Darryl Legal In the News

Litigator and Paralegal SCOPE contributor Darryl Singer explains a decision that affects paralegals whose practice includes judgment enforcement and Provincial Offences.

The corporation that operates the 407 ETR toll highway is the focus of one of the more significant bankruptcy decisions rendered in the last several years by the Court of Appeal for Ontario. The decision, released Dec. 19, 2013, is Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2013 ONCA 769.

While paralegals cannot give advice or practise in the area of bankruptcy and insolvency law, it is important keep up with current bankruptcy legislation and court decisions.

If you represent parties in enforcement actions after Small Claims Court decisions, you must be alive to changing trends in insolvency law. This will help paralegals to advise clients appropriately. A basic understanding of bankruptcy law as it relates to provincial fines, penalties and suspensions issued by various provincial government ministries, is helpful in Provincial Offences Act practise, as well as in relation to the 407.

Justices Rule Against 407

In the appeal, the three-judge panel of the Court issued a ruling against the corporation that operates the 407 ETR toll highway. The Court’s reasons were ones that insolvency lawyers and bankruptcy trustees have suggested for years. The issue related to 407’s ability to have the Ontario Ministry of Transportation (MTO) refuse to issue or renew licence plates/stickers if the driver in question had money owing to 407 for unpaid tolls.

The case involved a former truck driver and traveling sales agent, Matthew David Moore. Mr. Moore discovered after being discharged from bankruptcy and having all of his pre-bankruptcy debts expunged, that he could not renew his vehicle plate permit unless he paid the 407 at least a portion of the money he technically no longer owed to 407 (as that debt had likewise been wiped clean on the date of his discharge from bankruptcy).

This inability to obtain vehicle plates would, of course, not only prevent him from legally driving on the 407, but also anywhere else in Ontario. Given his employment history, this would also appear to interfere with his ability to earn a livelihood. Such an outcome is in direct contravention to the aims of consumer bankruptcy in Canada — laws that are founded on the “fresh start” principle.

Judicial Officer Agreed with Applicant

Despite the federal bankruptcy regime, the Highway 407 Act 1998, S.O. 1998, c. 28 allowed the 407 to require the MTO to suspend or refuse permits and plates to those who owed even modest sums to the toll highway company. As a result of this perverse quandary he faced after his discharge, Moore applied to the Registrar in Bankruptcy — a judicial officer in the Toronto court with oversight for bankruptcy law — for a judgment requiring 407 to notify the MTO that they could no longer withhold plates.

The Registrar agreed. The 407 then appealed to the Superior Court, which, in what can only be described as a misapprehension of the basic tenets of insolvency policy in Canada, overturned the Registrar’s decision. The judge concluded that there was no apparent conflict between the fresh start concept of the federal bankruptcy regime and the ability of 407 to essentially enforce collection of a debt post-bankruptcy.

Moore was set to appeal to the province’s highest court when the 407 sought to derail the appeal by offering what he said was a “sweetheart deal” to settle his outstanding debt. The federal Superintendent of Bankruptcy stepped in and was permitted by the Court of Appeal to argue the merits of the case for the benefit of all discharged bankrupts who found themselves in Moore’s situation. I understand that number could be in the thousands.

‘Fresh Start’ at Heart of Federal Legislation

In Canada, the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3 (BIA) deals with consumer bankruptcies with the aim of allowing discharged bankrupts a fresh start. The idea is that an “honest debtor” who has gotten in over his or her head financially would be entitled, after a period of bankruptcy, to a discharge.

Once an Assignment in Bankruptcy is made, no unsecured creditor can continue to enforce or collect upon any debt of the bankrupt. Upon discharge, all debts, except those enumerated in section 178(1) of the BIA, would be expunged, thus allowing the now discharged bankrupt to be free of any and all debts incurred prior to the date of bankruptcy.

In this manner, Parliament reasoned, the individual could move forward and rebuild their financial life free from the past encumbrances. Debts which would survive bankruptcy would include those debts incurred by fraud (one who incurs a debt by committing a fraud is obviously not an “honest debtor”); those related to child or spousal support; certain types of criminal court ordered restitution or fines.

It is long-settled law and policy in Canada that, regardless of the fact that the fresh start principle results in many creditors ending up unpaid to the tune of hundreds of millions of dollars a year, the consumer bankruptcy regime set out in the BIA is actually in the country’s best interests. I would suggest it is also in keeping with our national commitment to social justice and equality of opportunity.

In Through the Back Door

In Ontario, however, an apparent conflict with the aims of the BIA arose as a result of the 407 Act. Although the 407 could no longer take any legal action or enforcement mechanisms to collect its toll debt from a bankrupt, it could still require payment from the discharged bankrupt, in exchange for lifting the permit suspension.

In essence, if one wanted to continue to legally drive in Ontario after being discharged from bankruptcy, one would be forced to make a financial arrangement to repay some or all of the pre-bankruptcy debt one owed to 407, in order to obtain plates and permits. Thus, 407 was obtaining through the back door what it could not legally do by entering through the front door.

Further, because the BIA consumer bankruptcy regime also groups together all unsecured creditors of a bankrupt to share any assets or surplus income of the bankrupt (if any), the 407’s ability to have the MTO suspend plates also gave the 407 an unfair position as against other creditors, granting it a superior position not intended by the BIA.

In fact, this point was not missed by Madam Justice Sarah Pepall, writing for the panel. She stated, quite tongue in cheek, that the “407 Act should not permit (407) to occupy the collector’s lane.”

Paramountcy Doctrine Applied

Madam Justice Pepall also conducted a very detailed historical overview of the Supreme Court of Canada’s decisions on the doctrine of paramountcy. Simply stated, this doctrine specifies that when a federal piece of legislation and a provincial Act are in conflict, the federal legislation reigns supreme. She concluded that as the doctrine of paramountcy applied and further, as the section of the 407 Act which granted the suspension powers to 407 conflicted with the fresh start purpose of the BIA, the relevant section of the 407 Act was to be rendered inoperative.

This is no insignificant decision. Given that there are approximately 25,000 bankruptcies a year in Ontario, thousands of Ontario drivers validly discharged from bankruptcy are currently hindered from a true fresh start because they cannot obtain plates from the MTO.

The 407 is determining whether to seek leave to appeal to the Supreme Court of Canada. I understand that if it does so, it will also seek a stay of the effect of the Court of Appeal’s decision, pending the outcome of the Supreme Court appeal.

Until then, the current state of the law is as set out by the Court of Appeal; the 407 can no longer require the MTO to withhold plate permits from discharged bankrupts. Given the thorough analysis of and reliance upon Supreme Court bankruptcy decisions and paramountcy cases, I suspect even if the matter is appealed, the reasoning of the Court of Appeal is unassailable and will be upheld by the country’s highest court.

That being said, it is my understanding that discharged bankrupts on the 407/MTO suspension list who contacted 407 after the decision was released are still getting the run-around. Apparently, collections agents at 407 are being told not to change their protocol until a decision regarding a stay has been made. I would suggest that this is unlawful on the part of the 407 unless and until they seek and obtain a stay.

Darryl Singer is a Toronto litigator and dedicated 407 user who is thrilled by the Court of Appeal’s decision and encourages those affected by the ruling or their legal representatives to overwhelm the 407 with their demand for plate reinstatement.

Since the writing of this article, 407 has been granted leave to appeal to the Supreme Court of Canada. As well, the Court of Appeal granted a stay of the effect of its Order pending the decision of the Supremes. So technically, the status quo remains, although I am hearing from both lawyers and trustees that they are having mixed results in getting the suspensions lifted, despite the official position of 407 to maintain the suspensions. I personally think the analysis of the Court of Appeal regarding the conflict of laws is almost flawless and the Supreme Court will uphold the decision. Stay tuned…

Read the application for leave to appeal and various applications to intervene.

by Elizabeth Published on Paralegal Scope Magazine

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

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

A pink monkey, a mock trial gone sideways, and plain talk from a retired deputy judge were among the surprises during a CPD event at North York Central library, May 17.

Presented by CPD On-time and sponsored in part by Tripemco Insurance, Anatomy of a Case brought together just over 60 participants, both in-person and online, via webinar.

Recently retired Deputy Judge Allan Mintz began the evening with provocative advice for paralegals. Mintz prefaced his effective advocacy talk with a warning that anyone who is easily offended may not be receptive to his comments.

Drawing on some 50 years of legal experience, Mintz said not all lawyers, or paralegals, have achieved the status of “advocate.”

“Advocacy has nothing to do with smiling and being compliant. Advocates must passionately, forcefully and authoritatively present submissions,” he said, and held forth on his opinion of the way paralegals introduce themselves in court.

“I cannot understand why paralegals indicate that they are licensed by the law society,” he said.

“There are no unlicensed paralegals. The suggestion that, because you are licensed by the Law Society, creates a new privileged category is offensive to every lawyer, including deputies who have struggled to gain some recognition through hard work, particularly if there is a deficiency in your knowledge of the law. Personally, I find the practise offensive and so do many other deputies.”
Understand the Case Law

Mintz implores paralegals to make better use of their fellow licensees and law students, who have had the benefit of more formal legal education and training than paralegals.

“Asking another paralegal with the same absence of fundamental knowledge of the law is a useless exercise,” Mintz said. Paralegals failing to use legal decisions adequately is a source of great frustration to many deputy judges. “The deputy sitting on your case is a legally trained individual who may not be receptive to anyone who either does not know the relevant law or states it incorrectly. Do not enrich yourself with legal knowledge and you will never reach the level of a persuasive advocate. I know this is a harsh reality, but it is reality.”

Mintz suggests paralegals pool their resources to obtain legal opinions from lawyers or articling students.

To “beat the other side” or “win at any cost” is not the proper role of an effective advocate, he noted; it is to assist the judge. Mintz said this is another area in which paralegals can improve.

“You’d be surprised how often I indicated that a paralegal had proved liability on the required standard, but failed to prove any damages,” for example. “If at the beginning you are aware of all the issues you must prove, including damages and referred to it, you won’t fall into this trap. The essential tools you have as an advocate are common sense, rational thinking and judicial decisions that support your submissions.”

Effective Advocacy

Mintz suggests creating a “persuasive, rational road map” when advocating, with attention to detail and a deep understanding of all relevant case law. He provided specific advocacy tips, including how to speak effectively on a matter by being prepared, brief, respectful and receptive to the justice, while focusing on only the relevant issues and evidence required for a “rational axis” of persuasion.

Another straightforward speaker at the event, Darryl Singer, interviewed a potential client — his daughter, looking to recover stolen allowance funds from her brother, and then attending on behalf of a friend, Pink Monkey.

Does Pink Monkey Present a Conflict?

Singer, a lawyer with more than 20 years’ experience, used the engaging exchange to effectively demonstrate the professional and ethical obligations paralegals face when interviewing potential clients. He touched on practical business elements of client intake, advising against such things as negotiating retainer fees and “doing a favour for a friend.”

Besides potential liability problems, “It sets you up to devalue what you do,” Singer said. “You’re providing a professional service. They have to respect your skills and knowledge. If you start off with negotiating, you will be negotiating for the whole relationship. It’s not short gain you’re going for. Think about the long game.”

Singer doubled as Deputy Judge for the mock trial which topped-off the evening. Senior paralegals George Brown and Susan Koprich demonstrated advocacy skills in a small claims matter. Relying on legal principles, legislative interpretation and case law, the pair demonstrated that quick thinking and paying close attention to the judge can turn a case around. While the plan was for the Defendant to win, Singer found in favour of the Plaintiff, who was awarded compensation for his Lamborghini repair work.

All-important Pleadings

Brown had spoken about pleadings, which are “the most important documents you will write on behalf of your clients.” He advised writing pleadings as if they will be reviewed by “the toughest judge you know.”

Brown took questions about amending pleadings, from both the attendees and webinar participants. He pointed out that paralegals are held to a higher standard than people who self-represent in court, so it is important to refer to the Rules of the Small Claims Court when crafting pleadings.

Stanley Razenberg, a paralegal at Bergel, Magence LLP, discussed legal research and provided pointers on such tricks as having case law updates sent via email. Maximizing research resources not only boosts one’s knowledge and ability, he said — it is also a great tool for networking.

Don’t Be That Person

Gail Mahadeo, a litigation lawyer specializing in professional liability, spoke about settlement conferences. She said these are “the most important element” of cases and should not be given short-shrift. “It is the first chance all the participants have to be honest,” Mahadeo said, adding that settlement conferences offer the opportunity to get a frank assessment of the case from the “fresh eyes” of a judge, deputy judge or referee.

Co-operation, preparation and asking effective questions at the best time, can propel a case forward and affect cost assessments, Mahadeo said. Ensuring the client has been briefed on courtroom etiquette goes a long way, too. “Don’t be “that person,” she advised. “If you put your cellphone on a chair and it goes off — I hear you.”

The archived webinar and supporting materials will be available at CPD On-Time.

by Elizabeth Published on Paralegal Scope Magazine