Keeping Tabs Monthly News from The Young Advocates’ Standing Committee

Justice Doody | Long-term Vision | Arnup Cup | TAS Awards | Interview | Upcoming Events

Young Advocates’ Standing Committee Call for Applications The Young Advocates’ Standing Committee is seeking energetic junior Society members to become part of the 2016-2017 committee. This is an excellent opportunity to build your profile within The Advocates’ Society and your local bar. Click here for the YASC application form

CHAIR CHAT miss the Trivia Challenge for Charity at Hot House Café on March 22, Wine and Cheese with the Bench at Campbell House on April 21 and Toronto Mentoring Dinner Series: CHAIR Time is on Your Side on May 16.

Throughout this term, the Young Advocates’ Standing Committee has been busy participating in every aspect of BY: YASHODA RANGANATHAN The Advocates’ Society’s work—from interventions and publications to mentoring and networking events promoting the interest of advocates. If you are a Young Advocate (ten years of call or less), enthusiastic and interested in February’s brief display of snow seems to already be thawing contributing to the important work of the Society please and spring draws nearer. Looking forward to unwrapping consider applying to YASC by April 1. The application form my four-month-old’s warm layers so he can better see the can be found HERE. world around him when winter is done, as we walk to farmers’ markets, shops and baby programs around the city.

As we all unwrap our warm layers, the Young Advocates’ Standing Committee will host a series of networking and Yashoda mentoring events for young advocates. In particular don’t

The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors.

Keeping Tabs | February 2016 | Page 1 one’s work is not an exercise in self- genuine interest in the response. JUSTICE DOODY gratification; it is essential to bea successful litigator in whom the court Braek Urquhart, Articling Student places its utmost trust. It’s how cases Assisting Peter with a commercial WHAT ADVOCATES HAVE are won. And Peter should know. He arbitration has been a highlight of my LEARNED FROM has had an outstanding career indeed. articling term. By working with Peter MR. JUSTICE DOODY and observing him in action, I have seen Jon Doody the level of hard work, preparation and I have been very fortunate to have professionalism he expects from himself Justice Peter K. Doody, the Vice- had the ability to call on my father’s and instills in others. I consider myself President of The Advocates’ Society, knowledge and expertise lucky to have learned from Peter’s was appointed to the Ontario throughout law school and dedication to his profession and craft at Court of Justice, effective into my career. He has the height of his career. February 24, 2016. Justice always been willing to Doody managed a large stop whatever he was Karen Perron and varied litigation doing, no matter how Peter was a great sounding board to practice focused on important, to answer consult for practical advice and to arbitration, commercial any questions I had, debate questions of law. His best advice litigation and public, no matter how trivial. to me can be summed up as follows: be administrative and I have no doubt, clear and concise and stay out of the insurance law. Justice however, that the weeds! As litigators, we tend to want Doody will be a great asset patience he showed me the last word on each issue raised by to the bench but he will also was equally shared with our adversary but effective advocacy is be greatly missed as an executive anyone who asked him for help. knowing when to stay focused in your member of The Advocates’ Society and He has always shown a keen desire to argument. as a partner at Borden Ladner Gervais help others to continue to learn and LLP in Ottawa. hone their legal skills. His love of the Tom Ozere law is apparent, and he is always open I had a civil trial against Peter. He made To commemorate Justice Doody’s to discussing and debating a different a successful objection based on the appointment, the Keeping Tabs team approach than his own. He has never collateral fact rule. He is the only lawyer asked a number of young and young- been unwilling to admit he may be that I have ever seen make an objection at-heart advocates one question: “What wrong, though granted he rarely is. based on the collateral fact rule in a civil have you learned by working with Peter Personally, I will forever cherish being case. He was clearly the only person Doody?” able to share counsel table with him on in the courtroom who knew what the a trial last year, especially since I will collateral fact rule was. Michelle Doody no longer be able to share a courtroom I learned these rules from my dad: work with him. He has always been, and will Nadia Effendi hard, be kind, stay humble and there is continue to be, my role model both in Through working closely with Peter at never any need to be a bully. and out of the courtroom. BLG for over a decade, I have learned the art of advocacy. Peter’s dedication Barbara McIsaac Q.C. Duncan Ault to the law and the clients he served Peter Doody has always represented to I learned that the practice of law can has been something I have sought me the ‘ideal’ lawyer. Whether it be a be a joyful experience. Peter has an to emulate in my career. Peter is the civil litigation issue or a criminal issue, abiding love for the law and a passion epitome of a meticulously prepared he always asks that next question. There for every facet of litigation. It is little lawyer who practIces with integrity and is always more to know or understand wonder Peter relishes advocacy as he has been an exemplary role model for about the case. Peter always knows that is so skilled at it. They say Magellan many. He will be missed at BLG but our there is more to be known. That will be really liked exploring. Happily, for loss to the bench is the gain of the justice a terrific attribute as a judge and I know those fortunate enough to work with system as a whole. that Peter will be a terrific judge. him, Peter’s joy is infectious. David W. Scott O.C., Q.C. Natalia Rodriguez Justin Mohammed If you ask Doody to join you as a junior Working with Peter has taught me Peter Doody demonstrates the you will end up listening to him argue so much about the importance of importance of curiosity in the practice your case. preparation. Every sentence in a factum of law, a rare attribute in a profession must be necessary, every clause in a where people often feel compelled to Congratulations Justice Doody on your contract scrutinized, every piece of give the illusion of knowing it all. He appointment and thank you for your evidence considered. It is not enough is always ready to learn more, never hard work on behalf of your friends at to do “just enough”. Diligence in fears to ask questions, and takes a The Advocates’ Society. Keeping Tabs | February 2016 | Page 2 way to build one’s reputation, skill set, or capital within the LONG-TERM VISION firm. The results bear this out: Lucas was named a Lexpert Rising Star in 2011 and won The Advocates’ Society’s Arleen Goss Young Advocates’ Award (2011), among other well- deserved accolades. Lucas was made a partner at Lerners in FREE TIME: WRITING, SPEAKING, AND 2012 after just 6 years at the Bar and only 2 years at Lerners.

PRO BONO As it turns out, giving his time away for free—while JOHN ADAIR, ADAIR BARRISTERS LLP generating precisely zero dollars of revenue for his firm—has allowed Lucas to build a profile and reputation that put him DAVID CAMPBELL, at the top of his cohort. ROGERS PARTNERS LLP

Rahool Agarwal, Norton Rose Fulbright Canada LLP Young lawyers want to Rahool Agarwal was called to the Bar in 2007, after articling get ahead. They want at Blake, Cassels & Graydon LLP. He practiced as an associate to succeed. To achieve. at Blakes briefly before moving to Norton Rose in November The most obvious, and the “easiest” path to doing so is to 2007. focus on billable hours (read: revenue generation) and client relationships. There is little doubt that those are a necessary Rahool, remarkably, has appeared as lead counsel in the part of any lawyer’s development; we cannot, after all, Supreme Court of Canada four times in nine years of practice, survive without clients and revenue. including on such diverse matters as Cuthbertson v. Rasouli (discretion of physicians to withdraw life-support) and NS There’s another way aside from billable work: give your time v. Her Majesty the Queen (removal of niqab during cross- away. Like, for free. examination). Rahool developed a pro bono practice early in his career, and has worked hard to maintain it while building This means writing, speaking, and pro bono work. Focusing his commercial litigation practice at Norton Rose. Doing so on long-term vision over short-term targets has the added has provided him with advocacy experience that is far beyond benefit of producing happier, more well-rounded lawyers. his years, while also being personally fulfilling. His efforts Both of us write, speak and participate in matters not related have contributed significantly to the career success that many to billable hours as much as possible. One of the most young lawyers desire: he was admitted to the partnership at enjoyable efforts for each of us was submitting articles for Norton Rose in 2014 after 7 years at the Bar. consideration for TAS’s Stockwood Prize (deadline March 31, 2016). Writing helps develop knowledge and expertise, Law: It’s Not Just A Business and also builds profile, which in turn helps to get speaking or teaching engagements. Writing has worked for us, and There is huge pressure on young lawyers today to service their we encourage you to invest your time in competing for the firm’s clients and generate revenue via billable hours. Many Stockwood Prize. young lawyers feel that the only way is to bill more hours than the person next to them. There is also an expectation in It may be seem counter-intuitive to build your career by giving many firms, and that young lawyers place upon themselves, time away, but it works. Consider the excellent examples to attend client and firm events in order to build and foster Lucas Lung and Rahool Agarwal have set in developing pro relationships with clients. bono practices. This focus on revenue and client relationships may reflect Lucas Lung, Lerners LLP a broader trend toward seeing the law as a business, not a profession. We are a helping profession. We help one another Lucas Lung was called to the Bar in 2006 after articling at with research, and have a duty to serve the community as McCarthy Tétrault. Lucas then practiced at McCarthy’s for a whole. But we also need to pay the rent and our hard- two years, before leaving for the Community Legal Clinic of working staff. Simcoe, Halliburton and the Kawartha Lakes as the Dickson Fellow and Clinic Staff Lawyer. Lucas’s decision to leave We would respectfully raise a note of caution about the the towers of downtown Toronto for a community clinic in focus on billable hours and client/ revenue generation to a rural setting seems like a counterintuitive career move. which it gives rise. We suggest that approaching the law as However, while at the clinic Lucas regularly appeared at all a profession, to which one has something more than billable levels of court in Ontario, in a wide variety of proceedings. hours to give, will not only better serve the public but also He returned to Toronto in 2010 to practice at Lerners LLP, lead to greater personal success and satisfaction. So, don’t where he has devoted a remarkable amount of time to pro bono hesitate: give it away for free—write, speak, do pro bono matters. Lucas had the firm’s support, but he also understood work. that grinding out 2,000+ billable hours/ year wasn’t the only Keeping Tabs | February 2016 | Page 3 ARNUP CUP

ARNUP CUP 2016

SAMUEL GREENE AND MALINI VIJAYKUMAR, UNIVERISTY OF TORONTO FACULTY OF LAW, CLASS OF 2016

A car crash. A wedding reception gone horribly wrong. A secret affair. A child custody battle. All part of the facts of R v. Julie Langis, the mock criminal case for this year’s Arnup Cup trial advocacy competition hosted by The result? A resounding success, in our using exhibits; developing a style that Advocates’ Society and sponsored by view, for all involved. feels natural. All things that no doubt WeirFoulds LLP. take years to master, but we think We learned a great deal during their mentorship has given us a solid On February 5th and 6th of this our weeks of preparation, as well head start on that path. The same is year, students from six Ontario law as at the competition itself. Our equally true of the other competitors schools—including, for the first coaches—Jonathan Shime and at the Arnup Cup—all beneficiaries time, Lakehead University—came Megan Schwartzentruber of Cooper of a strong culture of professional together to compete for the right to Sandler Shime & Bergman LLP— mentorship. Thank you to The represent Ontario at the Sopinka Cup were invaluable teachers, helping us Advocates’ Society for helping make national trial advocacy competition in develop our advocacy skills beyond this an experience we will never forget. Ottawa this March. We represented the foundation laid in our law school the University of Toronto and were trial advocacy class: Finding the right Overall, a fantastic competition and a fortunate enough to win and secure a theme and theory; dealing with chatty great weekend. We’re looking forward spot in the Sopinka Cup, along with or uncooperative witnesses; effectively to competing in Ottawa in March! the second place team from Osgoode Hall.

It was a tremendous experience. Justice Clayton Conlan of the Ontario Wine and Cheese Superior Court of Justice presided over a series of half-day trials replete with the Bench with drama, humor, and vigorous advocacy. Every team prepared Mix and mingle with Judges and Masters. intensely. Our competitors showed Tantalize your palate with wine tastings talent and creativity as effective cross- and artisan cheese pairings. examiners and clever trial strategists. The witnesses—law students with Thursday, April 21, 2016 acting backgrounds, for the most 5:30pm - 7:30pm part—played their roles brilliantly Campbell House, Toronto as the seedy, rough-and-tumble cast of characters. Senior members of The Advocates’ Society played the dual Click here for more information roles of assessors and jurors. The net Keeping Tabs | February 2016 | Page 4 it explicitly recognizes that the images were prejudicial. However, A recent and notorious case involving the misuse of images at the outcome was determined by the test for overturning a convic- trial, In re Pers. Restraint of Glasmann,25 explicitly recognized that im- tion, acceptance of the presumption that juries will obey instruc- ages have a greater effect than oral statements. The combination of The Advocates’ Society Awards tions, and the overwhelming evidence. The result underscores the the two results in a greater overall impression, involving both be- need for lawyers to observe ethical standards in advance because lief and recollection. The precarious line for fair trials appears to it should be immediately apparent that it is unacceptable to know- be to try to select images to increase recollection so that triers use ingly or recklessly inject prejudice in the hope that there will be no common sense, human experience and logic to come to their beliefs Call For Nominations & Submissions appeal or that the appeal will be unsuccessful. while avoiding anything that would push a trier to either simply In Dolphy v. Georgia State,21 a prosecutor used an opening statement equate seeing with believing; or draw the irrational conclusion that, presentation that included PowerPoint slides reading “Defendant’s because two ideas are shown together, there is some connection be- Story Is a Lie” and “People Lie When They Are Guilty.” The trial tween the ideas that is not otherwise supported in the evidence.26 judge took immediate corrective action and ordered that the slides be In another case from the State of Washington, State v. Fedoruk, The Arleen Goss The David taken down, followed by an immediate instruction to the jury. the prosecutor was found to have engaged in a number of impro- Dolphy was considered in Watters v. Nevada State,22 a case in which prieties. The court described its conclusion vividly: Young Advocates' Stockwood the prosecutor had included a slide in the opening statement Pow- In legal doctrines, some distinctions seem cut with a jewel- Award Memorial Prize erPoint presentation that included the word “Guilty” emblazoned ler’s eye. Others seem more a work of watercolor, with one shade diagonally across the defendant’s face multiple times. Further, the blurred into another. Although the line between zealous advocacy The Advocates’ Society Arleen Goss Young The Advocates’ Society and Stockwoods LLP image used was a booking photo that showed Watters in a dishev- and improper argument may seem drawn in part in watercolor, Advocates’ Award is presented biennially established the David Stockwood Memorial elled state with blood on him. The court held that the image labelling the conduct at issue here fell outside its blurred zones. The prose- in recognition of distinguished advocacy to Prize to honour the contribution of David the defendant as “Guilty” was not the same thing as the prosecu- cutor’s actions described above constituted misconduct.27 an individual demonstrating the following Stockwood, Q.C., LSM, who served as tor orally declaring that she would be asking the jury to find him This conclusion was based in part on the oral argument and ap- qualifications and characteristics: the editor of The Advocates' Society Journal guilty. The PowerPoint “directly declared Watters guilty.”23 proach during the trial, but also specifically with some of the way from 1991 - 2008. For a number of obvious reasons, it is generally accepted law that a PowerPoint was used to punctuate and emphasize the otherwise A record of innovative and passionate prosecutor is not permitted to state a personal opinion about the guilt problematic prosecution. For example, in this case the defendant advocacy; a demonstrated concern for and The Advocates‘ Society will award a prize contribution to the advancement of social of $1,000 to the author of a previously of the accused. However, it has been held repeatedly in the United did not call a defence to rebut some of the state’s evidence, and this justice; a well-rounded person actively unpublished, advocacy-related article States that the dangers arising from inappropriate oral statements be- was then described as “agreement” by the prosecutor. involved in and committed to his or her judged for its merit by a panel. The come aggravated when visual information is used to supplement and Audio and video can be easily modified and edited using readily community; engaged in the practice of law winning submission will be published in create a stronger prejudicial impression on the trier of fact.24 available software tools. The issues associated with such modification for 10 years or less with a principal focus on The Advocates’ Journal. In recognition advocacy, and a member in good standing of the effort David made to advance the of The Law Society of Upper Canada. careers of younger members of the profession, we particularly encourage Arleen A. Goss passed away on December submissions from lawyers in their first 10 10, 2002 at the age of 40, after a lengthy years of practice. battle with cancer. She practised initially as a defense lawyer in the firm of Stern & Goss Articles must be a maximum of 3,500 and then, for the last five years of her life, as words in length, submitted electronically in an assistant Crown Attorney with the Ministry Word format. Please include name and of the Attorney General of Ontario. She was contact information. an enthusiastic member of The Advocates’ Hunter Litigation Chambers is pleased to announce Society, active in educational and social The award will be presented at the End of that the Honourable Marshall Rothstein, Q.C. has events for young advocates. Arleen is Term Dinner on June 16, 2016 in Toronto. remembered for her passion for the law and joined our firm as Associate Counsel. for the energy with which she lived her life. Submission deadline: March 31, 2016

Please include a brief outline of the He will practice primarily as an arbitrator on complex candidate’s activities that merit the award, commercial and public law cases, although he will a curriculum vitae, and at least two letters in support of the nomination. also give legal advice and opinions.

The award will be presented at the End of Term Dinner on June 16, 2016 in Toronto.

Nomination deadline: March 31, 2016 About Hunter Litigation Chambers: Hunter Litigation Chambers is recognized as one of Canada’s leading boutique law firms. Its lawyers practice a broad range of litigation matters, including complex commercial litigation and arbitration, public and administrative law, employment and criminal law, at both trial and appellate levels. The Please forward nominations to: firm and its senior partners are consistently rated in peer review publications as leaders in their fields. Based in The Advocates’ Society, 2700-250 Yonge Street, P.O. Box 55, Toronto, ON, M5B 2L7 Vancouver, its 23 lawyers provide a range and depth of experience to successfully undertake the most complex Electronic submissions are encouraged, to [email protected] litigation challenges. To learn more visit www.advocates.ca

Keeping Tabs | February 2016 | Page 5

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866703-1 INTERVIEW fulfillment at work. Terrible for at, but I’m going to say my mother. She cocktail parties. used to be a lawyer, but hasn’t been for nearly 30 years, and it’s not really What do you dislike most about your EMILY KIRKPATRICK, her lawyer-ness that I admire. What appearance? Hunter Litigation Chambers I do admire is that she’s extremely I’ve been told that I don’t hide my disciplined and hard-working, and Vancouver, BC thoughts/feelings well. This has that she values the fact that she gets to been expressed as having a baseline have a legal career that is interesting expression of distain on my face at all and challenging and fun. She’s also an times, among other phrases. amazing mother and grandmother. Which talent would you most like to What is your greatest extravagance have? in your everyday life? Any. I would like any talent. Coffee. Specifically, from Thierry, the coffee shop in my office building. I Who or what is the greatest love of would say the coffee is overpriced. your life? In fact, I will say that. Except that it’s It makes me a bit nervous to answer Why did you become a litigator or better than anything I can make at any this without the benefit of my whole advocate? price. So, not really an life behind me, but my family seems It was really a two-step stroll along the extravagance, if you like a safe bet. path of least resistance. I was finishing think about it. an undergraduate program in history, and I wasn’t creative enough to think of What is your favourite drink? anything other than grad school or law I’m going to say red wine. I am pregnant and haven’t had red wine school to do next. Based on my research What is your favourite journey? for months, but I’m pretty sure I still (read: vaguely created impressions), Travelling from the mainland to my really like it. Iced tea is also important grad school required a lot of applications family’s place on the Gulf Islands. to me. But I’m very picky about my with original ideas (bad!) while law And I’ll be honest, doing that not- iced tea and will not drink it if it school just required me to do a long by-ferry or not-by-ferry-with-small- doesn’t meet my exacting standards. test filled with diverting logic puzzles children improves it further still. (good!). Once I finished law school and The same cannot be said for me and wine. had to pick what kind of lawyer to be, Which words or phrases do you most I liked litigators—they were smart, and overuse? From whom have you learned the they thought talking about ideas was Does eye-rolling count as a “phrase”? most about the practice of law? fun…. Also, I don’t think anyone offered Also, I likely swear too much. Other I consider myself to have been me a solicitor job. than those, I’m sure I have catch- enormously lucky to have worked phrases that annoy those around with and to continue to work with Which word do you prefer: litigator or me no end, but I don’t know what some amazing lawyers. But great advocate? they are. Probably because any time lawyers can be hard to learn from They are both lovely words. I don’t use someone tries to point one out, I because they make it look easy. On either very often to describe myself, if unleash a tirade of expletives and eye- balance, I may have learned more that’s what you mean. rolling. from observing poor advocacy. I’m grateful; so much so that I won’t name What is your year of call? What would you consider your those people. 2009 in Ontario. 2012 in BC. greatest achievement? My kids. But not, like, the fact that If you weren’t a lawyer, what would What is your greatest fear in practice? they exist. Mostly, the times when you be? Calls from the Law Society. Obviously. they make legitimately well-timed, I don’t know, paralyzed with well-constructed jokes. What is your idea of perfect lawyerly indecision and writer’s block, trying to come up with some original ideas happiness? What is your favourite case? to put into a grad school application? Finishing an argument and never The ones I work on. I’m really thinking about it again. good at convincing myself of the What is your most marked entertainment value of all the cases characteristic? Which living lawyer do you most I work on. Great for day-to-day admire? An ability to say things that others I don’t think this is what you’re driving find socially awkward to articulate.

Keeping Tabs | February 2016 | Page 6 INTERVIEW cont. indication, that person is cleaning What is your favourite legal word? up these days. People seem really “Hot-tubbing”. As applied to experts. excited to shell out cash in service of Its use has never failed to bring me joy. Also known as not always keeping the idea that they might possibly do my mouth shut in the face of common some standing typing one day and What is your motto? sense. But who wants their most need to be equipped accordingly. I’m pretty sure people who claim to marked characteristic to be a negative? have mottos aren’t being honest. What is something that you said What do you most value in your today? friends? “It’s nice to see you again.” Humour, kindness, intelligence, YASC Fireside Chat courage, patience…. You know, all the What is something someone said to things everyone answers that sound you today? on Advocacy: like they’re objectively discernible “Yeah, nice to meet you too. Oh, I qualities, but totally aren’t, which is mean of course—see you again. It’s with Stephen Grant, LSM why everyone has different friends. nice to see you again. Sorry, I’ve made this awkward. It really is nice and Sheila Block, LSM If you could have one superpower to see you again though.” what would it be? The ability to control time. And based on What did you overhear today? my incredibly nuanced understanding “Hey man, remember those of quantum physics, I think all that nunchucks I leant you?” Actually, stuff about the recent confirmation of I’ll be honest, that wasn’t today. It’s gravitational waves means we’re one just my favourite sentence I’ve ever step closer to making my superpower overheard. I re-overhear it every day a reality. Thanks, science! in my heart. Monday, April 11, 2016 If you were to die and come back as 5:30pm - 7:00pm a person or thing, and if you could choose, what would it be? Campbell House, Toronto Whoever invented those standing desk situations. If my office is any Click here for more information

Upcoming Events

Trivia Challenge for YASC Pub Night Wine & Cheese with YASC Pub Night Junior Counsel Forum Charity (Toronto) (Barrie) The Bench (Toronto) (Toronto) (Toronto)

March 22, 2016 March 30, 2016 April 21, 2016 May 12, 2016 May 13, 2016

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