Course or Seminar Category: Dispute Resolution - Civil Legal Process and Professionalism

Legal Values: Psycho-dynamics of Advocacy & Judging

Advocates reverse-engineer cases from the outcome their clients seek, selecting the most compelling facts and the most plausible legal channel to build the chain of reasoning that will lead to that outcome. This is result-selective reasoning. By contrast, judges are expected to come to the dispute without a personal agenda beyond the call of duty to reach the just legal outcome based on the facts, the law, and their interaction.

Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges. No doubt these advances have given advocates more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these techniques and avoid being lured away from doing justice according to law.There are four quite distinct and burgeoning fields of research into the psychology of judging, which are based on empirical research that lays out the cognitive infirmities that affect human beings. These could be basic materials for effective advocacy.

The first, and the one with the broadest reach beyond judging, is based on the thought of Daniel Kahneman and Amos Tversky, who explore cognitive illusions or biases that affect human cognition generally, and, therefore, judicial cognition. Second, there is a growing area of research specifically on the effect of emotions on judging, particularly empathy. Third, the study of coherence-based reasoning seeks to describe the way judges and juries think. Fourth, there is research on the effect of narrative on judicial attention, understanding, and judging. These areas are not quite silos, but they have not yet coalesced into coherence.

This course will familiarize you with these areas of thought, using an excellent recent American text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018). It is an operating manual to the judicial mind and ground-breaking. I would supplement with Canadian cases demonstrating the impact of the rhetorical techniques explored by Berger and Stanchi.

To these techniques is added the filter of ethics – judicial and lawyerly. How do judges and lawyers meet their obligations, in the course of a lawsuit, to first, do no harm; then, do the right thing, for the right reason, in the right way, at the right time, and in the right words? Do rule of law constraints work to ensure principled advocacy and adjudication?

Theory and Practice of Mediation

Theory and Practice of Mediation offers students an interactive opportunity to develop an understanding of the utility and impact of mediation within the context of the dispute resolution spectrum. Students will gain knowledge through lecture, group discussions, simulations, placements in the Toronto Small Claims Court (circumstances permitting), and final evaluated mediations. As well, the seminar provides an opportunity for students to undertake a paper assignment to examine both theoretical and practical issues discussed during the term. Students will be engaged in a hands-on learning opportunity to explore negotiation, mediation styles and tactics, while being mindful of ethics and professional obligations.

Trial Advocacy

An introduction to the techniques of trial advocacy in civil and criminal trials. Consideration is given to pre-trial preparation and case analysis, opening and closing statements, examination and cross-examination of witnesses, evidence issues, expert evidence, tactical questions and ethical issues that confront the trial lawyer. Students perform simulation exercises in small groups under the critical guidance of experienced trial lawyers and Judges. Students conduct 1/2 day jury trials with two-student counsel acting on each side of the case. Trials are presided by Judges of either the Ontario Court of Justice or the Superior Court of Justice.

Legal Values: Becoming an In-house Counsel

The in-house counsel generally works as an employee of a business, government entity, or other organization, overseeing other lawyers’ work in one’s department, reporting to a senior executive like the CEO, and often combining legal advisory work with being part of the overall business team. Much in-house legal work will involve assessment and response to legal risk, whether in terms of liability or ensuring due diligence is done to comply with various regulatory regimes applicable to the entity. Often, the senior in-house counsel (who is often called General Counsel) will select and then work with external counsel from private practice, especially if a legal matter is in need of dispute settlement. In what ways does the role of in-house counsel differ from the various forms of private practice? Are some skills and aptitudes of greater import in one lawyering context as compared to the other? How does one become an in-house counsel, and are there advisable ways to prepare for such a career or transitioning to it from private practice? Do inhouse counsel need to be more generalist or more specialized in their knowledge – or, perhaps, more of each in different ways? These and other questions will be explored in this seminar.

Legal Values: Litigating IP Cases

The seminar surveys the process of intellectual property litigation in Canada and gives students an opportunity to acquire and apply practical skills and judgment litigating intellectual property (e.g. copyrights, patents, industrial designs, and trademarks). While the litigation experience is applicable to all Canadian jurisdictions, the focus of this Court is on the Federal Courts, where most such cases are litigated. Evidence (e.g. fact evidence and expert evidence), motions (e.g. pleadings motions and motions for bifurcation), and remedies (e.g. damages, accounting of profits, and injunctive relief), are considered. Students will be exposed to all stages of a case from the perspective of the party suing and the party being sued: advising the client, preparing pleadings, briefing witnesses, discovery, drafting written arguments, and judgment writing. The seminar culminates in preparing for and participating in a moot.

Constitutional Litigation

In this seminar, students explore the adjudication process in constitutional litigation, consider questions of procedure, proof and remedies and discuss effective preparation of and advocacy in constitutional cases. Seminar topics will include: the role of the courts in constitutional litigation; commencing a constitutional case, drafting pleadings, government action under s.32 of the Charter, standing, crown defendants, choice of venue, remedies, evidence in constitutional cases, the role of experts and drafting effective affidavits, discovery of governments, and interlocutory relief.

Financial Literacy for Lawyers

Lawyers frequently work with financial statements and other accounting information. Yet for many lawyers working with accounting information is difficult and even intimidating. The purpose of this program is to demystify accounting and provide lawyers with the knowledge and understanding they need to work confidently with accounting information and so they can have informed conversations with and ask informed questions of accountants, other lawyers, and business managers and owners. The program is not technical—it is not intended to teach how to do accounting—but designed to explain how accounting works and its economic consequences. A key theme is for participants to understand the limitations of traditional financial reporting and the misconceptions that many have. On completion, participants will have an understanding of what the numbers on financial statements mean and where they come from. Examples from actual financial statements are used extensively throughout the program to demonstrate the issues discussed.

Intensive Legal Research & Writing

This intensive seminar provides students with the opportunity to refresh and update their research and writing skills.
The grade is determined on the basis of a 10 minutes in class research methodology presentation (10%) and a single research paper satisfying the Upper Year Writing Requirement, that is, 7,000 words in length, excluding notes, bibliography and appendices (90%). The presentation needs to clearly outline the research method and resources applied in the chosen research project.
The paper can be on any legal topic approved by the instructor(s). The paper must state (a) facts (actual or imagined) which do or would give rise to one or more disputed points of law;(b) the order or orders actually or supposedly sought from that tribunal by the party initiating the action, application, prosecution, motion, appeal, etc. The paper itself is to be an argument, involving the disputed points of law, for or against the granting of the order or orders.
Finally, the paper must, as part of its argument, persuade the reader that the literature, research sources, and methodologies applicable to research on the topic have been thoroughly reviewed and considered. Along with the research paper, students are encouraged to submit additional comments which reflect upon the paper, and explain the choices made in the process of writing it.

Lawyer as Negotiator

Law schools have traditionally prepared lawyers for litigation and the courts, although in practice lawyers spend much of their time resolving disputes through forms of dispute resolution, including negotiation and mediation. Lawyer as Negotiator is designed to familiarize students with representative negotiation theory and practice, and specifically how theory informs the development of bargaining strategy in a legal setting. Students will attend weekly lectures, conduct negotiation simulations, and participate in small group discussions and coaching sessions which will introduce and critique the principles of representative negotiation. Students will be expected to prepare detailed negotiation plans for their weekly negotiations as well as a final negotiation held at the end of the semester. Students will be coached and critiqued by dispute resolution practitioners throughout the year and will be encouraged to reflect on and discuss their weekly negotiations in small working groups of either 14 or 16 students. The first half of the course will introduce students to distributive and integrative bargaining techniques as well as the importance of developing a negotiation strategy and a detailed plan for each negotiation. The second half of the course will focus on the importance of power, gender, culture, ethics, and emotions, among other issues, in representative negotiations.

Class Actions

Class actions have become a key element of the Canadian civil justice system. Building on the tradition of public interest litigation, they seek to promote access to justice, judicial economy, and behaviour modification, while supporting traditional procedural values. The interface between these aspirations has generated considerable interest and debate among practitioners and academics alike. In this seminar, we welcome a series of leading counsel and judges to discuss with us topics such as the roles of class counsel and defence counsel, and related ethical issues; costs (who should pay and when and how much) and principles of funding and financing; the role of court-approved settlements in maximizing value for the class; the role of the representative plaintiff and the ways in which the interests of the class can best be served; and parallel and overlapping cross-border class actions. This is an excellent seminar for those considering a career in civil litigation and for those interested in the way class actions are transforming the role of civil justice in society.