0:00:00 Mohamed Khimji: And so, before turning it over to the Corporate Law Club to formally start the event, I just want to thank the class of 1980 who provided our Business Law program with a very generous gift, and what it's allowed us to do is set up an endowed fund that supports a number of initiatives that we've started in our Business Law program, and I'd just like to list them. We have the Law '80 Lecture in Business Law, which is an annual lecture series that brings in emerging international business law scholars to present their work, and this year's Law '80 Lecture is actually coming up on March the 4th, and we have Sarath Sanga coming in from Pritzker School of Law of at Northwestern University, and he'll be presenting on Network Effects in Corporate Governance, and that's coming up March 4th.
0:00:48 MK: The Law '80 fund also allows our students to participate in the Transactional Law Meet, which is an annual competition designed to develop transactional lawyering skills in our students. And Queen's actually... The Law '80 Fund allowed Queen's to become the first Canadian law school to participate in this competition last year. And then also, of course, we have this event, which is the annual Law '80 Careers in Business Law series, which invites leading members of the practising bar to come in and share insights about career development with our students. It's a wonderful opportunity for our students to connect with leading practitioners, and also to get a sense of what a successful practice might look like.
0:01:27 MK: So the theme for this year is corporate litigation. We have three of Canada's most prominent litigators here, Erin Hoult from Blake's, Paul Steep from McCarthy's, and Kent Thomson from Davies. I'm personally delighted to Erin here, because Erin is actually a former student of mine, she was in the very first law school class I ever taught, Business Associations at Dalhousie, and then Kent and Paul are two of our most distinguished graduates, Paul fittingly from the class of 1980, and Kent from the class of 1982. We're delighted to welcome them back to Queen's. And so, it's the class of 1980 that makes all this possible, we're very grateful for their support. So now, I'll turn it over to the Corporate Law Club to start the event. Thank you.
0:02:12 Speaker 2: I just wanna quickly reiterate Professor Khimji's thanks for the Law '80, they make this event happen every year, and we're really thankful for that, but I also wanna take the time to thank Professor Khimji, he's been a great supporter of the Club, and really, the driving force behind this event. So we're really thankful for him and he has had a busy year with a new addition to the family, his time away at Yale, and really striving to get the Business Law program here at Queen's up and running, so the last thing he needed was Colette and I storming his office, and eight e-mails asking what preferred shade of blue he wanted for the poster. So we thank him for his patience and support, and yeah, we have a great panel today, so don't wanna waste any time, and I'll introduce our two moderators, two other club members who will lead the discussion today.
0:03:03 Speaker 3: So again, we'd like to thank our panelists very much for taking the time to be here with us today. We'd like to start off with some questions that we have for our panelists, and then, at the end, we'll make sure that we have time for any of you to ask any questions that you might have for them. So just to start, we'd like to look into... Hear a bit more about your path and how you got here, and why you chose to specialize in corporate ligation. We'd like to hear from all of you, perhaps starting with you, Paul.
0:03:33 R. Paul Steep: So I thought this was a pretty interesting question, because I couldn't pinpoint a moment in my career when I decided to do something, and I did lots of different things when I was a young lawyer, so what I would say is that it was probably a series of very small decisions that ended up in one direction. First of all, some interests in law school.
0:04:15 RS: Secondly, and this is hard for students in this day and age to appreciate, when I arrived at McCarthy's, nothing was particularly organized the way it is now. I was allowed to do trials before I had seen a trial, and so I got my experience really through a very ad hoc type of education, in criminal courts, in civil courts. But I suppose, gradually, there's a couple of things that just happened. First of all, the firm is a business law firm, so the revenue streams come off business law, so there were lots of opportunities, particularly around corporate M&A and securities ligation. And I would say, speaking for myself, that I was lucky, because I just happened to be there when partners were looking for litigation assistance on those transactions. Very stimulating, intellectually challenging. You were really doing something, especially on the transaction side, in making a deal happen.
0:05:46 RS: So those were all things that really galvanized me, and... So more and more, I ended up in that sphere, until that was really all that I did, but if you looked at my early career, I was doing all kinds of things that had nothing to do with commercial law.
0:06:15 Erin Hoult: Do you have a preferred order?
[laughter]
0:06:19 Erin Hoult: So I always knew I wanted to be a litigator, and so for me, it was a process of elimination about figuring out what kind of litigation I wanted to do. When I was at Dal, we were lucky enough that, in third year, they let you go and clerk for a week with a judge of the Nova Scotia Court of Appeal, or a Superior Court, Supreme Court there, and the judge that I clerked with for a week had been a family lawyer and told me a story about one case where she litigated over Tupperware, and I had already suspected that I did not wanna be a family lawyer, but was quite certain after that experience.
0:06:53 EH: So when I went to apply for summer jobs, I applied to the big, mostly the biggest firms in the city, and looked also at some litigation boutiques, but because I didn't have a particular interest for practice, I wanted to go somewhere big and find my way through trial and error and seeing what I could get my hands on and what I would like, and that's what I did at Blakes, and some of my colleagues ended up specializing in things like our product liability group or things like that, and I found that I was most interested by the variety of cases in the commercial sphere where I worked with a variety of clients, a variety of substantive areas of law, and was not sort of deeply specializing in one area of practice that appealed to me. I think of myself as a Main Street lawyer on Bay Street. You just kinda handle what comes in for your stable of clients, which, as Paul says, is corporations.
0:07:51 Kent E. Thomson: So my answer is, it is pure happenstance, and that's the truth. So first of all, I'll tell you a little bit about my career. So I started at Osler's, articled there at a practise at Osler's for a year and a half, then recruited to join the litigation group at Torys, practised there for about 17 years, and then was recruited in 2001 to become the head of the litigation group at Davies, and I've been there since, so I've been at three of the major law firms in the country. So it takes me really back to my days at Osler's and here's the truth: I came from North Bay, I came from an extraordinarily modest background.
0:08:33 KT: When I graduated from both undergrad and law school at Queen's, I was so buried in debt I just couldn't see straight. I was just literally collapsing under the weight of the debt that I had to get through school, 'cause I had no support from the time that I left North Bay onwards, and I really needed a job, I just needed a job, I needed gainful employment. And I left law school in 1982 at the time of a significant recession, when jobs were hard to come by, and I fell into it, so when I started at Osler's, my first rotation was tax. I could quite cheerfully have been a tax lawyer; I loved the tax group, I loved the intellectual challenge of it. My next rotation was litigation, working a great, big, massive interesting file with a guy named Ed Sexton, who was the head of the litigation department at the Osler law firm, involving the counterfeiting and theft of a game that Nintendo had come up with, called Donkey Kong.
[laughter]
0:09:37 KT: And there was a group of... A network of counterfeiters in Toronto were taking that game and stealing it, replicating it, and selling it, so we hired a team of private investigators to infiltrate the counterfeiting ring, and then we applied for an Anton Piller order to allow us to go in and raid the premises of, I think, 35 premises in Toronto, all simultaneously, so it was a great case. At the end of that case, Ed Sexton spoke to me and said, "Look, I love you, I want to work with you, I don't wanna have to fight over you at the end of the year, so if you will guarantee that you will come back in litigation, you've got a spot." And to me, that was security, that was get out from a mountain of debt, and I immediately said yes, and I've never looked back. That's how I became a litigator. I had no pre-ordained desire to be one, I really needed a job.
[laughter]
0:10:29 Speaker 7: Alright, so our next question focuses on what your day-to-day litigation practice looks like. If you guys could give us a bit of an idea of how much time you spend in court versus prepping documents or meeting with clients.
0:10:41 KT: You go first, Erin?
0:10:43 EH: Sure. There isn't... I guess I would say there isn't a typical day, certainly if you're in trial or something like that, that's all your day looks like, meeting with your witness for the next day, or in the coming days, and preparing whatever submissions you have to make in court the next day and then being there and conducting your examinations. For me, it's cyclical, it depends where your cases are at. If you have a bunch of cases that are at discovery stages, you may spend a lot of time doing office work and preparing on your own, and then, when you're in trial, much less time in the office.
0:11:16 KT: Yeah, I agree with that. I think I spend probably a bit of a disproportionate amount of my time in court. I try a lot of cases and I also do a fair amount of appellate work, so I spend a pretty significant proportion of my time either in court or preparing for court, and Erin's exactly right that if you are at trial, or you're preparing for a trial, it is a completely all-consuming exercise. Trials are all about hard work; everything else being equal, the person who works the hardest will win 100% of the time. And so one thing that I guess I have always prided myself on is, I think I'm physically impossible to outwork, 'cause I just, I'm too competitive, and I just will work until I have to to get something not right, but as close to perfect as I can make it, and that means if you're in the middle of a trial, working, without exaggeration, you're typically working 18, 19, 20 hours a day, usually seven days a week, and so you're subsumed in the case.
0:12:18 KT: The reality is, you have to live a life where you can recover from those experiences, and the longer those trials are, the longer it takes to recover. You can't... Paul and I had this chat a few months ago. Most of the time, when we both do the same thing, we go back to back to back trials. I've had moments in my life, including a couple of years ago, where I was doing two trials simultaneously, and ended up doing closing arguments in the first trial Monday to Wednesday of a week, and the other trial, Thursday and Friday of the same week. That's the kind of experience that sort of sounds like fun, but it's not actually all that much fun, because you sort of feel like you're about to die...
[laughter]
0:12:55 KT: Just from the weight of it, but if you have those experiences, the reality is, virtually every minute of every day is spent either preparing for court or in court.
0:13:06 RS: Yeah, so I can be brief, it's variable. At this stage of my career, I spend a lot of time in court or at hearings, there's a lot of work in commercial arbitrations. I do try to avoid what I used to do quite regularly, which is book back to back to back, although sometimes you can't avoid it. So if you looked at my calender, you'd see a lot of things that look like they overlap, where I'm going to be in one courtroom and I'm also supposed to be in another courtroom or on another hearing, and I can only tell you that we're trying to get a sense for how you can do this and still escape, because things will disappear, some things will settle, some things will get adjourned for reasons that have nothing to do with you. It's an art, not a science.
0:14:06 RS: I was supposed to start a trial today, but I committed to come here on the fourth. It turned out okay, so it's quite variable. Obviously, at this stage of my career, I have a lot more control over what I take on and how it's organized than I did when I was sitting out there on the intake end of the big firm. And then I'd agree with Kent's observation, it's really a 24 hour a day task when you're doing trial and appeal.
0:14:56 S3: That's fantastic. To get further into your practices, we'd love to hear what is the most exciting aspect of your job, and what's the toughest?
0:15:08 KT: The most exciting aspect is being on your feet in a courtroom, whether it's the Supreme Court of Canada, which is the most exciting, for obvious reasons, or whether it's being in the Court of Appeal, or being in front of a trial judge, picking up on something Paul just said, or being in front of the Ontario Securities Commission, I do a lot of work... Or being in an arbitration. The reality is that when you're on your feet, whether you're in front of a judge, a panel of judges, panel of experienced senior arbitrators, or you're in the Supreme Court of Canada, the feeling is largely the same. Park Supreme Court in Canada for a moment, 'cause that's a bit of a different experience, but if you're on your feet, you're on your feet, and the kinds of cases that all three of us deal with are all... They tend to be large, complicated cases involving high stakes, whether it's high financial stakes, or high reputational stakes, or a combination of the two.
0:16:12 KT: Clients don't come to Blakes or McCarthy's or Davies, paying us the ridiculous fees they pay us, because they have simple cases that anyone can do and can do relatively easily, they tend to come to firm like ours because they've got significant problems and they need help. Those are the kind of cases that, and I say this to clients all the time, and I really mean this, that... I can't guarantee a result from the case, but the one thing I can guarantee to any client is I will always care more about their case than they do, always, just because it's in the nature of what we do. If someone entrusts you with a serious high-stakes case, you will literally break your back if you have to to try to do whatever you can to possibly win the case, within the bounds of propriety and reason. So short answer is, being on your feet, and it doesn't almost matter where.
0:17:13 EH: Do you wanna know what the toughest part is? Is that what you... We're supposed to answer? Unfortunately, the answer for me is the same as for Kent, it is being on your feet, although there are plenty of litigators that don't say that, which I always find strange, that they really get nervous before court in a way that I don't think I could handle, but I would say if you like being on your feet, then that's a pretty good indicator that you may be suited to litigation. I agree, it's great to be in front of appellate courts. I particularly like dealing with witnesses, because no matter what you do to prep your own witnesses, or to prep for cross of another witness, something will not go the way you expect. Judges are a little easier to predict than regular witnesses, and so being prepared for an appellate court hearing, or even for submissions at trial, is sometimes a little more linear than dealing with witnesses, so I find that the most exciting part.
0:18:04 RS: Well, I'm not gonna depart from the script, but I'll give you two slightly different takes. One of the toughest jobs is when you have a witness that you know you have to destroy on a cross examination, it's pivotal to the case, and so that's a tough job. I had one in the fall, and I used to think about it, walking around our neighbourhood, walking the dog. "How will I do this?" And I had about 20 different ways that I'd think about how we were gonna turn out, and then when the day came and I did it, I probably did something that I hadn't probably thought about in all of those times, but when it works, that's really satisfying. Then the other thing I would say, or what's a really interesting thing about the job if you're a litigator, and a judge told me this one, a Court of Appeal judge, and I thought it was dead on.
0:19:15 RS: Speaking for myself, not for my two friends, I'm sure I suffer from ADHD, so the 20 minutes when a client first comes in and starts to talk to you about a complex problem, no matter what else you have on your plate, I don't know about you two, but I'm totally distracted by that. It's just so fascinating, and you wanna figure that out, and that is just a tremendous thing about our job, is that in 30 years, very few things replicate themselves, and you think that they would, but they don't, and so it's intellectually satisfying every time someone comes in with one of these problems for you to figure out.
0:20:04 KT: Just to fit in one last thought, particularly young lawyers, but honestly, it doesn't matter how old you are, in terms of the most difficult aspect of a job, for me at least, it is one of two things or both, and if they both happen to collide in the same case, then it's a bit of a disaster. So dealing with difficult opposing counsel can be a significant challenge, and luckily, because of the kind of law we practice and because of the kinds of cases we do, I tend to encounter those sorts of lawyers rarely. Most of my work is done with people like the people to my left, and they're great lawyers and they're tremendous people, and there's never an issue dealing with them at all, but every now and then, you get an outlier that will come into the world that we live in, and it can be almost soul destroying to deal with someone that just doesn't observe the rules, can't or won't act ethically, is intemperate, is... Everything's a fight, there's no cooperation.
0:21:05 KT: That kind of thing can really eat away at you over time, and so that's an issue, and it's particularly an issue, I think, for younger lawyers, because there are... The reality is that there are some more senior lawyers that don't respect the less senior members of the bar. They can behave like bullies and they can be difficult to deal with, so that's something that you have to wrestle with. And then, the thing that's actually the most corrosive is dealing with difficult, intemperate judges, people that just don't get it, don't understand that they occupy a privileged position, and they can be cranky, they can be miserable, they can be rude, they can be obnoxious, they can stop listening, they're not working to achieve a fair result, they've got a pre-determined result that they're looking to achieve.
0:21:54 KT: And anyone who's ever been in a courtroom will tell you, those people are out there, and when you run into them, that can be extremely difficult, extremely... And Paul and I had this chat in the cab in the way in from the airport about one particularly difficult, notorious judge, and every now and then, you're gonna run into them, and when you do, you have to find a way through it, but it can be really, really difficult.
0:22:18 EH: I think another tough part of the job, harkening back to Kent's answer earlier about working 18, 19, 20 hours a day, it's a service industry, and there are aspects of the job that are just as hard as when I sold children's clothes on Granville Island in Vancouver. Unhappy customers can be difficult to deal with, they can ask for things that are unreasonable, and especially when you're trying to build your practice and be a go-to resource for someone, you sometimes get the Friday afternoon dump from the in-house counsel who thought they'd do it themselves to save on their budget, but now they can't and now you have to do it. And part of building your brand and reputation and client relationships does take a toll on your work-life balance, whatever that might mean. And frankly, depending on your age and stage and family commitments, your gender, your family background, it can be a lot harder to put in the hours. And so you do need a support system around you if you're gonna run a trial 18 hours a day, so that is a real challenge at certain points in your career.
0:23:34 S7: Thank you for all of those answers, very insightful. Our next question focuses a bit on how each of you collaborate with transactional corporate lawyers within your firms.
0:23:48 RS: Well, I didn't want to work with M&A lawyers, then again, I would regard myself as being particularly fortunate in the sense that they came to the litigators very, very early in a transaction. Even when they didn't see litigation on the horizon, the number of times that I had conversation with an M&A partner who'd say, "Paul, I don't think anything will happen on this transaction, but I wanna walk you through where we are, what we think the pressure points are," and then, of course, three months later, there would be a real donnybrook at the Securities Commission or in Commercial Court. So I think, in all of the great business law firms, there's a collaboration like that very early on, and you work with them almost as if you're a member of the deal team, or whatever the assignment is.
0:25:10 RS: So you can't do these things on your own. From just a litigation perspective, it's... It might be not possible, so there's a real collaboration. Now, a couple of weeks ago, I had to speak at a retirement dinner for Gary Girvan, who I know Kent will know and Erin may know, he was the senior M&A lawyer at our firm. And so, when I was... Actually, you were on the other side. That I was recounting some deals that we did together that were contested, and lighthearted answer, when I was talking about this issue of how we collaborated together doing work. I said, "Of course, when you're working with an M&A lawyer, litigator's just a hired hand, kind of like the guy who washes your car. He wanted to do a good job, but hey, it's your car, he's not gonna get to drive it."
0:26:13 RS: So there's a little bit of that when someone has got a deal, and I know the M&A lawyers at both your firms very well, they're very controlling.
[laughter]
0:26:26 RS: But...
0:26:28 EH: Not like litigators.
[laughter]
0:26:30 RS: Yeah. I think the best of them find a way to integrate the work with their litigators so that it's seamless.
0:26:41 KT: So I'll give you a real life example. I agree with everything Paul just said; the reality is, you're... In the right case, you're working as a seamless team, and you realize that they have a profound amount of expertise and experience that, as a litigator, you just can't match because you're always flitting in from one case the next and you're not gonna live on the fine point of the interpretation of some provisions of the Securities Act that you'll see once in your life, and they'll see 35 times, so taking advantage of that expertise is really important.
0:27:18 KT: So here's a real life example: Just a very significant case you may have either studied or read, or perhaps you will before you graduate. But the BCE case, which is a case involving the proposed privatization of Bell Canada Enterprises, BCE, which is the largest communications company in Canada, and a transaction it was engaged in in 2007 that, if it had been completed, would have been the largest leveraged buyout in the history of the world, and it was the largest corporate transaction in Canadian history, it was a $52 billion deal, and a transaction where one of my corporate partners came to me very early on, right at the very outset of the earliest possible days of that transaction to say, "This is the nature of the deal. No matter how you look at it, because the stakes are as large as they are, litigation is virtually inevitable." And from the minute we had that discussion, I became an active part of the deal, so I was involved in every single step along the way, just trying to mitigate the litigation risk.
0:28:23 KT: I attended probably nine meetings of the board of directors of BCE along the way, considering the transaction; I was involved at the very end of the day when the transaction was papered and completed; and then litigated the transaction in the Quebec Superior Court, Quebec Court of Appeal, and Supreme Court in Canada over the next nine months, so that's a case where my involvement probably looked like it started in October of 2007, it actually started in about February, and we worked as a team all the way through. It's a great example of how you can become... Paul's exactly right. They're very much there to advise, very much there to try to strategize on minimizing risks, but not there as the architect of the underlying transaction, because they won't have it and you're not... I was certainly not good enough to do it.
0:29:16 EH: Yeah, I don't have much to add. I think if you are working on a plan of arrangement, or a case that, it's involving shareholder activism or something like that, you're gonna be very integrated with the team, but the other time I find myself working with my commercial colleagues is just run of the mill commercial litigation. If you've got disputes about interpretation of the contract, they're a good resource for phoning up and saying, "Is this market? Look, this is what they're saying this clause means, what are you seeing?" All of that sort of thing. So they can be your own little in-house expert when you're trying to get up to speed in an area you may not have litigated before.
0:29:49 KT: The other thing that I've done several times, which I find fun and the corporate lawyers really enjoy it. Paul, you were involved in a case you and I had, the OSC, the Sears case, where, lurking inside of most transactional lawyers is a wannabe litigator. They wanna be able to actually stand up and make a submission on something, because they haven't done it, it's kind of fun, and...
0:30:16 RS: Looks easy.
0:30:16 KT: It looks easy, that's exactly right. And so you... Paul, you probably wouldn't remember this, but Paul and I did a case on opposite sides together evolving the proposed privatization of Sears Canada. I'm gonna say 2008, 2009, sometime in that timeframe. And I did that case with one of my corporate partners, Patricia Olasker, who is a really, really, really terrific corporate lawyer. Interesting case, it was a high-profile case, moved very quickly, ended up in a mini-trial at the OSC, and we were in the middle of doing closing arguments, and we're holed away in a room at the OSC, and I turn to Patricia and said, "Are you happy?" And she said, "Sort of," and I said, "Okay, what do you mean 'sort of?' What's the issue?" She said, "I kind of hoped I'd have a chance to say something," and I said, "Well, so you want a role? You just got it."
0:31:11 KT: "So address initial remedies," and she was given all of about 45 seconds of advance notice, and she stood up in front the commission, and she did a way better job than I could ever have done. She just knew it like the back of her hand, and she was charming, and she was effective, and she had the time of her life. And since then, I have now tried to give corporate lawyers, at our firm at least, speaking roles in cases to the extent that I possibly can, because they... A, they enjoy it, and B, they're really, really good at it, and they speak with huge authority. They can explain a corporate law point in a way that I never could, because they live inside the point, it's the life that they they have, and they speak with an authority that I, as a paid advocate, I know that I won't have, and I won't be able to do the job they can, and so it works well.
0:32:00 S3: So with the way that you're collaborating more with the transactional corporate lawyers and some of the pressures financially, in terms of going to court, do you see the future of corporate litigation shifting further outside the courtroom as we move forward in the future?
0:32:20 EH: It's an interesting framed question, 'cause I think we're already there, in a lot of spheres, in terms of major disputes, especially when they're between commercially sophisticated parties who are on level footing, being outside the courtroom in part because they prefer it being private, they prefer it being fast, they prefer picking their judge. So to me, I don't know that you're gonna see too much more acceleration of arbitration, because there are certain matters that will always be within the purview of the courts, especially when the opponent on the other side is not someone who is willing to enter into arbitration with you, which is a necessary pre-condition to arbitration.
0:33:00 RS: I think I basically agree with that, but I think there are just a couple of things if you look ahead. Technology is breaking up a lot of established practices, and I assume, in ways that I can't predict for you right now, that that'll happen on commercial litigation front for a whole bunch of reasons. The cost that Kent mentioned, once the cost isn't necessarily solved by arbitration, 'cause arbitration's costly too, but what I mean is that there are bound to be logarithms that are invented which will become dispute resolution-type mechanisms for a lot of disputes. Maybe not for the most sophisticated and complex, but I think your generation will have a challenge, because I suspect that you can see it happening now, in all the professions, not just law, but in accounting and in investment banking, wealth management. So I would expect it will seep into law in a major way before very long.
0:34:24 RS: And I can't predict exactly how it will happen, but I think it will take off the table a lot of things that might have been litigated when I was a young lawyer.
0:34:36 KT: That's interesting, there's a real pushback now from the courts themselves. So Paul, I think you're in it as well, but do a lot of work in a specialized branch of the court in Toronto called the Commercial List. So the Commercial List is a branch of the Interior Superior Court, staffed by seven or eight particularly skilled commercial judges that have the the aptitude, the experience, and the willingness to really get involved in sophisticated high-stakes commercial litigation. And case-manage cases, move cases along aggressively to trial and really be a user-friendly court. And judges of that court and people that are around the edges of that court recognize that as more and more as significant commercial disputes are being pushed into and resolved by arbitration, the common law itself becomes stilted by it.
0:35:31 KT: It has a profound impact on the development of the common law, if cases are decided in private arbitration, where the private arbitral awards are not publicly accessible and can't be looked to as precedence by anyone. And so our judges recognize that. And partly as a result of that, there's been a real move underfoot for the last several years to make the Commercial Court at least, a more user-friendly, more accessible, expeditious, less expensive forum for the resolution of disputes. And what I hope we'll see is that movement really picking up steam and becoming more and more effective and more and more prominent, and taking cases that would have been arbitrated a year ago and shipping them back into the public court system, 'cause we need it. And the judges want it. They very much want to hear these cases.
0:36:20 RS: I would agree with that, though I'll just add one caveat to that. I actually think in the Commercial Court right now, there are only six judges sitting. So this is the other problem. The resources are not devoted, they can't do electronic filing there, the judges don't have any clerks or assistants to help them manage the cases and therefore, to move them along. So if you look at very sophisticated commercial courts, like the Southern District of New York which has all of those things, plus very sophisticated judges. Yes we have it but on a very small scale when you think about it, for a financial center the size of Toronto. So those things have to be solved, or the private market of course will solve them for you. And I think we can see a little bit of that.
0:37:28 KT: You probably know this, but Superior Court judges are appointed by the Federal government, the administration of justice is funded by the provincial government. And therefore the entire administration of justice, Paul's point about, how many clerks does a judge have? What level of technology can the courts bring to bear to allow electronic filings, assisting judges in the case management function? That's all funded by the provincial government. And I'm sure lurking someplace in this audience is the future Attorney General of Ontario. So if you're out there, for God's sakes, fund the system. Judges are desperate for just a properly funded system, and I think it's an enormous shock to the system for people who are appointed from McCarthy's or Blakes or Davies to the bench and they land in a Superior Court and they say, "You're kidding me."
[chuckle]
0:38:21 KT: I've got a one-eighth of a clerk and I got one-sixteenth of a secretary. I've got no one who can type anything for me. I've gotta hand-write my own decisions because I've got no one that can get them out with any degree of speed or efficiency whatsoever. I'm not prepared to let a decision I spent all night working on, sit on my desk for the next 10 days, before some typist in a secretarial pool will actually type the reasons. So, I'll issue hand-written reasons. Now, think about that for a minute. How do hand-written reasons then become part of our precedence system? The answer is that they don't. And so that's the kind of thing that goes on too much. And Paul's exactly right, that if the provincial government won't fund the administration of justice, the market will speak and that shift will continue on as it currently exists.
0:39:09 RS: So I'll just give you one tiny example, following up on that. So, in private arbitration, which is gonna go to arbitration in the middle of October. It's got two barristers from London, European appointment and an ex-Commercial Court judge in Ontario in the arbitration. So in contrast to what would happen in the Commercial Court, those three had us in front of them in December, so that we can talk about technology platforms. And everyone would agree what platform really means. They brought their expertise from others, we brought ours from our cases, talking about, and this was just collaborative, it wasn't adversarial. I hooked up my video conference for the two from Europe, and we talked about our various experiences used in various systems. And now we're gonna go out and get the system that we've agreed on. Every thing will be loaded, everything will be ready to go with their search requirements, all things that the Commercial Court should have but are years away from.
0:40:22 S7: Okay. So our next question is a little bit about what you think some of the most important skill sets are for a corporate litigator, either something you feel that's really benefited you in your career, or something you look for in young lawyers and students.
0:40:37 EH: What do you look for? [chuckle] I think litigator's key skills from my perspective are curiosity, resilience and lateral thinking. If you are someone who likes to find the direct path to a solution, this is not a career that will satisfy you. You need to look under every rock and to try and find the best argument to test them, and to be willing to abandon your theory of the case if better information or worse information comes and challenges it. It is iterative, you will spend time that is completely lost. You've been down a rabbit hole and it's been useless. I think that the willingness to go where the case takes you and the evidence takes you is probably the most important skill for a litigator.
0:41:27 KT: So I start... I'm not really involved in student recruiting process. I'm just frankly too old to be doing that, and they wouldn't let me near the students now if I wanted to, 'cause who wants an old fogey like me out in the recruiting process, so I deal with the people that I am provided with, students and young lawyers. And I start from the proposition that is an exceedingly high level of intellects is table stakes. You don't have that, you're not in the game. And so everyone that I deal with I can bank on being incredibly smart. What separates those that are really successful from those that aren't? It comes down to me to two things. Number one, and this is gonna sound so ridiculous, you almost won't believe it, but it's true, cheerful enthusiasm.
[laughter]
0:42:19 KT: I swear to God. Cheerful enthusiasm will carry you an incredibly, incredibly long way, incredibly long way. Why? Everybody wants to deal with someone who's enthusiastic. Everyone wants to deal with someone that is cheerful and pleasant to be around. So that's the first element, and the second element is being a good teammate, really being a really good teammate, someone that works well as part of a team, someone that will pick up their end of the bargain and run with it. Someone that will be able to move the ball down the field and actually get things done. Someone you can rely upon who will be there for you, and someone that if you say, "Look," and believe me, Paul knows this. I've said to people like, "I need you here at three o'clock in the morning. I've got a cross-examination I've gotta prepare. The trial starts at 10 o'clock, and I can't get this until then."
0:43:16 KT: People who will arrive at three o'clock, not sighing and making you feel like a complete heel for dragging them in at that time of the day, even though it is unconscionable that I do that, but... But people that will make you feel that they really want to be there, that they're there to help, and they're there to help in a cheerful way. In my life, those people are worth their weight in gold, and I love them. People that make me feel like a complete heel, people that make me feel like I'm burdening them by getting them to do something, from my perspective, I will frankly never work with them twice. No, I just won't do it, 'cause my life's way too short and I don't need the aggravation. So that's the tool kit that I'm looking for.
0:44:00 EH: Do you also make people come in at 3:00 AM, Paul?
0:44:01 KT: No, because I go to bed at 9:30.
[laughter]
0:44:06 RS: I'd just add one other thing that I noticed from my mentors, and I had some terrific mentors, which I try to make sure I pass on to those coming up after me, and that's a little bit of humility. And the reason for that is that I'm quite happy to have someone who's working with me actually figure something out, that's smarter than me, that's great. I'll capitalize on that. But it's also how you build teams, because I agree with Kent with having a strong, motivated team behind you. It's critical. And I used to do just a ton of trials, and these guys will know, with Alan Windsor, and I don't think that there's anybody who spent more time in the court with Alan. But Alan's not a detail guy...
[chuckle]
0:45:18 RS: And I can remember when I was just a young lawyer, he would... We'd get in a car to drive out of town to do a trial somewhere. He'd start asking me, "Have you done this, or have you done that?" I hadn't done any of those things.
[laughter]
0:45:34 RS: But he would never be critical. As Kent says, he has this enthusiasm for the case. That's the hand we're dealt. That's the case we're going to try, and you know what, it was a great attitude, and it builds loyalty. You're very loyal to people who treat you like that. Alan was always like that. So I think that all of us, when we're talking about teamwork, should just keep that in mind, because especially in litigation, everything's not gonna move smoothly. There's always gonna be some hiccups along the way.
0:46:25 S3: So, I think that gives some great insight as to some of the skill sets that students can be looking for. But just to think more about what it would be like to practice as a student and as a young lawyer, could you talk about what kinds of files you work on with students, or maybe what aspects of files you typically allocate to students or junior lawyers?
0:46:49 EH: Sure, I am on the Student Committee of Blakes and so that's why these two keep pointing at me 'cause they both confess having no knowledge of what goes on in their student programs at this point in their career.
[laughter]
0:47:00 EH: So, I would say students work on all of our files and it is more of a question, thank you, Ian, of what tasks on each kind of file. Certainly when you're a summer student, an articling student, in litigation you're gonna do a fair amount of research. You may also help prepare for examinations and discovery and things like that, whether that's organizing documents, analyzing documents in an area that we're planning to do an examination on so, sort of a road map, an analysis of where we could go with a witness, that kind of task. But as a student you're doing a lot of research.
0:47:40 EH: Once you start practising you're doing all aspects of the case. Either, if it's a small case because it's in the firm for a big client, you may be running it on your own and just getting oversight from me or you're working with me and or others in the team where we're sitting down and deciding on the strategy of the case and dividing up responsibilities and you'll again do the full gamut of drafting, drafting pleadings, drafting examinations, meeting with witnesses, preparing their affidavits, and doing appropriate submissions in court. So, it sort of develops over time and it does hinge a little bit on the case in issue and the size of the team and where you have to go to do all those various things.
0:48:23 EH: So, to me, it is a pathway of development that sort of starts at student. And if they're out there going and doing interviews and you wanna ask your interviewers questions, sure, go ahead and ask them what you're gonna do as a summer student, but recognize that's four months of your life, and your career is gonna be a lot longer than that. So, think about what you're gonna do as an associate, as a five-year associate, out at 10 years and looking towards becoming a partner. Think about that trajectory 'cause what you do in a summer is not emblematic of what happens in the rest of your career. Your story is a case in point.
[chuckle]
0:49:03 KT: For me, I'm a little bit removed from dealing with students directly on a day-to-day basis but they're involved in every case that I have and what I can't tell you is that I'm constantly encouraging people just to speak up. It's like the old adage, "If you see something, say something." If you're involved a team and you're obviously incredibly smart and you've got ingenuity, you've got the ability to think outside a box, speak up, always speak up. There's nothing like seeing someone sit in a room and stare at the side of your head for 14 hours and you think, "Is this person actually getting what we're doing here?" It's unnerving.
[chuckle]
0:49:48 KT: The people that actually do want to actually play a meaningful role just by contributing, they're worth to me, their weight in gold. It doesn't mean you walk in and take over a meeting with 14 people in it, that would be a little unusual for most students, but it is to say if you've got a point to make, in my world you shouldn't be shy, you shouldn't be shy of making your point. In terms of what students do, it runs the gamut all the way from research to preparing drafts of materials, affidavits, coming to trial. A lot of the trials we do... In every single trial that I do, there will be a written closing argument filed at the end of trial. And what I have students do... And, by the way, a lot of the trials that we do, written closing arguments at the end of the trial, there'll be literally no gap between the end of the evidence and the filing of that written argument. If the evidence ends at four o'clock on Thursday, closing arguments start Friday morning at 10 o'clock, and judges will expect to see the written argument being filed as you stand up to argue the case.
0:50:47 KT: What that means is getting students involved who are at the trial working, assembling that written closing argument during the course of the trial as the trial is ongoing. And they play a really, really, really important role because they sum up in a smart... And to see the evidence and can read a transcript and can synthesize the evidence into a working closing is really valuable. So, students can play a role as important as that, and that's a really important role.
0:51:13 RS: So, it's much the same where I practice. I'll just add one thing. When you're a student, there's some things you can do and some things you can't do, and that's highly structured in this really formal education in all of these programs. But one of the big transitions that firms have made over the last 20, 25 years is that everything really is merits-based. No one is distinguished anymore. "You're a second-year so you can do this, and you're a fourth-year so you can do that." And so, you can't define, and the other thing is, I'm not quite as clueless as Erin would make me out to be...
[chuckle]
0:52:08 RS: Student program. But you don't know if someone is in second year or third year or a fourth year, you only know that they're really responsive, they're learning to a high quality, they've got great insight, great analytical skills, and so you integrate them in your team accordingly, on their merits, how they contribute, so it could mean anything. And if they're really talented interrogating a witness on trial.
0:52:46 S7: So, continuing on our theme of students, what advice would you give to us as students as we begin our career? As well as... Feel free to add anything that you think we haven't covered and would like to talk about.
0:53:00 EH: You have advice?
0:53:02 KT: Well, to me, it's a pretty simple formula, which is... I hate seeing people close doors too early. I think that when you start limiting your options, when you start limiting your alternatives at too early a stage, when you think you know what the practice of law looks like, but you really don't, you've got an image of it 'cause you've seen a few TV shows. I guess people are different now, but again, I grew up in North Bay, I had never met a lawyer, not one ever in my life until I came to Queen's and had two lawyers arrive at the law school when I was in my second year, to do recruiting.
0:53:44 KT: I had no idea what the practice of law actually looked like and I had a very distorted view of what it would look like from the little bit that I knew. I recognized that there's a lot more information out there today than there was when I was at your age and stage, but I would have made some serious mistakes had I limited myself based on my perception of what the practice of law looked like, 'cause it just wouldn't have been right. So there are the odd person, Erin wanted to be a litigator from the age of whatever onwards and she fulfilled her dream and that's fantastic. But most people aren't like that, most people don't know quite what they wanna do.
0:54:21 KT: I have an identical twin brother, and we're very much alike, he is a very prominent, very successful corporate lawyer, transactional lawyer. That tells me I could have done what he chose to do and he could have done when I chose to do, we likely would have both been very happy doing the other thing. So keeping options open, exploring alternatives, pursuing your dreams, whatever they may be, doing the best you can, making a lot of friends along the way, maintaining contacts... A bit of a formula for success.
0:54:57 EH: Yeah, I think my advice to you would be to figure out what kind of learner you are, if that's a word, and try and start your career somewhere that aligns with that. So if you're going to a big firm, it offers, if you're thinking about litigation, is a certain type of learning experience as opposed to maybe starting your career out at a boutique, or in government, or in-house, which is more and more an option these days. I think leave your options open to try all of those things throughout your career, 'cause it will only better you. But I think you need to think about where you feel that you will learn most effectively and develop most effectively.
0:55:38 EH: Because there are pros and cons in joining each type of workplace environment. To the earlier questions about how often you go to court, etcetera, if your goal is to go to court as frequently as possible, you may want to work in an insurance defense firm, or to do as many discoveries as possible, you may wanna go that route. But you will not see the level of cases that Kent and Paul and I are arguing, at least not as regularly as we do in our firm. That if you go to that kind of practice there are different ways to be successful as a commercial litigator and I think you need to think about at which way of being a commercial litigator appeals to you most.
0:56:25 EH: And then, like Kent said, keep your mind open, keep your options open, recognize you're probably gonna move through different places in your career and if you do think that and you don't know if you wanna be a partner one place or another, I would say start at the strongest possible brand you can. Which isn't just a plug for my firm or any of our firms but I will say, I remember being an articling student and being sent to court to try and get documents, or at the very least a copy of a sealing order. Our firm represents the Toronto Star and other media outlets, and there was a court case that had been sealed and so to challenge the sealing order, we needed to get a copy of it. So I was sent to court as a student to get the sealing order. And I went to the counter, and the people at the counter said, "The file is sealed." And I said, "I just want the sealing order." They said, "The sealing order is sealed." I said, "Will you tell me what judge granted the sealing order?" [chuckle]
0:57:18 EH: And after a lot of negotiations they were willing to tell me what judge granted the sealing order, and I remember going into his courtroom and speaking to the register on a break and saying, "Can I jump in? Can I have five minutes to ask this judge if I can have a copy of the sealing order? Because they won't give it to me at the court office." And the register came back from the break, and said, "His Honor has phoned over to the court clerk's office and they're making you a copy of the order." And he said, "You must be very smart 'cause you're articling at Blakes." And he didn't know me from a hole in the wall, and it just stuck in my mind that I had a reputation that I had not earned on my own. He happened to be right. I am very smart, but he didn't know that.
[laughter]
0:58:00 EH: He just knew I worked at Blakes. And so I benefited from that at the start of my career and throughout, and I think people that are working with Kent and Paul in the same position.
0:58:12 RS: So my advice will be pretty similar. One of the things that I find so extraordinary about your generation is how everybody's been building their resumes since nursery school.
[chuckle]
0:58:27 RS: And I don't mean to sound cynical, because I worked with loads of young people and I know they've worked very hard to get where they are, and are able to do some extraordinary things, but my advice would be, you can learn from all kinds of people. I had a law clerk for the better part of 20 years who came to work at McCarthy's when she was 16 years old as a... What would then be referred to as a secretary. And she gradually became a jack-of-all-trades, so she was clerking to some really extraordinary lawyers and spending a huge amount of time in court with them. And I would never finish a cross-examination or an examination without leaning over the mark and saying, "Is there anything that I've missed?"
0:59:34 RS: And she gave me some of the some of the best questions I have ever asked a witness. And there's no reward in McCarthy's for excellence in [inaudible], but you can learn from all kinds of people. And it can take you in all kinds of different directions, so you should keep a very open mind. And some of the best trial lawyers that I've ever run across who are just brutal to come up against, haven't been near the doors of a major firm on Bay Street ever, they're practicing out in county towns and they do a dozen trials every time there's a sitting. So you can learn so much from people that you might overlook if you're just building a resume.
1:00:32 S3: Thank you very much for those insightful answers. We're now just gonna shift and take some questions from the audience.
1:00:42 EH: Quiet group.
1:00:46 Speaker 8: You spoke a little bit about creating international lists with lawyers from different countries, are there any attributes that you would say for that kind of work?
1:00:58 RS: Well, I can tell you that my one recent experience, and I know a lot of people who watched it would agree. We did the Nortel trial, we were appearing in Toronto, and Delaware. And all the big US firms were on that case. And the Canadian lawyers were uniformly better in the courtroom than any of the Americans. So that's just one observation I did make. And I think the reason for that is that there is still much more oral advocacy in this country than there is in the US. They're used to 15 minutes on abortion, 15 minutes of the court of appeal. Because they can pose everybody in advance. They're not used to the hearing stuff for the first time in the witness box. So I'll these others speak, that's just one observation I will make.
1:02:11 EH: Yeah, more of my experiences in dealing with lawyers from other jurisdictions have come when they're on the client side or embedded in the case that way. And every time I have a case where the client is in a civil law jurisdiction, they are totally flummoxed by our process, they are almost entirely document-based. And so I remember getting instructions from Belgian lawyers and trying to explain, "No, no, we're gonna have affidavits. And then after the judgment comes out, we're gonna have to agree on the draft order," and all of these sort of niceties of our way of practicing that totally put them off. And so just remembering too, and it's a good advice whether your client is a lawyer or not, but to appreciate that even lawyers don't necessarily understand our process.
1:02:55 EH: I think it's true, even dealing with US Counsel who, as Paul said, get to conduct far more discoveries than we do and just have a totally different view of oral arguments and also written arguments. If you ever get a draft factem from US Counsel, you have to take out all of the slurs against the other side and against the judge below if it's an appeal and say, "I don't really wanna be in the cells when I go to the Court of Appeal, so I'm not gonna say that about the motion, judge." And just kind of prepare them for that. [chuckle]
1:03:26 KT: So about seven or eight years ago, I got retained on an ICC, International Chamber of Commerce arbitration that was seated in Paris. And the details don't matter, but suffice to say it was an urgent mining-related international arbitration and it had to be dealt with quickly, or mining licenses in Africa were about to expire. So it involved witnesses in all of Africa, and in South Africa and in Australia and in Vancouver and kind of all over the world. So I started the case on an urgent basis on a Monday, and on Wednesday, the lawyer on the other side from a major UK firm started the ball rolling by shovelling into the ICC, all of the without-prejudice settlement correspondence that have been exchanged between my client and his from the time the dispute arose onwards.
1:04:27 KT: And something I had never seen before in my life. So I called him, and by the way he lived in the world of international arbitration and I did not. And called him, and he was at a major firm in London, I didn't have his name, I won't give his full name... Let's just call his first name Stewart. I said, "Stewart, we don't know each other, but why in the world, why in the world would you take all of the without-prejudice correspondence between our clients and ship it into the ICC? Under what color of right would you do that?" And he just started to laugh and he said, "You don't do much in the way of international arbitration but this is a world I live in. And I did it because I can. What's your remedy? So what are you gonna do about it?" And I said, "Well, I don't know, but it doesn't sound very nice to me."
1:05:12 KT: And he said, basically, "Too bad, get used to it, 'cause that's what you're gonna get for me from here to the time we finish." And it was one thing after another after another until the thing came to an end. And luckily, my client won completely and his client lost completely, but it was this series of shocking events along the way and it was like every second week I'd wake up and think, "You've got to be kidding me. What did you just do?" And so, to answer your question directly, it is this, that every now and then I kinda feel like I'm gonna get involved in these international cases, I think that I'm playing by the Marcus of Queensbury rules 'cause I'm used to dealing with Erin and Paul and people who are like Erin and Paul every day of my life.
1:05:56 KT: Now I get dropped into a shark tank with a bunch of people that play by a completely different set of rules, and have nobody looking over their shoulder to make them act in an appropriate and decent and fair-minded way. And so the lesson is, if you think the whole world operates the way that we do, if you think that everyone abides by the rules of fairness and equity and justice in the way that we do as a matter of course, you're sorely mistaken. There's a great big universe out there with people that don't see the world the way that we do. And unfortunate as that reality is, that he is the reality and you have to be prepared to deal with it. And it can be a bit shocking, but it is what it is.
1:06:41 Speaker 9: So first of all, thank you all for coming tonight. I wanted to ask if there was something, it's been touched on a little bit, but if there was something you did early on in your career, or even in law school that you found really helpful later on? Whether you did it intentionally or not. And just looking back if there was something specific that you felt really benefited you later on.
1:07:02 KT: So one thing that I did, I was at Olsker's at the time, and then I did the same thing when I ended up at Tory's at the end of my second year is, I put my hand in the air, and I made it known to anyone that I could speak to, that I was prepared to go to court on literally anything. I didn't care if it was a sewage case, a doggy bite case, a dog poop case. I could care less, I just wanted to get to court. And so, in my first three years of practice, I probably did 60 trials in my first three years of practice, and a lot of them were smaller criminal... I did a bunch of small criminal trials. I volunteered to be, of all things, I volunteered to be the duty counsel for youth court.
1:07:46 KT: Youth court. What did I know about youth court? These were kids who were caught up in the system that were 13, 14, 15 years old, but had done something wrong. And they're about to now be hauled up in front of a judge, and punished or reprimanded or tried. And I was the guy, if the judge had a difficult case, he would call me and say, "Can you represent someone?" I would go up and way I go. It was fly by the seat of your pants. It was take a deep breath. I remember it was in my first year at Olsker's and I got doing a trial in criminal court, and I was so excited. My parents actually came down from North Bay, drove down from North Bay down for the trial. My father had grade eight education, and my mother never graduated from high school. They'd never seen anything like it, and they walked in to see their son played Clarence Darrow in a criminal trial.
1:08:44 KT: And it was an assault case. Crown called their first witness and I thought, "This was gonna be great. Watch me, Mom and Dad. What a success I am." And I stood up and cross-examined the main witness for the prosecution, and I clearly flubbed my first three questions. And the judge was a very nice judge, looked at me, he said, "Son, let me deal with this." So he then cross-examined the [laughter] witness for the prosecution and then promptly acquitted my guy at the end of the cross-examination. So I had a big win in front of my parents, and I got to ask [laughter] like four questions. So it's not very glamorous, but that's the truth.
1:09:28 EH: I would say for myself, knowing that I wanted to be a litigator, I did the clinic in law school, which I thought was very valuable. My only other piece of advice, and I told Professor Khimji this before, is that if you're thinking about class schedules and things, it's more of a regret than something I did well, was make sure you limit yourself to know more than one blank-in-the-law course. There's no blank-in-the-law lawyers, whether that's animals or women or economics or any of that, you need to learn the building blocks of the law. I didn't take trust in law school. I regret it frequently in practice. I luckily can walk down the hall and ask Peter Hawke to remind me of what the rules are, so that I can craft the remedial requests that I want. But if you wanna practice as a litigator or frankly, as a commercial lawyer, take the building block black letter law courses, if they're not your prereqs because you will regret it. And I very much doubt that you will remember blank-in-the-law courses in your practice unless you are planning to become a blank-in-the-law professor. [laughter]
1:10:32 RS: So I would agree with Kent, you should get into court as much as you can. The one other thing I would say is that, we've been talking a lot about corporate commercial securities type of litigation this morning. Even now, I do things in really disparate areas. I do states litigation, I do libel litigation. I wouldn't call myself a specialist in any of those areas, of course, but I do these other things to do mass tort litigation. And the one thing that I find is that getting yourself out of your comfort zone into another subject area is really useful, and you contribute to it, too, because you just would say things that they would never say to each other because they're experts and know that's a stupid idea, or think they know it's a stupid idea. So I think that keeps you sharp, if... We live in an age of specialty but I'm not convinced that it really helps keep you sharp doing your area of specialty, so do other things.
1:11:47 S7: Alright, so we wanted to make sure that we thanked you guys very much for coming out. We know it takes a lot of time and effort out of your days to come see us, but I know the club specifically and Khimji really appreciate the time you've taken. We do have a small token to show our appreciation.
1:12:28 S3: That's kind of large.
[laughter]
[background conversation]
[applause]