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Landing the big one

|Written By Jennifer Brown
Landing the big one

After a few weeks of law school Frances Mahon boldly went to professor Alan Young’s office at Osgoode Hall Law School and in her words, “begged him for a job.” His response to her plea was disappointing yet encouraging at the same time. “He said: ‘Come talk to me in the summer when you actually know something and you’re not a baby law student,’” recalls Mahon, who would later that year begin a two-year journey working on one of the most pivotal cases in recent Canadian history.

She kept Young to his word and he brought her on to his team in April 2010. It was a month or so before dominatrix Terri-Jean Bedford’s challenge of Canada’s prostitution laws went to the Court of Appeal of Ontario. At that point, she says she was given photocopying and other clerical tasks to do but nevertheless was part of the team of students working with Young. “It was incredibly exciting for me to be a part of the case and to be a part of the planning and strategy for submissions to court,” says Mahon, now a criminal lawyer at Sack Goldblatt Mitchell LLP in Toronto. “I had been very interested in the legal status of sex workers both with regard to criminal law and in terms of workers rights issues for a long time. Having professor Young was very inspiring from that perspective. I was familiar with his work but it was entirely by accident that I was enrolled in his class so I felt pretty lucky.”

Over a two-year period that ended last June, Mahon worked as a research assistant for Young, investigating the legal history of sex work and preparing appellate materials for the constitutional challenge to Canada’s prostitution laws. She also worked on the Innocence Project as well as on applications under the Medical Marijuana Access Regulations.

She says the biggest mistake most students make when trying to get experience on bigger cases is assuming senior lawyers like Young don’t need help. “Alan Young is fairly unique in that he has brought many constitutional challenges of this sort and he does it for free or funded from his own pocket, so of course he needs help,” she says. “Don’t be shy — if you hear of a case you want to work on call the lawyer up and ask to have coffee with them and express interest.”

Young says he picks students who are “enthused” and is willing  to take students who are struggling academically. The reality is he usually has more students than he needs. With Bedford v. Canada he had a team of about 25 students assisting over the course of the various stages of the case. “I simply announce I’m going to be working on a case and people come forward. I don’t have any particular skill requirements for volunteers because I see it as an opportunity to have them develop skills as lawyers,” says Young. “There never seems to be a shortage of students interested in the various topics dealing with liberty issues.”

Taking on a case while at school brings additional challenges. While she was working for Young, Mahon was also doing course work and holding down a part-time job at a bike shop. “I was a mature student and had a lot of work experience so doing that real work reminded me why I was there to begin with and enriched my experience at Osgoode to a huge degree.”

Mahon says the most challenging time came while doing prep work for Bedford as it was headed to the Supreme Court of Canada. She said she grappled with the issues sex workers face in a way she didn’t expect. “I know many people who are practising sex workers and the majority are very happy with their profession and they are people who can make choices for themselves — that was the background where I was coming from.”

As the case went on, she heard from witnesses the government was bringing forward who were either academics or former sex workers advocating for the abolition of sex work in its entirety. The stories were horrific and gave her pause for thought. “Even though we were ultimately successful, you know there’s the next stage of what the government will do, so in the days leading up to the Supreme Court releasing its decision I was filled with this dread that we may have lost but also if we won the government could step in and potentially make things much worse, which is of course what happened,” she says. She describes the federal government’s proposed legislation in response to the ruling as “awful, absolutely horrific.”

For Mahon, it was an important lesson in how to approach constitutional litigation. “It’s not our role as lawyers to legislate — that’s the government’s job — but it made me think of advocacy in a different way and reminded me of my grassroots advocacy work before law school and how I could incorporate it into my profession. I don’t really have an answer to that yet but the government’s response certainly reminded me of that,” she says.

She has hopes the new legislation won’t pass and is putting her faith in the lawyers of the Justice Department who will assess the constitutionality of it and hopefully reject it. “I think if the legislation gets passed it will create an even more dangerous working situation for sex workers,” she says.

Mahon’s graduation day was the same day Bedford was argued at the Supreme Court so unfortunately she couldn’t attend in person but she was there in spirit, just moments before receiving her law degree. “We were watching the webcast right up to the moment we had to walk on stage,” she says.

For many students, working a Supreme Court case is the ultimate experience. Lidiya Yermakova was an articling student at Lerners LLP in Toronto this past spring when she was asked to work on R. v. Summers, in which the SCC was called on to interpret the Truth in Sentencing Act and determine factors a sentencing judge is entitled to look at when considering the amount of credit available to an offender for time spent in pre-sentence custody. Lerners was acting for the intervener, the Canadian Civil Liberties Association, and argued “circumstances” ought to be interpreted broadly, and in a way that accorded with the Canadian Charter of Rights and Freedoms — particularly the right to be presumed innocent and the fundamental principles of parity and proportionality in sentencing.

As the file progressed, Yermakova took on more tasks and found herself preparing the first draft of all submissions such as the application for leave and the actual factum that went to the Supreme Court. The partners she worked with at Lerners would go over her work and they reviewed it together.

In doing her research Yermakova brought forward a case called R. v. Harrison, a companion to R. v. Grant, which dealt with the test for exclusion of evidence obtained in violation of the Charter.

It became a key part of the submission. “When she first brought it to me I said, ‘Well, I’m not really sure where this is going,’” says Jasmine Akbarali, the partner who led the case. “Lidiya convinced me to put it in the factum and the more we talked about it, the more I came to the view she had really come to something good, and in fact Harrison formed the basis for the oral submissions that we did.”

Unlike two other cases they had been considering involving two battered women, Harrison involved a man who was pulled over improperly with 35 kilograms of cocaine in his bag. “Harrison was not a sympathetic guy,” says Akbarali. “The Charter case there was that the evidence of the cocaine should be excluded because there was an illegal search of the car. We thought why not make the point with the least sympathetic of the accused? You need people to hold the state to account for abuses of power via Charter claims and you need people to take cases that advance the law and Harrison, together with Grant, is where the Supreme Court of Canada said, ‘Here’s the test.’”

Akbarali says it was really Yermakova pushing and saying, “Think about this some more,” that brought them around to her point of view and convinced them to use Harrison. “In fact, I heard from the client later that an academic who was interested in the issue had, unprompted, phoned Lidiya to say they were watching the appeal on CPAC and indicated they loved the way they used Harrison in the submission,” she says. “I think that was a neat full-circle moment for her.”

Yermakova became very engaged in the work and says the freedom Lerners gave her to not just be task-oriented but part of the team gave her latitude to think more broadly. “I send my oral submissions to everyone working with me on an appeal and when I send them to [senior partner] Earl Cherniak he’s not shy on commenting but a lot of times students will just tell me I have a spelling mistake or typo but Lidiya was really good about commenting on substance. She wasn’t shy and was ready to take that role on,” says Akbarali. “I don’t always see that in students — I see a reticence, a lack of decisiveness, a lack of critical thinking, a fear of failure. There was none of that with Lidiya, which I thought was fantastic.”

Yermakova was also able to go to the SCC in Ottawa to watch the oral argument. “That was amazing,” says Yermakova. “I got a phone call from Jasmine and it was so unexpected but they wanted to bring me for the experience and it was terrific. I really enjoyed being in the court and rehearsing for it.”

Taking initiative and identifying cases you want experience on is key for articling students who want to get good files while articling, says Alvin Wong. He finished his articles this past spring at Gowling Lafleur Henderson LLP in Toronto and is now an associate. As a student, he worked with one of the firm’s restructuring and insolvency partners, Jennifer Stam, as part of the team representing the Canadian monitor in the Nortel Networks Corp. trial. “Ask lawyers what they’re working on. Try and engage yourself in their line of work. See what you can do to make their lives easier. It may also go without saying but do good work. Once you do good work, lawyers will be more likely to give you that more interesting assignment that you’re seeking,” says Wong.

“I think one of the most important things for all articling students is to take initiative. If you’re working on a big file, sometimes it’s easy to feel lost in the big picture. So ask if you can read the pleadings for the file or read whatever is being submitted for a motion — that helps you see the big picture and see where your work fits into the bigger picture,” he adds. Also, ask to attend strategy meetings or motions or even attend trials, which will help you see where your research is taking the file.

Natalie Zinman, Gowlings director of student programs, says Wong, who had summered with the firm the year before, had been an articling student for about a month when Stam came looking for a student who might be a fit for the file. “We knew he was a strong team player,” says Zinman.

Wong had done his intensive rotation in Gowlings’ litigation department and was very interested in working on the Nortel file. He initially assisted with the discovery process and helped Stam with depositions and document discovery. “I was really excited to work on it because I had heard so much about this file before and it was really an exciting opportunity for me because of the scale of the file and I knew it was going to be a very public case as well,” he says.

While most articling students work long hours, being on one file with such a high profile offered a variety of tasks but was a concentrated effort. “Sometimes I was involved in strategy meetings or other times invited to sit in on depositions, other days it was document review and, in some instances, there was some drafting to do, so it varied quite a bit,” he says.

His advice to other articling students looking to get invited on to a big file? Do good work and take initiative to understand the big picture. “I also didn’t quite appreciate until this year the importance of technology in a big litigation file. I think a lot of firms are using e-discovery tools because of the number of documents between parties for a litigation file. As a student, it’s a great opportunity to learn how to use e-discovery software programs because more and more files, whether large or small, will start to use these programs,” says Wong. “It’s a great transferrable skill.”

Wong says he had a lot of support at the firm and emphasizes the importance of developing good working relationships with everyone on the team. “The law clerks, paralegals, and administrative assistants were really great at providing assistance in every part of this file. It’s really important to get to know them well and develop good working relationships with them. They can really help you out when there are significant time pressures.”

Not all big cases involve going to the Supreme Court or being part of business-page headlines but they do bring experiences that can help a student find their way to a practice area.

Graham Fulton says he was a fairly “raw student” when he was approached by a partner at Blake Cassels & Graydon LLP’s infrastructure group to work on a deal for the John Hart Generating Station rehabilitation — a BC Hydro power plant on Vancouver Island’s Campbell River. The University of Western Ontario Faculty of Law grad says he didn’t know what area of law he wanted to focus on going into his articling position at Blakes. “I was a pretty blank slate when I started,” says Fulton. “I was leaning more to the solicitor side but other than that I had no real indication.

Certainly by the end of the John Hart project I was pretty set on infrastructure.”

He had summered at the firm in 2012 but had been an articling student for about two weeks when he was approached to work on the project. “It was right off the bat during my first rotation,” he recalls. “One of the lawyers in charge of the project came to my office and sat down with me for about 40 minutes and walked me through the project, the structuring of it, the various entities, and some of the key dates.”

Fulton stayed on the project well into his second rotation — about four months. He logged a lot of hours, gaining exposure to many different areas of law and the opportunity to work with a variety of lawyers at the firm. “There were times they let me take the first cut at drafting certain documents which I didn’t expect to be doing as an articling student. It was a fantastic experience because I could do the work, hand it to the lawyer who had assigned it to me, and they would mark it up and walk me through what was good and more importantly what they would change.”

For a lot of articling students, their involvement in different files is often transitory — coming in to do a closing or a discrete aspect of a deal for brief periods of time but Fulton feels he had “substantial involvement” in the infrastructure project. “By the end, I really felt I understood what was going on and what the key moving parts were and how the deal was structured. I really appreciated that side of it,” he says.

There were a number of late nights working on the project, Fulton recalls. “I remember a couple of times finishing an assignment at midnight or thereafter and going to hand it to the lawyer and then jumping in to help with the next task. Especially near the end it was around the clock and that gives you an appreciation of the hours it takes to make deals like this happen.

“You learn things by osmosis,” says Fulton. “You’re around other lawyers and in discussions with opposing counsel and you pick things up without really noticing and incorporate them into your own habits and that’s one of the main benefits of being on a deal for this long — you see how lawyers correspond with each other and the kind of deadlines they’re working with and how they interact with clients. A lot of it was learning by seeing everyone else doing it and picking things up that way.”

Those late nights and long hours are common for most articling students but especially so on big cases. As much as working on a case headed for the Supreme Court may seem glamorous, Akbarali notes there is “drudgery” that goes with it too. “I had a student before on a Supreme Court case who was great on the meaty issues — strong analytical skills, eager to be participating — but when it came down to making sure the citations were right, he learned the hard way. He underestimated the time needed and ended up being at the office for about 36 hours straight,” she says. “You need someone who is not going to be shy about putting in the time and attention to the details.”

Lauren Posloski was an articling student at Norton Rose Fulbright LLP in 2011-12 when she had the opportunity to work on R. v. N.S. At issue was whether a sexual assault complainant had the right to wear her Niqab on the witness stand at the preliminary inquiry and trial. It was a Charter battle over freedom of religion versus the accused’s fair trial rights requiring she remove her veil to testify.

Posloski says working on the pro bono file gave her the chance to get “deeply involved in a case that had real-world consequences for Charter rights jurisprudence.” It also gave her the chance to do high-level work. She met with the client, the Barbra Schlifer Commemorative Clinic, researched the issues, and helped with drafting submissions that were eventually made at the SCC. “I was always interested in public law and Charter litigation when I was in law school, but I wasn’t sure if I wanted to do public advocacy work exclusively,” says Posloski.

Her mentor knew she was interested and was willing to bring her on board N.S. because she had made it known she was keen on Charter litigation. “If people don’t know you are interested and engaged they won’t try and involve you so my advice would be let your interests be known and speak to as many people who are doing the kind of law you like to do as possible,” she says.

Yermakova agrees building relationships with lawyers who will “pay you back” with the kind of work you want to do is important to having a good articling experience. “The way I was brought on the file was because of the relationships I had built at the firm and that involves doing good work for everyone all the time,” she says. “And often you don’t know who that’s going to be — who is going to get that Supreme Court file that just came through the door. You have to hedge your bets and make sure you’re doing your 100-per-cent work for everyone.” ¦

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