Caroline Mandell

2Hi, nice to be with you.

4Well, something like that. I teach decision writing, and of course part of decision writing is decision making and the process that you go through to come to a decision and then to be able to explain it.

6Well, so like everything in the past couple of years, you know, all education has moved more or less to Zoom. So I do all of my teaching for judges and also a lot of teaching in the tribunal community. So a lot of work with adjudicators. We do it all on Zoom now, but in the past, and hopefully in the future we'll be able to be back together in a room.

8So that the, the CIAJ does have a basic decision writing program. That's not something that I teach in. And then there are other courses that are offered through the National Judicial Institute, again through the CIAJ. And then for adjudicators, there are also all sorts of programs, one of which is offered by the Society for Ontario Adjudicators and Regulators. So there's a lot of different options out there for people who want to polish their decision writing skills.

10I'm gonna— just before I answer your question, I just have to tell you how gratifying it is for anyone to say that anything I do right now is important. I have teenagers And nothing brings you down several pegs like having teenagers. So thank you. I think I might dispute the position that you're offering, but I appreciate it. So I'm from Toronto and I, I went to school in Toronto through all of university and through law school. I did a combined master's degree in international relations and my JD in the first year that they switched over from the LLB to the JD at the University of Toronto.

12I grew up not far from where I live now. I grew up in Cedarvale.

14well, so I'm interested to know why, why you— and do you, do you find that you use that background at all in, in your litigation practice?

16Yeah, it doesn't come up as often as I would have thought it might. But, you know, any time that you sort of learn a new skill set, you find yourself drawing on it in unexpected ways. I pursued international relations because I think it's partly a product of when I went through university. So I went through university in the late 1990s, and it was a really exciting time. There was a feeling that there was a sort of, you know, dawning of new, renewed sense of the importance of international institutions. That was the sort of the Axworthy Doctrine, if you remember back to the idea of human security and that borders mattered less than people. And, and so I wasn't actually sure where to take my education.

17I am a first-generation lawyer. I didn't know any lawyers, so I really didn't understand what that meant. And I understood law school to be sort of like intellectual finishing school, not actually as a, you know, a trade school. But near the end of university, I took international law from now Justice Ed Morgan. And within a couple of classes, I went, oh, I see, I get it. So law provides this really rigorous framework for me to examine these questions in. And, and so I thought I would actually pursue a career in academia and sort of, I guess, hedging my bets or doubling on the fun, however you want to look at it. I did that, that double program and found very soon that because the way it worked was you did your first year of law school and then you did the master's and the rest of the JD concurrently.

18I just felt very, very deeply in love with the study of law. I don't know that, you know, there's a lot to love about first year law, but I did, which was unexpected. And so from there, I was, I was really hooked and just pursued that direction.

20Really, I would say that they steered me to the extent that there were always books in the house there— the news was always on. We got 2 print newspapers a day, and I grew up with the sort of deep-seated idea that it was a responsibility to understand what was going on in the world around you, locally, nationally, internationally, and to be curious. So I definitely didn't get any pressure about a profession, you know, a particular profession in one way or the other. And my sister and I went in quite different directions in our careers. But it was important to have a broad perspective. And to this day, I think that it is the responsibility— part of adulting.

21I don't like adult as a verb. But to the degree that that's ubiquitous, and so I'm going to just go with it, I too adopt the idea that it is your responsibility to understand what's going on in the world around you and not just to be getting your information from your very narrow cast view of whatever is coming up on your social media feed, for example. And I, I hope we haven't lost that in this next generation. I worry sometimes,

23Yeah, so I have an 11-year-old and a 14-year-old, and I will be honest with you, I find it very confusing. Not to say that the world that we grew up in was simpler, it wasn't, but I think that there's something profoundly destabilizing about the moment that we are in where Children cannot necessarily trust grown-ups to make decisions that are good for them. My, you know, I don't want to get too political, but to, you know, be raising children when their sort of political awakening happens in the era of Donald Trump being the president, right, and seeing that as sort of the apex of political and moral leadership is very challenging. Because you have to sort of explain that that's— this is not normal.

24This is not how adults behave. You know, we don't act in, you know, completely brazen self-interest. We have to consider our neighbours. And then to, you know, to extend that into the pandemic is also very challenging. We, as we record this, it's the weekend where healthcare workers have been told in downtown Toronto, when you come into work on the weekend, Dress in plain clothes. Don't dress in anything that will identify you as a healthcare worker. My husband is a healthcare worker, and I find myself, you know, and I don't know that this is the right thing to do, but I find myself shielding my kids from the news more than I find myself exposing them to it because it is, it's so hard to wrap your head around that idea that you are, that you are in danger for doing the right thing.

25You're in danger for just doing your job. So I don't have a good answer for you, I'm afraid, but I do, you know, we still do get a newspaper delivered to our door every morning. I leave it out on the breakfast table. And so, you know, you can't tell kids what to do. You can only model what you hope that they will pick up on. And so, you know, in those subtle ways, I hope that we're imparting those same lessons.

27To be mentioned in the same breath as Julia Hanigsberg, and I don't even think she knows this is so exciting. And I wish that the me of you know, 20 years ago or so could know that that was going to happen. I admire her so much, and it's not an accident. So Julia was, you know, working in government at a very high level when I was in law school and figuring out what I wanted to do. And her husband, now Justice Sossin, was a really important mentor to me. I should mention that his mother was also my grade 3 teacher. So I have had the privilege of being taught by two generations of Sossins.

28And so, you know, I think this is probably less true now, but it's certainly true that at the time that I went to U of T Law, there was a real conveyor belt to corporate, to Bay Street. And, you know, those opportunities were, you know, definitely available to me. And I summered at one of the Seven Sisters. I had a good experience. But I knew that I wanted to do, that I wanted to work in the public sector. I knew that that was where I wanted to end up. Up. And there's some strategy involved where if you know that that's where you want to end up— I, when I clerked at the Court of Appeal for my articling year, you end up in the hireback pool for government jobs for a period of time.

29And so I decided to stay in the public sector because that's where I wanted to end up. And so I did that first job at the Ministry and then And really, my dream job was to get back to the Court of Appeal somehow. There's a— at the time, there was a quite small handful. There's now a larger sort of two handfuls of staff lawyer positions at the Court of Appeal, and within two years or so of having articled, having clerked at the court, I was back in a staff lawyer position, and I was there for over a decade.

31So the staff lawyer position at the Court of Appeal sort of entails 3, like, main buckets of work. One is to support the work of the justices on cases, and it tends to be bigger cases that require, you know, more extensive pre-hearing work, post-hearing research. Often the staff lawyer will work with the judge's clerks, but the clerks are, you know, usually working for more than one judge at a time and will rotate out after 5 months. So to the extent that something is going to sort of be on— under reserve for a longer period of time, That's something a staff lawyer would often work on. And the staff lawyers also identify those cases that are coming in that are unusually complex and/or have jurisprudential value.

32Those things do not necessarily overlap, but, you know, often they do. Because the staff lawyers are getting sort of the first look at cases on their way in, when appeals are perfected, the staff lawyer takes a first look at the appeal to assess how much time for oral argument is required. I should say, this is how it used to work, and so I can't speak to things, how things might work now, and especially how they work in COVID times. And then, of course, that time assignment gets reviewed by a judge. And then the staff lawyers also, at the time, and I'm not sure if this is still the case, would also review applications for leave to appeal.

33And again, sort of, you know, assist in getting those cases ready to go to a panel for a decision. And then, you know, lots of support in editing judgments. And also, you know, there were sort of discrete projects there where it was helpful to have additional support from somebody who was a lawyer. So I had the great privilege of working with Justice Mark Rosenberg on the mental health appeals, what was then called the amicus program for appeals from the Ontario Review Board, which were time sensitive, and in later years also assisting him on the fantastic and valuable inmate appeal duty counsel program.

36I think you've put your finger on it. It's, you know, what the best judges can do, and I saw it, you know, over and over and over again at the Court of Appeal, you know, in different ways, because every judge approaches their work slightly differently. Was it says if a judge has a pair of X-ray glasses and they put on those X-ray glasses and they just get right to the heart of the case. Right. And it's stunning. And I saw it many, many times, you know, sitting at the back of Courtroom 1 or Courtroom 10, seeing a judge just, you know, within the first 5 minutes of somebody getting up on their feet, asking the one question that the entire appeal turned on, and you'd often see, you know, quite experienced counsel sort of, you know, take a minute, and you could— they wouldn't say, "I hadn't thought about it that way," but you could sort of see, "Well, oh gee, if I had seen it that way, you know, that's exactly the point."

37And so I think it's first and foremost really important, really important to see your case through the judge's eyes, right? You know, litigators get a lot of advice, and it's good advice to see the case through the eyes of the other side. You know, there's this famous story, may or may not be true, of a grand moot at U of T Law School many, many years ago, and I don't remember which judge it was who told the students when they got up to argue the grand moot, switch sides. Right, because that's the skill of a really good litigator, is to be able to see the case and to be able to articulate the best arguments on the other side.

38Very, very good advice, but I want to extend that idea further to say that you need to see the case through the judge's eyes, which is hard to do. I mean, it requires you to basically get out of your own head to do that. Understand that the judge has a job to do, and their job is to make a decision. Their job is to make a decision and then write the decision. And so what I often tell people is picture what you want the overview of the decision to look like and work backwards from there, because what the judge will have done is really figured out what is what we call the deep issue or the decisive issue.

39There may be more than one. They'll need to have figured out if there's more than one what order they go in, right? So what's the threshold issue? What's the internal logic? Draw me the decision tree. What are the absolutely key narrative facts that I need to understand before I understand anything else about the case? What's the legal framework that I am applying? Once you figure out all of those basic things, because that's what's going to appear in the judge's overview of the decision, then you really know you're seeing it through their eyes, and hopefully you are you're telling your client's story in a way that feels comfortable for the judge because what you want to do is sort of shorten the distance that they need to travel from, you know, where the jurisprudence is to where you want your case to land.

41of course,

43Yeah,

45I'm not going to give you my opinion. I will tell you, you know, what every— well, John Laskin will, for example, say that the factum gets you through the seventh inning stretch. So pick your sports metaphor. Justice Stratas will say it gets you to the third period of a hockey game. I think we have all heard in all types of CLE that the written argument is comparatively more important. It's not to say that oral advocacy doesn't matter. Of course oral advocacy matters. It matters in all sorts of interesting ways, not the least of which is, you know, the appearance of justice being done. But there is no question. I don't think there's any dispute that the written argument is the first impression that you make with the judge, and it's the lasting impression.

46What litigators really need to appreciate is what they see in court is a judge more or less impassively receiving information in the order in which counsel has chosen to present it. That's not the job. What the lawyer isn't seeing is all the work that the judge is doing to prepare for the case, So, I mean, you can imagine how much preparation goes into being able to come to court with that set of X-ray glasses to get right to the point, right? And then all the work that they're doing after the hearing to write the decision. So what the lawyer sees in court represents, in most cases, the smallest portion of time that the judge is spending on the case at all.

47And I do— I think that what I've seen again and again and again with litigators that I've worked with is that intellectually, people understand that the written argument is comparatively the more important, and yet in practice, they don't give it the time and attention that it's due. So I'll often ask people, when you go to argue the motion or the appeal or the whatever, "Do you put an out of office on to let people know that you're not going to be available and it's because you're in court?" And most of the time people say yes. And then I say, "Okay, well, when you were writing that factum, did you put an out of office on?"

48No one ever says yes, right? And that doesn't make any sense because shouldn't you be as singularly focused on writing the written submission, which you know is more important? And so I really want to encourage people to develop a culture where when the work on their desk is the written submissions to court, that people understand that that is as sort of sacred and protected as, you know, when you are standing up and arguing in court.

50Exactly right, exactly right.

52Oral argument definitely can make a difference. Oral argument can change minds. There's no question about it. I would distinguish between those cases where oral argument makes the difference because the written submission was unclear, right? So sometimes the clarifying moments that happen in court were only clarifying because things were unclear before, and those are not the kinds of clarifying moments that you want. So leaving those aside, yes, I think it's I think that you certainly can have the experience of bringing your client's story to life in a way in oral argument and in the give and take, you know, with an engaged judge. I mean, there's nothing better than that, right? And to watch the back and forth between an engaged bench and a really skilled lawyer is just alchemy beyond anything else that you can see.

53And so I really understand why people are so eager to get back into court in person to have more of those experiences. But I would also say that I think litigators take their wins and losses really hard, and that's understandable, and I'm not here to talk anybody out of that. But I think it's important to understand that some cases, the most skilled litigator will lose, and some cases, the most unskilled litigator will win. So, you know, imagine you've gone to argue a case at the Court of Appeal, and you're counsel for the appellant, and you get up and you make your argument, and the court retires briefly and comes back and says, We don't need to hear from the respondent, and they issue their decision from the bench.

54Well, a lawyer can, you know, counsel for the appellant can go home feeling very, very dejected in a situation like that, right? Except I would argue that maybe what that's a sign of is that the written submissions were as clear as they could possibly be. There was no doubt left in the judge's mind. The law just didn't take them where the lawyer hoped, right? There's only so far you can take that. And the oral submissions were also similarly very, very clear. You know, if there's any doubt, you call on the respondent to hear from them. And so it's, you know, it's possible that that in fact, while is, you know, obviously a loss and a painful one in the individual case, it might have been, you know, scored as a win for your reputation for helpfulness to the court.

55I don't think it's a matter of seduction. I think it's a matter of helpfulness. And if you are maximally helpful in a way that let the judges do their job, then over time, you develop a reputation for candor and helpfulness that will serve you. And again, it's not to take away from the idea that you always want the best result possible for your client. But I think we, you know, we should take a broader view of what it means to be a successful litigator.

57So I identify what I would call a few unforced errors, and I think the common unforced errors are writing that factum for anybody other than the judge. So who are some of those other audiences? Well, lawyers will often— if you're a more junior lawyer, you're often writing for somebody more senior on the file, and so you're, you know, taking the first crack at it. I think that's an unhelpful way to look at it because no one really puts their best effort into the first crack. So I think whoever's holding the pen should write as if they are not just the first person to hold the pen but the only person to hold the pen.

58Writing for the client is, I think, an unforced error. The lawyer is the expert. So as my grandmother used to say, you don't tell the surgeon how to operate. It's perfectly fine to have the client sign off on the factum, but in my respectful view, they shouldn't have a final say on, for example, what the tone is, because lawyers know better what kind of tone will fly with the court. And that's not something that you would expect the client, frankly, to know better. And then the most common unforced error is to write the factum for yourself, right? To write it so that you figure out what are the relevant facts, and you're sort of on a journey of discovery of what are my issues.

59And so a diagnostic for that would be when do you write your overview? Do you write your overview at the end to reflect the path that you've laid out for yourself, or do you write it at the beginning because you have it figured out and now you're ready to communicate it to somebody else? You know, I put my thumb on the scale on the latter. You write your overview first because you are now setting out the roadmap for your reader. That's not to say that you don't write the first draft of the factum for yourself to figure it out. But I really strongly encourage people to do that in a separate Word document outside of the template that you use to actually write your factum.

60Figure it out for yourself, and when you're ready to teach it to somebody else, that's when you open the fresh document and you're ready to communicate to the judge.

62That is a sort of level of detail that I can't speak to, so I'm gonna pass on that one.

64I think we're in a period of transition. I'm pleased that I think we are as a profession generally more ready to embrace the idea of plain language. And when I say plain language, I don't mean dumb it down. I don't mean make it simplistic. I mean that there's a sort of formal definition of plain language, which is that in the time and with the effort your reader is willing to spend, they can find what they need, understand what they find, and use what they find to meet their needs. So that's a really robust definition, and that sort of encompasses structure as well as substance and style. I think we as lawyers generally are not as effective in our written communication as we are in our oral communication.

65I think we have a sense that we have to We don't do a really great job of distinguishing between professional writing and formal writing. I think professional writing is always what you're aiming for, but I think of it sort of like a dress code. So, you know, you want to be dressed appropriately for the occasion, and some of the writing that I see, although as I say, I think this is changing, is not just professional but, you know, formal where somebody is not just wearing a tuxedo, but they're wearing, you know, a top hat and a monocle too, right? So it's very outdated. We need to understand that all of our audiences need prose that is easy to read and understand the first time.

66And that goes for judges even more than for other audiences. Because the burden on judges and the amount of stuff that they need to read is is so tremendous that they really do need the shortcut. They need the simple sentence construction, and they need the point first. We all know point first and transitions between paragraphs and useful headings and subheadings. There's a really, really good study about preferences for plain language over what we would think of as traditional legal writing. And this— what the study shows is something that seems like a paradox, which is that people's preference for plain language goes up with with education level. So if you read something and you're comparatively less formally educated you have a higher tolerance for reading stuff you don't understand because you assume that the problem lies with you.

67If you're comparatively more formally educated and you read something you don't understand, you're more inclined to blame the writer. And so for legal writers, what you really don't want to do is create antagonistic readers, and a confused reader is an antagonistic reader. And so whether it's your client or it's, you know, co-counsel or it's opposing counsel or it's the judge, think about what you prefer. What do you like to read? And then practice those same principles when you communicate, because after all, it's just communication. With anybody else. So really, you know, it's that basic principle of, you know, do unto others. Write for someone else the way you would want to read it.

69So what would be an example of something where you would be worried that you'd be insulting your audience?

72I just, I don't see it. I agree with you that you don't want to make something simplistic, Right? So you don't want to strip the nuance out of something that requires nuance. You don't— so that's, you know, that's, for lack of a better term because I really don't like it, you know, maybe that's dumbing down, but that's not what we're talking about. What we're talking about is understanding what your reader needs, what they already know, what you need them to know, and what steps you need to lead them through to get them to what you need them to know. That's what a good teacher does. So I don't think anybody accuses a really good teacher of dumbing things down for their students.

73What a really skilled teacher does is understand the you know, the qualities of their students and then meets them, you know, where they are and, you know, takes them collaboratively by the hand and, and takes them on a learning journey. I think that's the goal. So, and when you mentioned reading level, I think it's an important point. There are, you know, when you're finished your Word, your spell check in Word, you will get user readability statistics on your document. If you didn't know that, it's there. And so it will give you a reading level. Those algorithms are only, they're useful, they are a tool. You know, I think that if anything comes back, let's say, at a reading level 17, you might want to go back and revisit it because no one really wants to read at a grade 17 level, even if, you know, functionally, if you add up all the years of expensive post-secondary education, perhaps we are at a grade 17 or beyond.

74Similarly, and this is an exercise that I run all the time when I teach decision writing, I give people a really, really, really hard-to-read version of a recipe. And I ran it through— I wrote it and I ran it through a readability score and it comes in at like a really nice grade 8 level, but it's not useful as a recipe because it's not formatted as a recipe and it doesn't tell me what ingredients I need first and it's sort of this stream of consciousness and I'm the only person it's useful to. So the reading level is only one metric and it doesn't, you know, really tell the story of how readable your prose is.

75And then the last thing I'll say on this is some of the best writers— and I often commend people to read anything by Michael Lewis, who I think is probably, I mean, to my mind, the most effective nonfiction writer out there right now. Read anything by Michael Lewis. It's a pleasure to read. He writes about arcane, seemingly very boring subjects. In a, you know, non-gimmicky but very readable way. I don't think anyone would accuse him of dumbing things down. So that's just an example. And so to the extent that you, you know, anybody finds this challenging, read, read a lot, read widely, and it will sort of start to give you a sense of what good, clear writing sounds like.

76Sounds like, because there's a— there's an auditory element to it, right? It's not just what the words look like on a page, but it's how they come to life in the reader's head.

78So many, many, many years ago, my brother-in-law came over to learn to cook a meal because he wanted to impress his then-girlfriend, now-wife, my sister-in-law. And he was in his residency training at the time. He was doing a surgical residency. And so when it came time for me to show him how you smash a clove of garlic by, like, you know, putting the knife down flat and smashing it with your with your fist, he balked. He said, I can't do that because I can't risk injuring my hand. And that really stuck with me because as lawyers and judges and adjudicators, the only body part we really need is our brains. And nobody teaches us how our brains work.

79And nobody teaches us how to protect that most important body part. And there is a very strong association with very high levels of burnout and, and poor mental health With the way, as it turns out, and this is sort of what I've discovered as I've looked deeper and deeper into this, our brains don't have an infinite capacity to process information. We don't have an infinite capacity to run on, you know, just a persistent state of sleep deprivation and so on and so forth, to be constantly interrupted, whether it's by, you know, pinging in our inbox or or text messages or, you know, whatever it is. We're not superhuman, right? We like to think of ourselves as maybe that we are, and because we're very, very smart, our brains can do all sorts of things.

80But in fact, our brains have limits the same way that all of our other body parts have limits. And so I wanted people to understand more about the neuroscience of how their brains actually work. So that first of all they could be more effective advocates on the one hand and communicators on the other. So it's sort of both sides of the lawyer-judge equation, because it does sort of matter what order you present information in and how you scaffold new information and pair it with old information. That's the communication piece. But then also stuff like attention and executive functioning, these are all really important concepts for us to understand to build and then sustain careers in the long run.

82So I am that fresh pair of eyes who is going to look through your— look at your case, not I'm not on your side. I'm not on the other side. I'm on the judge's side. I know how to prepare a case, read through a record, basically put myself in the position of the person who is going to be listening to your arguments, asking the questions, because I, for many, many years, sat at, as I said before, at the back of the courtroom listening to the interplay. And, and so I understand, you know, from working with not just, you know, a few judges, but dozens of judges, how judges do their work. I understand it's a job and I understand what the job is.

83And so I will often be brought in on sort of, you know, high-stakes case where, you know, there's, you know, an important jurisprudential issue and/or, you know, something that is very important to the client, which is, you know, any kind of case can fit that bill. And what I do is I moot the case. So this is something that's, you know, really common in the United States, and I don't think we have a culture of this as much in Canada. Yet, although, you know, I think some firms sort of do this internally, that they'll pull a panel together. What I bring is, you know, is ignorance of your case, but, you know, a sort of robust knowledge of, you know, of the law generally, because that's what a judge is, right?

84Any judge is a lay reader when they open up your factum. And then by the time they come to court, they're, you know, they really understand your case and they've read the relevant case law and they've read the statutes and, you know, they, they are ready to hit the ground running asking questions. And just so people understand, I mean, they're asking those questions because they're trying to figure out how they're going to make their decision, right? And so and so that's what I do in my consulting practice.

86Thank you. It's been a pleasure for me as well.