The pros and cons of... Practising criminal law

Practising criminal law, practising in Vancouver, practising IP law, practising solo.

Practising criminal law

Judge Robert B. Hyslop
St. John’s, Nfld. Former Crown prosecutor

• “Sometimes it’s good. Sometimes it’s bad.”
• The rewards of helping people in crisis. “One case stands out of an abducted child we got back. I’ve been in contact with her ever since. And she’s now grown up. I’ve seen great success stories in youth court, too. The success stories always make up for the failures.”
• Developing people skills. “You have to be a person who can deal with people, who understands people, and who likes people. If you’re not a people person, it’s not the area for you. You have to be able to ride the waves.”
• “Communication skills are the most important thing when you’re dealing with people. Especially people who are charged with crimes and who have emotional problems, mental problems, substance-abuse problems. If you can’t communicate your client’s situation to the court, you’re at a loss. If you don’t have those skills, you had better learn how to develop them.”
• “Criminal law is largely an exercise in human understanding and in communication.”

• Finding the time for introspection. “You’re dealing, whether you’re a prosecutor or defence counsel, with a fairly high volume of humanity in distress. You’re dealing with emotions at their rawest, with victims, accused criminals, people at their weakest and most vulnerable. You have to catch your breath in that emotional cauldron. In our business, you can be caught on a treadmill.”
• It can be dangerous dealing with people at their nadir. “You’re not immune from threats. Sometimes I’ve received threats from the most unlikely people. People who had so much to lose. That’s not uncommon.”
• Getting emotionally involved. “You have to keep your distance. Once you get emotionally involved, you lose your impartiality, certainly as a Crown. You have to avoid that at all costs, since you’re supposed to be the 13th juror, representing the attorney general with nothing to win or lose.”

Sean Robichaud
Criminal defence, Pinkofskys, Toronto

• Being in court almost every single day, cross-examining witnesses. “The whole excitement of courtroom drama is always there, and you’re living that every day,” he says. “If you like the roller-coaster of emotions that befits a litigator, criminal law is what you should practise.”
• Satisfaction of protecting people’s right to liberty. “There isn’t the cost-benefit analysis that goes into litigation in the civil context. There’s great satisfaction, especially in cases you truly believe in. It’s much more effective advocacy. You’ll have your ultra-highs where you think someone is totally innocent and they’re acquitted.”
• The unpredictability of court and the flexibility that brings. “If your day does finish early, which it very often does, you can go and enjoy time with your family.
• The variety criminal work brings. “Every day is different. I like going to court and not having any idea about what could happen. The courtroom is more like a dance than it is a science.”
• Practising in a big city allows you to litigate very aggressively. “Not having to worry about burning bridges for the next day. You tend to have a higher level of advocacy because people aren’t concerned about those issues, having to deal with the same Crown attorney, the same judge, the next day.”
• There will always be work for criminal lawyers. “If you want to practise exclusively in criminal law, there’s enough work to just do that. In a smaller community you would likely not survive. You’d have to do some family and real estate and become more of a general practitioner.”
• The benefit of proximity when doing appeals. “If you decide that something has merit, it’s very easy to work that out because the appellate courts and the higher courts are all in Toronto.
• The culture of the city

• Losing cases. “If you feel someone is innocent, and they’re convicted, it totally destroys you,” he states.
• Especially for newly minted lawyers, getting emotionally involved.
• Working with sensitive material, like child pornography or sexual assault. “Like any human being, it’s often hard to completely detach yourself from the substance of what you’re arguing.”
• Work/life balance at times. “My phone is always on. People get arrested at all times of the day, more so probably at night. As a criminal lawyer, you have to always be able to assist your client.”
• Difficulty in planning your life. A day in court “may take a lot longer than you expected. Criminal law is not for a person who doesn’t like chaos.”

Practising in Vancouver

Jenny Francis
Litigator, Fasken Martineau DuMoulin LLP

• “I wouldn’t practise anywhere else. You don’t get pressure to work more; in fact, it’s the opposite. I get pressure to try to work less and to achieve a better balance in my life. In Vancouver, people are very focused on trying to make that happen.”
• Vancouver has a much smaller, more collegial bar, which is a real advantage, “particularly from a litigation perspective, a field which can be somewhat confrontational by its nature.”
• There are better lifestyle options in Vancouver.
• “Litigation isn’t so susceptible to economics. If the economy’s good, people are fighting over who gets all the money. If it’s bad, people are fighting over who suffers the loss.”
• A good variety of work. “Some civil fraud juicy files that have interesting facts combined with interesting legal issues. Right now I’m working on a large pensions class action, which is something you’d tend to see more out of Toronto. There isn’t tons of that in British Columbia but it’s certainly here in pieces.”
• “Our firm is very open to alternative arrangements, and that’s key to retaining women.”
• The temperate climate.

• “Nobody is really happy to spend their money on litigation. Generally, it’s an unhappy time in your life. It’s very different from a business file where people are putting a deal together.”
• Opportunity to specialize not what it is in Toronto. “Someone could choose to specialize in competition law, for example, in Toronto, where in Vancouver that doesn’t really exist as a practice. But it’s a small number of things that would fit into that category.”
• Housing prices. “It makes it difficult to afford accommodation that is close to your office, even for people who are making very respectable salaries.”

Ann E. Howell
Insurance defence litigator, Whitelaw Twining Law Corp.

• “There’s an assured client base, which means your work is usually there for you.”
• Little pressure in terms of where your next file is coming from. “Insurance isn’t affected by market trends in quite the same amount.”
• Liability insurance work is always going to be there. “Your firm’s work is not going to be as affected by positive economies or negative economies.”
• Job security.
• Interesting files with a good mix of work types. “It’s easy to find a niche for yourself within an insurance defence practice.” From personal injury work to medical malpractice, construction, and property, you can get really interesting work that’s highly forensic in nature as well.”
• Being able to work in many different areas or to specialize.
• Learning mediation and negotiation skills. “Mediation is increasing and is a very valuable experience. One of my most positive experiences here is being allowed to participate so much in mediation.”
• An enormous amount of opportunity to do things yourself. “As a new call, there are a lot of small files you can work on on your own, under supervision. You get a lot of experience in doing examinations for discovery yourself, attending mediations yourself, doing chambers applications yourself.”
• A smaller, friendlier bar. “The hours aren’t quite as bad but they’re still pretty tough.”

• Frustration. “You don’t get to litigate as much as you’d like to. It is essentially a business. Occasionally decisions are made from an economic perspective. There are often areas of interest where you think I’d love to take this all the way to the Supreme Court of Canada. And you just know you’re never going to get that far, because your insurance clients aren’t going to be willing to fund that kind of academic exercise.”
• Having to have an appreciation for practicality. “What’s in the best interest of your client. Not necessarily the most exciting law you could be practising.”
• Opportunities to make new law are rare.
• In a smaller firm, it's sink or swim. “You get a lot of opportunities to work on files and to gain confidence, but sometimes it would be nice to just be mentored — to take a back seat and just be able to learn.”
• The issue of work/life balance for women.

Practising IP law

Tony Turco
Blake Cassels & Graydon LLP, Toronto

• Very interesting work.
• Being on the cutting edge of technology.
• The tangibility of your work. “When you’re out in the marketplace, you’ll see something you’ve worked on and the way it’s been implemented by the client. It’s very rewarding."
• Over the past few years much IP work has been moving from Ottawa to Toronto. “We get to see IP across a broad range of work and industries.”
• More opportunities for specialization.
• Mentoring opportunities. “There a great number of experienced IP practitioners who can advise you on practice development.”

• “I can’t really think of any.”
• A caveat. Students should do much research before choosing a firm for their articles or for their first position. Many may not realize that IP work may be done mainly out of one centre. “Make sure that the firm you choose does the work that you want to do. Many of the big firms may have a good reputation in a certain area of IP, but the work may be done out of another office.”
• “Perhaps in New York you might have bigger files and more of a variety of work.”

François Guay
Smart & Biggar, Montreal

• Very interesting field of practice.
• Subject matter of each case varies a lot from one case to another.
• Most cases have very high budgets.
• Most cases are argued before a specialized tribunal, which is the Federal Court.
• Most cases are against specialized and very good opponents, which is stimulating.

• Very demanding work. Those who are not willing to work hard should look at something else.
• Most of the present laws and regulations are not harsh enough on counterfeiters and pirates.
• “[Microsoft] has been a most fascinating case. We needed to be creative, especially with our motion to obtain the issuance of a Mareva injunction, to try to freeze at least some of the assets of the defendants.”
• IP litigation is?more lucrative than many other areas of practice but can be also very stressful. It is still a growing field and there is a need for new upcoming litigators.
• As a rule, recidivism is not a problem. “I believe that the recent Microsoft case is relatively unique.”
• IP law is very competitive. “At a high level, multinationals more and more interview several firms before they decide to select one."

Practising Solo

Raj Sharma
Immigration and administrative law, Calgary

• The right temperament is important. “Assuming you’re entrepreneurial and you’re comfortable with a certain degree of risk — if you like to set your own hours, if you don’t like to toe the line. Those are the most fulfilling aspects of a solo.”
• Satisfaction from personal contact with clients. “It really means a lot to you when you bring someone, or their family members, to Canada.”
• Control. You can choose your own client. “It’s not a file that’s been tossed to you by a senior lawyer.”
• Files that involve humanitarian issues. “The biggest pro you have as a solo is being able to positively impact someone’s life.”
• Calgary is dynamic. “There’s a lot of employers and people who need your services. Many of my clientele are employers looking for workers from overseas. There’s always appeals, deportations, Federal Court applications.”
• Very reasonable and affordable lease rates. “For a lawyer opening up shop, it’s not that bad. For 800 square feet, you’re looking at $30 per square foot. That would probably compare very favourably to any solo starting out in Toronto or Vancouver.”
• “I really hope more people explore the solo option. I see the look of despair in my brethren’s eyes who work in big firms and have to put in crazy billable hours. If you have a good niche going, you’ll be as profitable and you’ll have a better work/life balance. With technology these days, you can leverage yourself up to do what a larger firm can do. Fundamentally, making partner is going to cost you your soul.”

• “There is the odd bungling of a decision with serious ramifications for your client.”
• The administrative side of things: accounting, payroll, trust account reconciliations. “You need to be able to handle technology.”
• “Starting out in practice is always difficult. It helps if you have a community, a niche, a unique skill set.”

Elizabeth Wozniak
Immigration, family, property law. Halifax, N.S.

• “Calling your own shots is one of the biggest benefits. No one to answer to,” she says.
• Flexibility. “I had a baby a year ago and I just work part time. No one can tell me what to do.”
• Halifax is a smaller place where it’s easier to get established. “It’s a smaller market, so word of mouth travels very quickly.”
• A smaller client base means if you do a good job, you can end up “permeating” your target market.
• More of a small-town mentality. “Judges are more accessible here."

• Administration of your practice.
• “Trying to balance the actual practice of law with the business of law.”
• Halifax is a conservative environment. “Not being from here is a bit of a disadvantage,” she says.

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