Anatomy of a Case

George Brown

George Brown

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

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

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

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

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

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

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

Understand the Case Law

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

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

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

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

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

Effective Advocacy

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

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

Does Pink Monkey Present a Conflict?

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

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

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

All-important Pleadings

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

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

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

Don’t Be That Person

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

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

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

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