In law school you may have dreamed about being an advocate who would be in court all the time, actively arguing your case before a judge (and maybe even a jury). Once you were called to the bar, you probably couldn’t wait to get into those crisp new robes and take on your adversary — all for the love of justice!
But then . . . after a few months of being an associate, reality set in. You now see that some of your more senior colleagues have only seen a courtroom a few times. Perhaps they have argued a few motions, but discovery is where most of the action lies. If a matter goes to trial, it is an extremely big deal. Welcome to the world of litigation!
Esteemed litigator Guy Pratte, even back in 1994, accurately described the state of affairs for young litigators when he said: “The opportunities to train as an advocate have all but vanished. Thus many disillusioned candidates quit the profession, or resign themselves to a life of unfulfilled ambitions and shattered dreams. . . . The complaints from younger litigators are as well known as they are universal. The level of frustration is palpable, and no wonder. What other occupation does not offer a clear way to learn the craft?”
And so it is. But why? Where have all the advocates gone? It’s not an easy question to answer. The Advocates’ Society’s task force on advocacy in 2004 found that, at a general level, advocacy opportunities are decreasing as a result of the decreasing number of trials. In my experience, some of it has to do with the high costs of litigating and some of it has to do with the delays in just getting a matter heard. No matter what the reason, young litigators are not getting out there as much as they would like. And when they do, even if it is something they have done before, they are still wet behind the ears, green, more inexperienced than their senior counterparts were at their level — and nervous as hell.
Costs and delay
My hourly rate is significantly lower than lawyers of my vintage at the bigger firms. One would think that if you were billed out at a lower rate, you would be more affordable and would therefore get to trial more often. Not so. The fact is that the costs of litigating to trial are so high as to be almost prohibitive no matter who or where you are. It comes down to how much the client can afford and how much the case is worth. Having difficult and unresponsive counsel on the other side can also raise the costs of litigation significantly. Unfortunately, I have often found that the smallest cases are the most complicated ones that require more work, the costs of which may even exceed the amount of the claim. There is definitely a price tag that comes with justice.
Access to justice can even be a bigger problem. Litigants are at the mercy of the schedules offered to them by the court. Happily, in a smaller city centre like Hamilton, you can get a non-urgent motion on the list for the following week. Out of curiosity, I called the Toronto scheduling office to see how long it would take just to schedule a motion before a judge. I was told two months! Good luck with getting that matter to trial in a timely way.
Because of our lack of experience, it’s hard for us not to get nervous. I only went to one examination for discovery with a litigation partner before doing one by myself. At the end of the day he said, “Okay, now you can do this on your own.” I was sick with fear my first time.
I juniored with a senior litigator on a two-week trial (yes, a trial; they do actually exist). He told me that I was going to argue the law part for the closing argument. I was even sicker with fear arguing before a judge.
The fact is that, as a litigator, I’m not in court every day and there are less advocacy opportunities than I would like. This is even so for the associate at the small firm. Once I finally get to leave the office and do something fun like argue a motion, I am always nervous at first because I don’t feel like I’ve had enough experience before a judge to feel completely comfortable. (Having said that, someone once told me that once you stop being nervous, you’ve lost your edge.)
What is an advocate anyway?
I thought that coming to a smaller firm in a smaller city than Toronto would allow me to gain more advocacy experience. It turns out that my opportunities have been pretty much the same at both the big firm and the small firm. I can therefore only conclude that it is just the nature of litigation these days.
However, we must not forget what it really means to be an “advocate.” When you are retained, you are hired to take up your client’s cause; you write letters to opposing counsel stating your position; you strategize in terms of the next step you are going to take; you use the Rules to your advantage; you try to settle when it is reasonable to do so; and you are always (at least hopefully) acting in the best interest of your client. According to Black’s Law Dictionary, an “advocate” is a person who “defends, pleads or prosecutes for another.” Therefore, being an advocate is not just about wearing your robes or appearing before a judge; it is something that you do every day, even behind your desk, when you are representing the interests of others.
Alexandra V. Mayeski is an associate at Evans Sweeny Bordin LLP in Hamilton, Ont. She can be reached at firstname.lastname@example.org