THE UNSETTING TRUTH ABOUT SETTLING PART 1: MORE MISSIVES FROM CANADA: “EXPERIENTIA DOCET”

We are continuing with our look at articles by the retired Canadian judge, The Honourable Joseph Quinn.  For those who haven’t read them. For those unfamiliar with his work  it is always worth reading Things Lawyers do to Annoy Judges, and the judgment in  Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii), summarised here.   This post looks a Joseph’s article “The unsettling thing about settling”, a full copy is available here  The Unsettling Truth About Settling – Part I.  The edited highlights in this post are to encourage you to read the full text.  The article considers the advantages, and disadvantages, of settling cases and the need for lawyers to get experience of trials so they can perfect their craft.

“Without the ability to competently and comfortably conduct a trial when needed, you are destined to become a salt lick in the field of law; and a mere condiment for the big dogs. At that point, your only recourse will be to seek an appointment to the bench. It worked for me.”

PRACTICE MAKES PERFECT

“Overture

[1] How do you become a talented trial lawyer?
[2] You become a good golfer by playing golf regularly. You become a proficient pianist by playing the piano frequently. You become a skilled skier by skiing often. You become . . . If you tell me that you know where I am going with this, I will cease these annoying alliterative references.
[3] Experientia docet [Experience teaches].”

GUTS AND HARD WORK TRUMP BRAINS

“Gut check
[18] For a litigator, the gut is your most important organ. It will tell you whether you are selling out your client by way of an unreasonable settlement. In trial work, given the choice between guts and brains, I choose the former. Guts and hard work trump brains.”

A TRIAL IS A TRIAL IS A TRIAL

“A trial is a trial is a trial
[19] Whether you are in Small Claims Court, the Ontario Court of Justice or the Superior Court of Justice, all non-jury trials are pretty much the same: they have issues, and they have evidence in the form of witnesses and documents. Issues are defined and argued. Witnesses are examined. Documents are proved and tendered to the court. In other words, a trial is a trial is a trial; the stakes are the only distinguishing feature.
[20] All trials offer valuable experience”

GETTING EXPERIENCE

[26] How do you get trial experience? In my opinion, there are two main options:
1. Family trials frequently involve self-represented litigants. (In fact, it was the epidemic of self-represented litigants that drove me to an early retirement.) I think they offer the best path for anyone seeking courtroom experience. Self-represented opposing parties present a low costs downside. Also, family cases typically have modest disbursements.
2. Take trials in Small Claims Court. They are relatively low risk as far as costs are concerned (particularly where the other side is self-represented and you waive your fees) and are a valuable forum for the novice litigator.
[27] The other options are ones that are commonly touted and I mention them for completeness, but without enthusiasm: (1) If you are part of a firm with a litigation department, presumably you will be given the opportunity to act as junior co-counsel; (2) Do pro bono work for a legal clinic or organization in your community. Frankly, however, I think that if you are going to do pro bono work, it – in the first instance – should be for your own clients, where you are able to pick the specific beneficiary of your generosity as well as the subject matter of the litigation to be undertaken; (3) Motions are not a waste of time for inexperienced counsel. I am overstating the point slightly, but contested motions are trials without the witnesses. A morning spent sitting in motions court will expose you to many types of on-your-feet advocacy.
[28] Taking trials without charging fees will have immediate financial drawbacks, but the long-term benefits to your career are incalculable.

FINALE

“Without the ability to competently and comfortably conduct a trial when needed, you are destined to become a salt lick in the field of law; and a mere condiment for the big dogs.[1] At that point, your only recourse will be to seek an appointment to the bench. It worked for me.”