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Mentoring grows up

|Written By Gail J. Cohen
Mentoring grows up

Once a dusty tradition that occurred on an ad hoc basis, if at all, mentoring is making a comeback. In fact, using top judges and lawyers to mentor young lawyers is becoming an important part of training associates at some of the country''s best-known firms.

Once a dusty tradition that occurred on an ad hoc basis, if at all, mentoring is making a comeback. In fact, using top judges and lawyers to mentor young lawyers is becoming an important part of training associates at some of the country's best-known firms.

Ask veteran partners how they view the new recruits and they’ll often say something along the lines of, ‘They don’t know anything!’ It’s not meant as a slight, merely as an acknowledgement that practising law is a good deal different from learning about it in law school. There’s just no substitute for being in the trenches. As a result, mentoring has always been part of the profession; it may not be formally organized or even particularly well done half the time, but when it works, it tends to go a long way toward giving a boost to young talent, as well as providing a way for seasoned counsel to pass down their hard-earned expertise.

It often takes time, though, for informal — if solid — mentoring relationships to emerge, and one thing the modern lawyer doesn’t have much of anymore is time. There are the demands of billing, for instance, as well as firm politics and the need to ensure everyone is onside with an arrangement that can look like just a lot of off-the-cuff yakking. At the same time, technology, financial pressures, and the general pace of life rarely allow for such an disorganized approach. Now it’s common for most big law firms to have formal mentoring programs, where young lawyers are paired up with seasoned, senior members of the firm.

But even with these formal programs, time is at a premium and with the demands of deadlines, complex files and, always, costs, there are rarely enough opportunities for young litigators to get a sense of how it all works. “Law is so expensive, there are so many people and machines and, as a result, a high emphasis on billing. Young lawyers are not getting enough exposure to the real world,” says Thomas Zuber, a retired superior and appeal court judge who also practised law and taught at the University of Windsor for many years. Justice Zuber, who is now with Sutts, Strosberg LLP in Windsor, Ont., was awarded the Order of Canada late last year.

He notes that 50 years ago, lawyers were frequently in court; his first case was worth $25 but he fought it out before a judge. “You got bruised around a lot,” he says, “but you learned by doing. Mentoring is needed more now because there’s not so much learning from the school of hard knocks at the magistrates’ court.”

Zuber is among a growing number of former judges and other notable professionals who are being courted by large firms, mainly in Ontario, and are bringing a new sophistication to the age-old art of mentoring. The latest to move into the role is Justice John Major, who recently joined Calgary’s Bennett Jones LLP after more than a decade on the Supreme Court of Canada. Other luminaries, such as former Ontario Securities Commission chairman David Brown, former chief justice of the Ontario Superior Court Patrick LeSage, former associate chief justice of the Ontario Court of Appeal John W. Morden and others are joining some of the country’s top firms, often with a mandate entirely devoted to working with young lawyers, especially litigators.

LeSage, who joined Gowlings’ Toronto office about two years ago after some encouragement from long-time colleague and head of the firm’s advocacy department, Glenn Hainey, says the bulk of his time is spent being a “mentor and sounding board” and helping young lawyers and law students adjust to their new careers. And it’s not just something to fill in the time of a man who has already spent 42 years as a lawyer and judge. “It’s absolutely full time,” he says, noting his role is akin to that of a firm guidance counsellor. “On any given day a number of lawyers, not necessarily just young lawyers, will come and chat with me.”

LeSage and others in similar positions have a rare range of experience and insight to share with other lawyers, but they aren’t doing it in the traditional one-on-one mentor role. The ex-judges, in particular, are helping lawyers of all levels make their cases better — whether that means resolving them in or out of court. They help in the writing and revision of factums and statements of claim, discussions of strategy, and routes to take to advance or defend cases. In particular, former judges can offer a point of view that even senior litigators don’t have.

“A lot has to do with what are the arguments that will catch the attention of the judge,” says LeSage, “what the judge is likely to be looking for.”

Zuber echoes that thought and notes that litigators need to present a fact situation that attracts a sympathetic point of view. “It’s got to look good, smell good. New law graduates are too wound up in details. This isn’t library science. You can have a ton of information but you have to attract a sympathetic view first.” Then, he adds, come the particular details of the case.

While judges and litigators are on different sides of the bench and play different roles in the system, they have the same thought patterns, observes Morden, who has been at Heenan Blaikie in Toronto since 2004. “I don’t think there’s any magic in being a judge or a lawyer,” he says. But one thing a judge does have is the benefit of having seen hundreds of cases come through the courts. On the Court of Appeal, Morden says he would hear eight to 15 appeals a week, giving him a broad view of the mistakes made by lawyers. “I know what the common shortcomings are. A judge knows what they are and can help lawyers avoid them.”

Zuber, who’s been mentoring at Sutts, Strosberg for three years, says he helps associates see how their cases will play out in the courtroom. “Trials are part law and part drama,” he says. “You need to put on a presentation that’s persuasive.” Those who come seeking assistance often want help with their approach or presentation of the case, asking frequently for the former judges’ opinions about certain evidence. As LeSage says, “I give them my reaction. Most of it is a reflection of my experience of 41 years in the courtroom as a lawyer and judge.” Morden says he’s also in a position to let lawyers know that it’s okay to make mistakes and learn from them, particularly with him there to catch them early on. “I generally have more experience than the other person,” he says, “and I can pass on what I’ve learned through my mistakes.”

Beyond the facts and strategy of the cases, former judges can also give their thoughts on behaviour in the courts and in mediations. As fewer and fewer young lawyers get the opportunity to go to court, this kind of guidance is golden. “I’m able to give them advice that’s consistent with professionalism and [the fact] that they’re part of a noble profession, while at the same time remembering that their role is to be an advocate,” says LeSage. “There are certain principles, such as professionalism, that need to be kept in mind. Also that you can be an advocate for a cause but don’t make it your cause. Stay objective.”

Zuber, who was a law professor at the University of Windsor, had mentoring on his mind for years and teaching young lawyers courtroom behaviour started while he was on the bench. He recalls one young Crown attorney who was very new to the job, still on probation, who was sent into his courtroom. “He was very truculent,” Zuber relates. “I took him aside, I told him he’s got to take the rulings against him. ‘I’m the umpire; my word rules so sit down.’ He finally got the point that he had to take it with grace. He succeeded and was taken on permanently. He was such an argumentative bulldog that he would have been dumped otherwise.”

Behaviour is one pillar of the presentation but so is the written aspect. Facts are facts, but a badly written factum or statement of claim can be fatal to a case. Morden points out that lawyers just don’t spend enough time working on such basics as sentence structure, which shouldn’t be developing into an obscure art. “I have a firmly held view that lawyers don’t really appreciate the importance of good communication skills. They think, if you have it, it’s just an adornment to the facts.” That’s dead wrong, he notes. “Your mode of expression is part and parcel of the point you’re trying to make. A case is won or lost on the way it’s presented.”

But the role of this new brand of mentor is much more than dispensing pointers on pulling together court-friendly litigation. They do, on many levels, fulfill the role of a benevolent guidance counsellor working to smooth the waters for, and calm the nerves of, harried young associates and law students. “A lot of young lawyers are uncertain about their careers,” says LeSage. “I can try to put their careers into the perspective of a long career.” Many are trying to chart their course for the future, decide if they’re going to stay in litigation, focus on one area, or move into another area of law. “For most of us, I tell them, our careers were not what we anticipated they would be. Sometimes you end up in a totally different area of the law and find it quite fulfilling,” says LeSage, who began his career with an eye on tax law but ended up practising criminal law for more than 12 years.

“I’ve had people wonder whether they should continue in practice. I encourage them to examine all the possibilities and not necessarily decide that it’ll be their final career in law,” says LeSage. Sometimes you need to take a different turn, he says. As a young Crown prosecutor, the man who would one day become a chief justice decided to take a year-long sabbatical to travel. He’d promised himself that he was going to see the world before he was 30 and he did. And while in Afghanistan, which in 1965 had only a handful of lawyers, he was approached to help write a new criminal code for the country based on traditional Sharia and common law. He declined and sometimes looks back and wonders ‘what if.’ But he returned to Canada and went on to success in the legal profession. Typically, a certain percentage of lawyers decide to do something completely different, but LeSage stresses that their legal training will serve them well and that they can return to practice if they leave.

Many young associates and articling students also feel very intimidated by the structures they find themselves in, both in terms of the firms, but also because more firms are starting to recruit summer students as a prelude to articling. That puts a lot of pressure on young people, says LeSage. He says he makes a point of seeking out the students in his firm and those he’s met over the years to ensure they know they can keep their options open. “Young lawyers often feel caught up in a vortex over a decision made in second year,” he says. “It’s important that they be able to speak to someone who’s been around, who’s had experience, to tell them it’s a great profession and one doesn’t need to become overly focused.”

David Brown, the former chairman of the Ontario Securities Commission, who returned to his former firm, Davies Ward Phillips & Vineberg LLP in December, notes that new lawyers coming into a firm have lots of relationships to figure out; and as a mentor he can help them navigate their way. For instance, if an associate is particularly good at one thing, they can get pigeonholed. “But as a mentor, I can step in and say, they need to get someone else.”

Brown, who is “trying without success to retire,” decided to return to Davies, where he’d practised for 30 years, to be part of what he considers a dynamic firm: an atmosphere he found very attractive, “especially after such a high-intensity job” at the OSC. He won’t be practising and neither will the former judges, who are strictly prohibited from doing so, but will be acting in an advisory and “supportive” capacity.

There are other advantages to this new-wave type of mentoring. Because they aren’t practising, and don’t face the pressures of billing targets and other day-to-day legal matters, they can be the bridge between the juniors and senior management. “If there is trust between mentor and mentoree, the firm will learn about [problematic] issues and be able to deal with them,” observes Brown, and that benefits everyone.

Zuber feels his relationship with young lawyers is an education for them both. “A lot of stuff I took in law school√¢‚ÃÆ’‡Â¨Â¬Â¶has passed into history,” he says. “New lawyers educate me on the nuts and bolts. I educate them on how you sell it.” Morden, who also does ADR and opinion work, says the new style of mentoring is crucially important. “If you’re going to have a firm, you should have been doing this for the past 100 years,” he says.

While these senior lawyers are all in the twilight of their careers, they don’t view it as the end but the beginning of another phase. They were litigators, professors, judges; now they are mentors. And besides, Morden says, it’s stimulating and keeps him sharp. “Law is information and either you’re plugged into the flow or not,” says the man who continues to read the Ontario Reports and many other legal publications every week.

Not every law firm can afford to have an “elder statesman,” admits Zuber. “It’s a luxury not many law offices can manage. But if you’ve got enough room to give a retired judge an office and a secretary, it’s worth it to have someone there to make young lawyers be better lawyers, even if [the retired judge] isn’t bringing in any money.”

Susan Clarke, a partner and director of associates at Gowlings, emphatically agrees. “Young lawyers have no idea what goes on in court. Having a judge tell them makes a huge difference. [Litigators], believe the judge and having a judge is tremendously instructive to them.” She says young lawyers are strongly drawn to LeSage, whom she describes as a “warm guy” who’s truly interested in the associates. “He’s a star and we got the best one possible.” But best of all, she notes, he’s available informally to most lawyers in the firm almost any time.

Zuber sums it up from the retired judges’ point of view: “It’s not about making money. You just want to feel worthwhile.”