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Advocacy skills crucial for lawyers’ development

Focus on Value to being in court
|Written By Shannon Kari
Advocacy skills crucial for lawyers’ development
Sonia Bjorkquist says for those who aspire to practise in the field of civil or commercial litigation, there are now fewer opportunities to develop their skills in an actual courtroom.

It has been a decade since the four-and-half-month period of practical skills training was eliminated as a result of major changes to the bar admissions requirements in Ontario.

Part of this training included advocacy, a skill that, for the most part, is not taught in law schools.

The Law Society of Ontario and The Advocates’ Society hold regular seminars and workshops for lawyers looking to refine their skills as an advocate both in and out of the courtroom.

However, some experienced lawyers say there is a gap in the training of younger lawyers in this area and that more needs to be done.

What remains unresolved is whether this should take place on a more formal basis or by lawyers individually passing on their knowledge to those entering the profession.

“Advocacy is a craft that we refine over the course of our entire career,” says Sonia Bjorkquist, a partner and national chairwoman of the litigation group at Osler Hoskin & Harcourt LLP.

“As lawyers, we also have a responsibility to all of our junior lawyers to lead by example,” adds Bjorkquist, past president of The Advocates’ Society.

As a large national firm, Osler is able to provide regular training for its new associates, including in the area of advocacy, she says.

It also encourages its lawyers to participate in Pro Bono Ontario’s legal clinics.

For those who aspire to practise in the field of civil or commercial litigation, there are fewer opportunities for them to develop their skills in an actual courtroom, says Bjorkquist. 

“I have seen in litigation the dwindling trial opportunities. Most matters settle,” she says.

Whether at a large national firm or working in a smaller community in the province, junior lawyers should seek out any opportunity to be in a courtroom, says Bjorkquist.

“Never underestimate the value of being in court.”

It is part of experienced lawyers’ professional duty to be willing, where possible, to provide advocacy advice to less experienced counsel, she adds.

For example, criminal defence lawyer John Rosen has been conducting a workshop on a pro bono basis for the past six years.

“A lot of young lawyers are desperate to do well. There is nobody there to help them. When I started, I did not have mentors, but we had a lot more opportunities to do trials, especially jury trials. That is how you learned your trade,” says Rosen, who has conducted as many murder trials as any lawyer in Canadian history in his nearly 50 years of practice.

Rosen says he wishes law schools spent more time on practical advocacy skills.

“Would you to go to a surgeon who has never been in an operating room?” he asks.

He says he decided to start the workshop, which is made up of six three-hour sessions, because of a lack of any similar program for young criminal defence lawyers and as a result of discussions with colleagues who are now judges. 

“As I got older, I heard comments about poor advocacy,” says Rosen, who will be presented in November with the G. Arthur Martin criminal justice medal by the Criminal Lawyers’ Association.

The workshop is for lawyers with less than five years of practice experience.

It utilizes a past case and includes sessions on meeting the client, disclosure, conducting a preliminary hearing, cross-examination, preparing the client to testify and preserving the record for any appeal.

The Superior Court of Justice in Toronto has also provided a courtroom for the participants to use during the workshop, which takes place on weekends.

The goal of the workshop is to provide training that is as practical as possible, says Rosen.

“We can talk to young lawyers about trials at 10,000 feet. But they don’t take place there. They are at ground zero.”

He adds that effective advocacy in a courtroom, regardless of whether it is a jury trial or judge alone, requires planning out every move in advance.

“You have to know where am I going to stand? Is it the best spot? Am I blocking the jury? You can’t put on a stage show unless you have thought it out beforehand,” says Rosen.

“It is constant advocacy. Judges and juries are human.

They want to know what happened. You have to do your homework and put forward a scenario that you say is the correct scenario.

The defence starts with the first [Crown] witness.

I turn that witness into my witness.”

One of the themes of the workshop is to quiz the participants about why they are doing something a certain way in court, such as cross-examining a witness on a prior police statement.

“They do too many things by rote,” Rosen says.

Kellie Stewart, an Ottawa-based civil litigator, says good advocacy requires an understanding of the purpose behind any action in court and also the ability to respond if a judge asks questions one might not have expected.

“Ensure you understand the judge’s question. That is what he or she wants to hear about,” says Stewart, a partner at Barnes Sammon LLP in Ottawa, who also conducts full-day workshops as part of programs put on by The Advocates’ Society.

Effective advocacy requires “preparation, preparation, preparation,” Bjorkquist says.

However, she says that understanding the dynamics of the courtroom is just as important. 

“When you are prepared, you have your script. That can hamper young lawyers who are so tied to their notes. You have to try reading the body language to see the judge’s reaction,” she says.

“Be respectful, but appreciate the value of a judge’s question. That is an opportunity to engage. You have to be able to be versatile and to know when to drop a point.”

Another aspect of advocacy where training is often required is in the area of inter-personal skills, Stewart says.

“I often find that younger lawyers think they have to be scrappy. We are trained to fight. I talk to them about the importance of civility,” she says.

“It can be as simple as picking up the phone and talking to the other lawyer. Tone is lost in an email.”

Interpersonal skills are also crucial in terms of client management, she adds.

Bjorkquist says advocacy skills extend to smaller things both inside and outside of the courtroom.

“If you are in court, put your mobile phone away,” she says.

“Always be mindful of who is around you if you are speaking about a case. Take that seriously.”

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