Litigation Coaching by Judges

We often speak of litigation coaching for clients as a form of unbundled services, as one of the new frontiers for providing cost-effective legal services. But I’ve also identified the challenges that young lawyers have in developing the practical skills in litigation, especially given the strong emphasis in the system to resolve issues outside of the courtroom.

At the Canadian Bar Association (CBA) Canadian Legal Conference in St. John’s, Newfoundland this weekend, I had the opportunity to speak in greater depth with some vendors and discovered a product of interest.

Taran Virtual Associations, a domestic legal outsourcing company who provides precedents, templates, and research services, also has a lawyer coaching service.

The litigation coaching is provided to lawyers by a retired judge of the Ontario Superior Court of Justice,

A highly respected former Justice of the Ontario Superior Court of Justice has joined TVA’s Legal Outsourcing Network. He is ready to review your submissions, hear your argument, and opine on the law and your chance of success before you make your appearance in court. His 20 plus years of experience on the bench can be harnessed on demand. (For example, he recently reviewed our client’s factum and provided suggested changes for under $2,000.)

The service has been available for some time, but it’s not one I’ve heard a great deal about from my colleagues. The opportunity to review oral or written submissions in front of an experienced judge is a cost-effective and low risk alternative to learning through trial by fire, and is a better way to protect client interests.

What may prove challenging with this service is justifying this as a disbursement to a client. Most clients expect lawyers to be fully proficient in all aspects of practice, even if a lawyer has been called for a day. In reality we know that skills are continually developed over a lifetime, and we all improve on our legal knowledge and skill sets through continuing education and training.

Judge-reviewed litigation training may be used as a way to mitigate risk of solicitor negligence claims. A judge can point out the flaws of a legal argument, or suggest how it can be improved. If a client refuses to modify the approach regardless, the service can be used to demonstrate that a lawyer has approach the file with competence and thoroughness. A judicial review can also lend credibility to the litigation strategy employed by counsel.

Cost-sensitive clients who look to hire junior or mid-level lawyers should understand there is a corresponding trade-off in litigation experience. A disbursement of a couple thousand dollars to benefit from the experience of the bench in my opinion a reasonable way to address any skills shortcomings and improve or fine tune a litigation approach.

 

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Comments

  1. Good find, Omar. Do you think this raises issues at all?
    In BC a lawyer who has served as a judge or master must not use any judicial title or otherwise allude to their former status through marketing activities.
    This restriction is particularly aimed at promoting a lawyer’s firm or practice. They can still be introduced as a former judge at a conference talk, or whatever.
    But what you’re mentioning is skating close to the line, no?
    Is advertising a paid auditing/coaching service by a former judge to entice a retainer of some kind a breach of this? It seems at least somewhat against the spirit, especially if the “coaching” is paid for by a client at the end of the day.
    Basically, I see a problem if a member of the public is paying a bill under the reasonable belief that their case will be improved by retaining a judge — even if the bill is from a consultant.
    It seems the thinking around restrictions on judges returning to practice has to do with justice being seen to be done. It would seem very bad if the losing side to a case was looking at a bill of costs with a disbursement for “paid former judge for coaching, $2,000″. Actually, that looks terrible.
    On the other hand, I think more mentorship or coaching is a great idea, and new calls would be blessed if they could access clinics in these skills. I don’t know about retaining coaching for file-specific retainers though. Coaching the lawyer on her skills, and coaching the lawyer on the matter, these seem like key distinctions.

  2. This is really nothing new. Supreme Court Justices have returned to practice. Neither Frank Iacobucci, Jack Major, Michel Bastarache nor Ian Binnie have exactly retired.

    They all joined law firms, and while they wouldn’t appear as advocates, they have provided advice to those preparing factums. Their firms do sometimes organize mock oral arguments, with a panel of retired judges.

    They are keenly aware of the limits of propriety. The embarrassing spectacle of Kellock J appearing as counsel before his former colleagues on the Supreme Court led to prohibitions on retired judges as counsel.

    There are dozens of other examples of senior appellate judges within law firms. Jean-Louis Beaudoin, Rene Dussault, Roy McMurtry, John Morden and a roster of judges who now serve as mediators or arbitrators in major cities.

    I’m not sure that I see any ethical issue here. Though in many US states, retired judges cannot practice law (AL, CT, DE, FL, IA, MD, MA, NV, NJ, SC, WA, WY). In PA, a retired judge must agree never to practice law again.

    One wonders whether this would perhaps limit the pool of those willing to become judges. Remember that the finest Canadian advocate of the Twentieth Century, J.J. Robinette accepted a judicial appointment, only to regret – and withdraw – that acceptance a week later. He returned to McCarthys for the rest of his career.

    Nor do I think that the LSBC would waste any time trying to enforce any prohibition on factually noting on a website that a lawyer who is Of Counsel to a BC firm once served on the Court of Appeal.

    Are these statements across the BC line?

    Bennett Jones – The Honourable John C. (Jack) Major, retired Supreme Court of Canada judge,rejoined the firm as a consultant in 2006 upon his return to private legal practice.In that role, he provides strategic and tactical reviews of significant matters for the firm’s clients and is a senior mentor to the lawyers and staff of the firm.

    Torys – Frank Iacobucci joined Torys as Counsel in September 2004 after retiring as a Justice of the Supreme Court of Canada. As Counsel, Frank advises government and business on important legal and policy matters. His work includes guidance, advice and support to clients of Torys and members of the firm.

    One of Canada’s most respected advocates, the Honourable Ian Binnie served for nearly 14 years as a Justice of the Supreme Court of Canada. In his role as Counsel with Lenczner Slaght, Ian shares strategic and practical advice, as well as his dispute resolution expertise, with his colleagues and the firm’s clients.

  3. If the “line” is the Rules of the LSBC, and if these statements appeared on the website of a BC law firm, then yes I believe there would be a crossed line. None of these former jurists are subject to the LSBC’s rules, mind you, but there you have it at least in the BC context. Because there is no live ethical problem in the case of these individuals in these circumstances does not mean there is not an ethical issue. It is anyone’s right to think another is wrong-headed, but this only confirms that something is in issue.

    Here are the goods from BC’s regulator:

    REINSTATEMENT OF FORMER JUDGE OR MASTER
    2-54

    (4) A lawyer who has served as a judge or master in any court must not use any judicial title or otherwise allude to the lawyer’s former status in any marketing activity.

  4. I hear you, but I doubt that the LSBC would have said anything against Allan McEachern or Mike Goldie.

    UBC didn’t get the message when they mentioned both

    The UBC tribute clearly mentions both roles.

    My memory was that their full bios were on the Fasken website but archive.org doesn’t have the right links back a decade.

    And Tom Berger always was on the edge of every line: http://www.orderofbc.gov.bc.ca/members/obc-2004/2004-thomas-berger/

    I’m really surprised that Berger’s twelve years on the BC Bench would continue to dog his public profile (though frankly his non-judicial career has been a lot more interesting and significant than his stint on the BC Supreme Court); or his published bio here and here .

    But perhaps none of this fits in the definition of marketing.

  5. A minor addition to the countless arrangements of concern to SRL’s. How many of whom get coaching from a former judge? Maybe some of those “retired” judges should consider doing some pro bono work.

    BTW, I just checked Wally Oppal’s bio at Boughton Law. I now see no mention of his former role as a judge or his position as Chancellor at Thompson Rivers University (which recently gave an honourary law degree to his old friend and former Premier Gordon Campbell).

    So, members of the bar who were previously on the bench must not mention that fact. Perhaps then that’s a question that should be put to all barristers by opposing parties. “Were you ever on the bench?” I’ll add that to my list of questions that includes for the bench: “are you currently a member of the Canadian Bar Association?”

  6. Chris,
    Unbundled coaching services are already provided to SLRs. I do not know of any judge who is providing or interested in providing coaching services to SLRs directly.

    I’m also not sure what the CBA has anything to do with your inquiry. The service is provided to the bar, irrespective of CBA membership or not, and simply happened to be present at a vendor booth at a CBA conference

    Nate,
    I agree with Simon Chester that many large law firms already do this internally. I did not know of any service provided commercially on a contract basis to the vast majority of lawyers who do not practice in large firms. I am not saying this is not without issues, and I’m glad to see the ensuing discussion occur.

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