Retired judges Dennis O’Connor and Thomas Cromwell say that, for young lawyers, mentorship is in short supply, cases are more complex and the bench has "softened" as the new generation of judges includes fewer “tyrants” like those with whom they dealt early in their careers.
O’Connor, the former Ontario Court of Appeal judge and associate chief justice, along with Cromwell, the former Supreme Court justice, compared advocacy in 2018 to that to which they were introduced at their respective bar calls in 1966 and 1979, at the “The Art of Advocacy and the Road Ahead” event hosted by the Toronto Lawyers Association on June 6.
Both recalled how in early years of their careers they spent all their time with mentors, watching how they worked.
For O’Connor, his guide was Arthur Maloney, criminal lawyer, member of Parliament and Ontario’s first ombudsmen.
“I spent virtually all my time with him,” O’Connor said at the event. “I guess gradually over time he gave me responsibilities and I got to do cases on my own. I was exposed to the way that he practised and thought — I’m not sure how often that opportunity exists now.”
There are many more lawyers today than there were in the ‘60s and ‘70s, which could mean there are fewer personal relationships, said Cromwell, who articled at WeirFoulds LLP and spent 70 per cent of his time with one senior lawyer.
The balance between older and younger lawyers is more lopsided currently than in the past, as more lawyers enter the profession. The Law Society of Ontario’s Professional Development and Competence Committee’s Lawyer Licensing Consultation paper, presented to convocation on May 24, found a 60-per-cent increase in law graduates from 2007 to 2012, meaning there may be just too many mentees for every available mentor to recreate the classic dynamic.
“One of the great challenges I think we as a profession have is how do we ensure that there’s adequate mentoring for young advocates?” said Cromwell. “I think it’s uneven; some get better mentoring because of their circumstance than others.”
When it comes to seeking out mentorship, O’Connor said that visiting the courthouse as a spectator and tracking down those seen in the courtroom during recesses to talk was “regular fare” when he was a young lawyer, but something he said is seldom part of a young lawyer’s routine today.
“There’s all sorts of interesting cases going on all the time. All sorts of good lawyers arguing in the court at all times. I would be very surprised if a young lawyer, law student, whatever, takes the time to go and at recess talk to one of the lawyers in the case about what was going on and have a 15- to- 20 minute chat.”
Both Cromwell and O’Connor agreed that it’s important for senior counsel to allow juniors to take on a piece of the case in court, to gain experience, noting that some resist that notion, arguing that clients are not paying high fees with a junior counsel in mind.
“I would venture to say that I’ve never seen a case where the outcome has been lost because the younger lawyer took part in doing it,” he said.
O’Connor, who sat on Ontario’s Court of Appeal from 1998 to 2012, said that while he and his colleagues “loved” to see young lawyers allowed to craft their litigation skills before them, “we particularly liked it on the rare occasion when the younger lawyer was actually better than the older lawyer,” he said.
Speaking a few days after the Supreme Court dismissed the complaints against Joseph Groia in his 17-year battle with the Law Society of Ontario over civility, the balance between zealous advocacy and incivility and the responsibility of judges to maintain decorum was also discussed by Cromwell and O’Connor.
Neither commented on the Groia case specifically, but both indicated that some courtroom behaviours would not be tolerated in their early years.
“Maybe judging is on a bit of a pendulum. When you and I started in the late '70s, there were some absolutely ferocious judges on the bench,” said Cromwell. “And I think that maybe some of the judges in my generation reacted against that a little bit and tried not to be ferocious and tried to be more congenial and maybe occasionally that leads some of us to let stuff go by.”
The judge’s responsibility to make sure lawyers remain civil is crucial to the system itself, said O’Connor.
“You’d like to think that our legal system, as an institution, won’t devolve down into the type of partisanship and acrimony in presenting one’s views that we see in some of the other institutions and that seems to be becoming increasingly prevalent,” he said.
Technology is also changing the way law is practised. All the new tools available to lawyers means less time pouring over books in libraries, pushing a cart full of volumes to court, said O’Connor.
The rise of artificial intelligence, says Cromwell, far from replacing a human lawyer, is going to put a premium on practical judgment.
“Artificial intelligence, I think, is going to help lawyers learn much quicker where the boundaries of a practical outcome are and so it will continue to be the case that being able to apply practical judgment to all that information is going to be what separates the great lawyers from the rest of us,” he said.
O’Connor says that, although the future may hold an increase in written advocacy and decrease in oral advocacy, as long as the law deals with affairs between human beings, there will always be a place for a human advocate that an algorithm cannot replace.
“It strikes me, looking to the future, that as long as the judge or the judges are human beings, and as long as the problems that give rise to the disputes involve human beings, there is always going to be a place for the advocate in the forum; some forum similar to the one we know now,” he says.
Since retiring from the bench, both Cromwell and O’Connor have been involved in initiatives focused on increasing access to justice. Cromwell will be stepping down as chairman of the Chief Justice’s Action Committee on Access to Justice in Family and Civil Matters. Former Supreme Court chief justice Beverley McLachlin will move into his stead.
After departing the bench, O’Connor and others formed Pro Bono Canada, which funds pro bono programs across the country.