears to be unco-operative or uncivil, Ruby says. “Ask for an adjournment — with consent of opposing counsel, if they’re smart. Take that half hour and think about how to respond. Call someone more senior and they will advise you. That’s why it’s called a profession.”

But I Saw It On TV!

Some legal professionals seem to adopt a persona usually seen only in fiction. Matheson says these licensees have “learned bad habits by bad example, in court, on TV, or in their dealings with other lawyers,” she writes. “These litigators assume that if it is OK for someone else to behave in a certain way, it is an acceptable way to behave.”

Personal attacks are not only “out of bounds,” Brown cautions — they can backfire.

“If you attack the messenger, you’re showing that you don’t have a good case, because if you did, you would speak to the issues.” Referring to Paralegal Rule of Conduct 4.01, Brown notes that paralegals are to “raise fearlessly every issue, advance every argument, and ask every question” when advocating for a client. “That leaves room for a tough litigator to go too far.”

Bullies exist in the legal profession, as in other fields. Matheson writes that some litigators “treat people miserably until someone makes them stop.” Email and social media make it easier than ever for legal bullies to misbehave and accuse other licensees of unprofessional conduct.

Bad Day, Or Warning Sign?

One issue that can’t be overlooked is that mental health and substance abuse affect behaviour. “Opposing counsel may be going through a divorce, having financial issues, addiction issues, or other problems they carry with them throughout the day,” Singer says.

One sign that mental health or substance abuse issues — or both — are affecting a licensee is a marked change in behaviour, says Singer, who volunteers as a peer counsellor through the Ontario Lawyers’ Assistance Program.

“Some people are just difficult,” Singer acknowledges. “But if you have been dealing with the same licensee for years, and there has never been a problem, and suddenly they are not returning phone calls, not responding to requests, or if they have always been unfailingly polite and now they are not interested in civility — that is a sign that there is a problem.”

Ruby has also seen professionals affected by mental health and substance-abuse problems over his long career. Whatever the cause, uncivil litigators are “an embarrassment for the profession,” that ought to be viewed in context.

“We’re Canadians,” Ruby says. “We tend to be polite and listen to the other side. Have you ever seen an American courtroom? They’re brutal. There are more important issues for the Advocates Society and the Law Society, such as increasing access to justice and facing the problems experienced by women and racialized practitioners.”

Brown keeps the long-game in mind, his “eyes on the prize.”

“When the time comes for me to sit down and reflect on my life and my career, on how I carried myself,” Brown says, “I want to be able to say that I’m proud of my representation, and of my profession.”

by Elizabeth Published on Paralegal Scope Magazine

Oh, Where Have All the Mentors Gone?

Darryl Singer, a lawyer and popular Continuing Professional Development presenter, laments the under-use of mentoring in the legal profession. He shares more than 20 years’ experience with the “dying art” of mentoring, with Paralegal SCOPE Magazine readers.

In the legal profession, as in many other professions, mentorship, where a senior member of the profession takes on a protégé, is a dying art.

Sadly, the focus on newly minted professionals is their ability to generate billings, as opposed to instilling in them the foundations for long-term success. Even articling, historically an integral part of legal training in Ontario, may go the way of the dodo bird in the next few years. And no such articling-equivalent program is mandated for paralegals.

For those who do article in a law firm or intern in a paralegal practice, the experience is more often an exercise in clerical tasks than a continuation of one’s legal education.

I know of very few firms anymore that are prepared to allow a student or junior the privilege of sitting and observing a day or two of a serious trial or complicated motion, preferring instead to keep her in the office cranking out piecework on files for which she has no context. This is a short-term, profit-driven decision on the part of the employer at the sacrifice of longer-term benefits to both the student and the firm.

Learning by Doing

The value of allowing your young charges a certain number of free days to just follow you around and observe cannot be overstated. And I do mean observe. Not take notes or chase down some last-minute research, but just sit and take it all in. You learn by doing. But before you can try to do, you must learn by watching. Law school and paralegal diploma programs, while giving graduates of such degrees a basic grounding in the law, do not teach one how to be an effective advocate, how to generate and manage clients, or any of the other skill sets required to be successful in the legal profession.

During my articles, more than 20 years ago, I dare say I learned more in two days in the gallery of a courtroom at the old 145 Queen Street West family court observing an acrimonious divorce trial (are there any other kind?) than I did in three years of law school.

The wealthy but estranged spouses were represented on one side by my mentor, the late (all too soon, sadly) H. Douglas Stewart, Q.C. and the esteemed Malcolm Kronby. I was afforded the opportunity to witness up close and personal: the style and substance of oral advocacy at its finest; the art of simple but effective cross-examination; the obvious and not-so-obvious benefits of knowing your case inside-out and backward; as well as a perfect interplay of fearless advocacy and courtroom decorum; not to mention the civility with which each litigator treated his adversary and his adversary’s client.

If what I see of young legal professionals in court and at discoveries lately is any indication, I can infer that all too often this sort of mentoring is not part of most firms’ articling programs.

Benefits Outweigh Costs

True, being an effective mentor comes at a short-term financial cost. It takes you away from otherwise billable hours. It means there are times where you could have your inexperienced employee at her desk cranking out routine but billable work but instead you take them to court with you. However, in the long run this will pay high dividends to your firm, your clients, and you personally, not to mention the profession at large.

The importance of mentoring should not be lost on the paralegal profession. Since the licensing process elevated your profession to Law Society licensee status, the standards expected by the public who retain you, of the lawyers who refer you work, and of yourselves, is and should be greater than ever.

To those of you who have some senior level of experience I implore you to find the time to mentor.

Take on a co-op student or intern from one of the paralegal diploma programs and actually invest some of your time to ensure they gain some real value from their time under your wing. Hire a junior if you can afford to. Join the Law Society mentoring panel.

Some of these options will not cost you in terms of a salary, but if you wish to make the internship effective it will cost you significantly in terms of time. I assure you it will be worth it. Remember that your mentee will observe not only your advocacy skills and client management skills but also your general demeanor.

Professional Obligations

In fact, having an articling student monitoring my every move makes me more conscious about my conduct. For that matter, we influence all those we come into contact throughout our business day, for better or worse.

Ensuring that we uphold the highest standards of professionalism, integrity, civility, and competence and passing those attributes on to the younger generation ought to be a personal and professional obligation of all licencees.

At a minimum, we all owe that to each other and the public who place their trust in our hands. After all, good mentoring, not unlike good parenting, is more about leading by example.

Darryl Singer is a Toronto litigator who currently mentors two articling students.

by Elizabeth Published on Paralegal Scope Magazine