Michael Lesage

3Oh, well, that's certainly fine. So thank you, thank you very much for having me today.

5So it's certainly kind of an interesting story. I, I first ran for bencher in 2015, and I, I got— I, I really wasn't very familiar with the you know, with the Law Society at that point. I, I got an email from the Law Society that mentioned the upcoming bencher election. So naturally, I, I understood they were asking me specifically to run So I, you know, I responded, I took up the mantle. I said in 2015, you know, guys, let's try to push the court system for e-filing. You know, I like my horse, I like my process server's horse, but I don't think we need them anymore to walk documents to court.

6And so I came really close that time, and then I ran again last year, and did a little bit better. I came 21st the first time I ran, and I was able to come 18th last year, and so was recently elected as a bencher with the Law Society.

8Would have been actually a couple, a couple months ago with Ms. Donnelly's, I guess, election to Treasurer. That freed up a spot that was not, I guess, protected for people in the different regions, and that's when I was elected.

10Yeah, correct.

12The only real information I have is from the from the feedback that I received during the campaign. Certainly, I think I got a lot of support from the private bar, you know, to which I belong, but within that bar, my support seemed to be very, very diverse, ranging from sole practitioners to people at small firms, people running small and mid-sized firms, and to my somewhat surprise, a number of the, you know, partners at large firms supported my candidacy as well. So, I really do think I drew support from a pretty broad cross-section, certainly of the private bar, as well as, I guess, lawyers who have, you know, family, friends, or sympathies for those of us in the private bar.

14Yeah, well, I practice all across the GTA. My last court trial, believe it or not, was Peterborough. And, you know, just kind of the way things worked out. But I think a lot of my campaign was just, I took my message directly to lawyers. I was able to leverage technology to, you know, send a lot of emails to lawyers all across Ontario with my message. I tried to make my messages short and somewhat, you know, I guess, on point and also catchy. And I know from some of the responses I got that people who didn't receive them, they would forward them to their friends. You know, probably my most famous email asked whether the Law Society should own a private jet, because when you've got a yearly budget of $140 million, you know, there's a lot of money there.

15You're not constrained with normal people problems anymore.

17Yeah, so it's a great question. So I think at the end of the day, the platform largely came down to a dollars and cents platform. There's a lot of challenges facing lawyers in private practice, whether it's finding clients with the ability to pay, which is probably a paramount one for a lot of lawyers. Whether they are paid directly by the clients or previously by legal aid, who's seen their budgets obviously, obviously chopped. So I really focused on that. And I think there's a lot of issues that affect those lawyers, including Law Society fees that are some of the highest in North America. I think that's a problem. And, you know, that's certainly something that I continue to push to have addressed.

19Yeah, I think my time in the US was invaluable for a number of reasons. You know, one of the chief reasons is, you know, if when you started driving you had only ever, you know, driven a Yugo or a Lada, and you'd only ever seen those types of cars, you might have figured, well, sure, it breaks down every 3 kilometers, it needs 5 liters of gas for those 3 kilometers, it's expensive to fix, the heater doesn't work, but sometimes it gets me from point A to point B, so it's serving its purpose. So you might not realize that the Yugo or the Lada is not actually a good automobile, especially in comparison to something like Tesla.

20And so coming from the American system, you know, where when I left in 2011, almost everything was already filed electronically. You know, I didn't have to pay to have documents submitted to the court, you know, for a process server to get on their horse and walk them there. You know, so it was just a new, new experience for me. And, you know, it really kind of reminded me of that Yugo or the Lada, you know, what is it we're doing here and why are we doing it? Why are we letting the Americans beat us like this? And, you know, candidly, I'm somewhat competitive, you know, being a litigator, I guess that comes somewhat naturally.

21So I don't like to see the Americans beating us at the easy stuff. And so that's something that always annoyed me.

23Yeah, I'm originally a Canadian. I went down to the States for law school and I worked down there for about 5 years. And, you know, I came back a little after their housing bubble burst because certainly at that point the pastures were quite a bit greener here in Ontario and Canada. Which was still riding pretty high on the commodities boom.

25Yeah, so great, great questions. So basically, after undergrad, I wasn't able to you know, secure a position that I thought had a, you know, had— certainly it wasn't one that was taking me where I wanted to go. I had an economics degree. I, I wasn't, you know, wasn't hired by any of the banks or investment companies. And so I started looking at options and law was certainly something that, you know, probably true of a lot of lawyers, it was available And so I knew I'm not much of a student in terms of, you know, I just don't really enjoy the whole school experience other than test time perhaps. And so I, you know, looked, they had a wonderful tool in the States where you could enter your GPA and enter your LSAT score.

26Which you could then cross-reference with the U.S. News and World Reports rankings of law schools and get a good idea as to the best, you know, best school you have a chance to get into. And so that's how I ended up at the University of Pittsburgh.

28Correct.

30So obviously I don't have a lot of experience with Canadian law schools. Certainly in comparison, my undergrad, it was, you know, in many respects just on a different level, you know, just in terms of the resources available to a state school like that. Their athletic facility, you know, one of them that had their basketball team They'd spent something like $140 million on it at the time, blasting it into the side of that hill, as you're familiar, because I believe you went to Pittsburgh as well. A lot of my professors were from Harvard or Yale, or certainly in a lot of cases, probably the top 6 US law schools. Certainly some of the brightest professors I've ever been in front of.

31And, you know, the sections were generally 80 people, but the small sections were 20. And I really do credit my legal writing teacher for making me a much, much better writer in all respects. So, you know, I certainly think quite highly of the educational experience that was offered.

33Yeah.

35Yeah, so Pitt was full Socratic method, and in my view, it's about the least effective way to teach something. You know, I guess a simple example is, you know, to teach someone about your shirt, you might start off with, you know, well, it's not a car. Well, okay, you know, is it a boat? Is it a plane? Well, you know, it's not a vehicle. Okay, is it a person, is it a place, is it a thing? And so, you know, and obviously a lot of what happens in law school when you really break it down and strip away a lot of the fancy words, they're basically giving us cooking recipes. You know, there's a recipe for breach of contract.

36It involves, you know, a legally enforceable agreement that's breached that causes damages. And, you know, certainly I think that my example I just gave you is a much more effective way to communicate that to someone, perhaps, than the Socratic method.

38Yeah, so, you know, basically, I obviously, my background's economics. I, at that time, thought I was going to move and reside in the US permanently. And so I went to, I actually was able to finish my law school with a course at the University of Miami, which is a phenomenal place to do 3 credit hours over 1 semester. So I enjoyed my time there immensely.

40Yeah, and if you ever get a chance, I highly recommend you check out the university. In my view, it's everything, you know, a school university campus should be. They have a nice beautiful lake in the center of campus. Off the center of campus, they have the student center. They have a nice student pool around there. Then you've got some of the other, you know, important buildings, the athletic facilities, one or more of the student bars, and then kind of tucked away, you know, around the unimportant stuff like the parking lots, you have some of the academic buildings, which at the time I had much, much less interest in.

42Well, yeah, that was just my last semester. I still graduated from Pittsburgh and then I took the Florida Bar and managed to lock into a job at a very well-respected regional law firm there where I worked for just under 5 years, you know, doing litigation, primarily some commercial litigation, insurance coverage, and personal injury.

44Yeah, so American litigation practice, I simply describe it as elbows up, you know, just from the old hockey analogy. There are effectively no rules of civility. And, you know, my first trial was about 5 months out, and I would have had my first jury trial, you know, several years out. My firm essentially gave me great responsibility and said, you know, here, Mike, there's a jury trial to do. You know, you've seen one before, now do it yourself. And, you know, it's also slightly different procedure in that you write the jury instructions, you do a full voir dire of the jury beforehand. And then essentially you have, you know, something that's roughly equivalent to what a Canadian trial would be.

46Yeah, so there are certainly— in the US, in law, like many things, the important outcome is simply winning, and that's what the system rewards, and the system doesn't necessarily penalize however you, however you get there. And so a story that I remember part of that illustrates this in terms of just how far things go in the States is there were actually two law firms in Tampa a few years ago that were in trial and they hated each other. And you can actually find this on Google. And so the one firm found out where the other firm was going after trial each day in terms of food and drinks. And so sure enough, one day one of the partners was over at that bar after trial and he was up at the bar ordering a drink and he just so happened to catch the eye of a pretty attractive woman who took an interest in him.

47And so they're talking for a little bit and one thing leads to another and all of a sudden she has to leave because her car is in the parking lot just across the street. And she has to move the car from the parking lot. But, you know, if he was able to move this car for her, then, then of course she'd be able to stay. And so this lawyer, you know, he's a gentleman. He sees how well things are going. So he leaves from the bar, he gets her keys, he gets in her car, he pulls onto the street. And as soon as he does, he's pulled over by the sheriff and arrested for DUI.

48And so it later came back that the other firm had basically set this whole thing in play with both the sheriff as well as with a female employee of their office just to try to get an advantage at trial. And that actually did lead to some disbarments. But that's just an example of in the States, the whole The whole point of it is simply to win, and there are very limited penalties for, you know, for going to any means to do so.

50So I'd love to say I did, but one of the, you know, candidly, the job prospects, especially for relatively young associates, were much better in Ontario at the time. The US has a huge glut of lawyers. They graduate about 45,000 to 50,000 a year, and there's only a need for about 25,000 of those in terms of positions that require a law degree. So the working conditions for a lot of associates, generally speaking, are not great in terms of either income or benefits or even number of work hours. Because when you have that sort of surplus, you know, I guess a little bit like our articling crisis, all of the cards are held by the employers and, you know, none of them are held by the associates.

51And Certainly, I was looking at what I was doing and working where I was would, or even laterally, would not have allowed me to achieve my financial goals. And being in the US generally, one serious accident and I'm bankrupt. So certainly that, and I couldn't start my own firm. So all of those things together certainly encouraged me to come back.

53Yeah, you know, basically in the US, obviously everything is private health insurance. Health insurance plans typically have, you know, some combination of copays and deductibles. And, you know, if you end up in a, you know, if you're in a very serious accident and in the hospital for a few weeks, in an increasing number of cases, you can exceed the policy limits. You know, you, if you have $1 million in coverage, maybe you end up owing $1.2 or $1.3 million. And you know, at that point in time you declare bankruptcy and say, you know, life was, life was great. I just enjoyed this working, you know, for the last years, you know, 6 years so much for free that I'm willing to rinse and repeat the process.

54Which didn't make a lot of sense to me.

56I did, and I had the best, best possible reason for starting my own practice because I got fired from the firm I was working at. And so that certainly gave me great impetus to go out on my own. Especially at the time, I found that there was not a big lineup of firms looking to hire someone with US experience who'd recently been fired.

58Yeah, it was certainly a combination of both. What I, what I really wanted is what I've largely built, this boutique firm that allows me to have a smaller number of clients where I can dedicate you know, an increased amount of time to their files. And as you can probably tell, I, I like math, I like numbers and so I— and statistics. So if you have 2,000 hours in a work year and you have 200 clients, obviously you can dedicate about 10 hours per file per year on average. And, you know, obviously if you have 40 or 50 clients, you can dedicate substantially more time. So that, that was kind of the balance I was hoping to, hoping to, hoping to achieve, and I largely have over the last few years.

60So certainly a good question. A few of my favorite cases, I, you know, they're, they're about to go to trial, so obviously I've got to move down somewhat, and you know, it's hard to name Certainly hard to name a favorite. I can tell you the most memorable.

62Exactly. I can tell you the most memorable was I was covering a discovery for another colleague in my firm, and it was a Family Law Act discovery of the husband. The husband was not a particularly happy claimant. Or I guess happy person, generally speaking, did not really want to be part of the process. And he made that quite clear relatively early on in the discovery, went after, you know, some of the introductory questions, you know, tell us your name. Well, you know my name, you know, and, you know, what's your relationship to, you know, to the plaintiff? You know, I'm the husband. Why are you asking such stupid questions? You know, after a little bit of this at full volume, he was pretty much ready to storm, you know, jump across the table, and he stormed out of the discovery after, you know, swearing at the defense lawyer, and I was just thankful that I didn't have to tackle him, you know, before he physically assaulted this defense lawyer and, you know, allowing her to get out of the room.

63So certainly that was the That was certainly the most memorable.

65Yeah, that was in Ontario here.

67So in terms of formal background, the answer would be no. But, you know, within the last few years, I've started to educate myself. There's, you know, phenomenal platforms out there like Coursera and edX. And so I, last year, for instance, I finished CS50, the Harvard introductory computer science course offered for free on edX. I'm sure I spent much more time on it than a lot of their undergrads did for a number of reasons. But you know, it's just such a phenomenal you know, it's such a phenomenal, I guess, area at this point in time. And I think it's going to revolutionize not just this industry, but society. And, you know, likewise last year or I guess the year before I'd attempted to build a document automation platform for use in specifically some of the higher volume firms.

68I wasn't able to find, I guess, potential buyers for it, but I did get it up and running, got it developed, and certainly it was a phenomenal, developing software was phenomenally interesting on a number of levels.

70Well, certainly not, because we are trying to get now where they were 10 years ago. And, you know, candidly, you know, a simple example would be if I want to file a document in the States, and below my signature line, I simply do a certificate of service saying I've served this. Although that was 10 years ago, they may have eliminated that because the electronic service automatically sends notification to everybody. And in Ontario, we've of course found a slower, more cumbersome way to accomplish the same thing by requiring a formal affidavit of service and as well requiring that to be commissioned by someone different than the one who served it. So I would be very surprised if we have done in one month what the Americans have been working on in one year.

71Or sorry, you know, for 10 years.

73It was state and federal in the state. So even, even the small county I was in of several hundred thousand people, they had electronic filing 10 years ago.

75I think, you know, one of the largest things is going to be— they're just— I think they're getting much closer. I think they do still need to revise a number of the rules just to recognize the role technology is playing. At some point in time, the court system, you know, will get a little bit better at realizing, you know, the plaintiff, for instance, is submitting documents 1 through 10, the defense is submitting documents 11 through 20. This is our universe of documents, and I have seen we're kind of getting there with CaseLines, and I think that we do need to take a look at, you know, if we're submitting documents electronically, do we still need to pull out these 17th century rules of evidence or 18th century rules of evidence, or could we perhaps say that documents are presumptively admissible unless someone could identify a specific objection to them?

76So I think that's largely where we have to go. We're certainly doing much, much better now with Zoom. I know until recently the court system had toyed with the idea of CourtCall, because it was more cumbersome, more costly, and didn't work as well. And thankfully, it sounds like that, that proposal was defeated.

78Yeah, that's my recollection as to how PACER works, which is the US system used by their federal court system.

80You simply file your documents and obviously if you're filing a statement of claim, personal service is still required. But after that, everyone needs to provide their email address. One of the foundational requirements. If you tell them, you know, you'd like paper documents, they would probably tell you, you know, they'd like to be millionaires or billionaires, but it's not happening. So, you know, basically that's the—

82Exactly.

84And I, I guess it's introductory because I know I filed through the Ontario, I guess, just the regular filing portal, which has been expanded for other documents. And so that rejected a filing a few days ago until I made up an affidavit of service. And then obviously CaseLines, I've only used it in one case and, you know, basically things were filed. Actually, I guess it wasn't even CaseLines. I guess it was Sync, which was their— Yeah, Sync.

89Yeah, so great, great question. So certainly as a bencher, what I do have is a larger platform to bring these issues to the fore, but at the end of the day, it really depends on the profession actually saying, or the public saying, you know, it's time for a change. And obviously, we in Ontario, we have some pretty dubious stats in our court system in terms of trial time, where we're much closer to Pakistan in terms of how long it takes to get things to trial than we are to the US and the UK.

91Well, and I think that, you know, you certainly make good points about Russia and the stats that I'm relying on are from the World Bank, time to enforce contracts. So it's looking, you know, basically it's an apple apples comparison. And certainly in my experience, the same holds true. Or actually, you know, probably personal injury has the slowest trial times just because we, you know, in Ontario, from a public policy standpoint, we really devalue, I guess, the lives of personal injury victims. You know, I think the same is true to an extent of people and family law disputes. We just side, you know, we're not willing to dedicate the resources to have your matter tried in an efficient time, and we're not willing to put in place, you know, appropriate procedures to see that happen.

93Well, I think it's the one I gave you, that, you know, basically what comes into play in arbitration which is evidence is presumptively admissible, you know, unless there's a specific reason for it to be excluded. And, you know, I think especially in bench trials, if you want to draw something with a crayon and say this is, you know, admissible evidence, at the end of the day, what is the harm of doing that in most cases? Are you really concerned that a judge is going to be fooled by your crayon drawing, you know, is that what the case is going to turn on?

95Yeah, it's the same in most arbitrations. I did a commercial arbitration arbitration on a multimillion-dollar claim I guess a few months back. And we agreed essentially to those same rules and the arbitration went with 4 or 5 witnesses and 1 expert witness in less than 2 days. If we had to use the public court system for that, it would have been at least 6 days. And a large reason for that is simply the different rules of evidence. And you know, the lawyers would have behaved differently and required formal proof on everything.

97Well, at the end of the day, you know, is it a feasible, you know, workaround potentially depending on who your counsel is? And, you know, that's actually an interesting topic because for civil admissibility, as you know, you basically have to satisfy two questions, one of which is authenticity of the document, and then number two, is it legally admissible, which typically requires an exception to the hearsay rule. And for whatever reason, our default requests to admit only address authenticity. So you would actually have to double, double your questions to get to admissibility. And obviously it's dependent on the other counsel saying, you know, is it my, is it my interest or my client's interest that I admit these now so that we have a more efficient trial?

98Or would it be better for my client if I don't admit these? And then I, number one, I can bill a lot more. And number two, I can drive up the opposing side's bill substantially more. And until we change those incentives, I don't think requests to admit are, you know, a good workaround. The better workaround is just saying we've got rules that work better in small claims court arbitration. You know, let's apply them as well to superior court and spend more time deciding things on the merits and less time, you know, getting into esoteric evidence, you know, adventures.

100Well, Pulat, I'm always happy to come back on. So just, just let me know. And it's certainly been my pleasure to be here today. So thank you very much for inviting me on the show.