Monique Jilesen

2Hello Pulat, how are you?

5I guess. Yeah, well, good. I was called in the year 2000, so I guess we're into year 23 now. It's hard to admit.

7So I'm very human. Let's just be clear about that. Yeah. So I guess it's sort of a long story and a short story. I was born in Ottawa. I think people find my story of interest. We actually told it at the firm just before the holidays, before I became managing partner. I actually, I don't mind telling you and your listeners, but at all about my story, but I'm a weirdly private person. So I actually don't, I guess I now just have to get used to it, talking about myself. But I was born in Ottawa of a single mother. We lived there until I was 5, and my mother was a nanny. So we, when I was born, or I presume I actually, I mean, before I was born, I don't really know.

8I wasn't there. I guess I don't remember what happened when I was born either. But the story as I know it is that She was hired to help support another family where the mother had epilepsy, which was not well managed at that, you know, now we're talking, I won't, you know, when I was a baby, many more than 23 years ago. And so we lived on the 3rd floor of a house in the Glebe in Ottawa, where she took care of me and my friend, you know, who ended up becoming my friend, but the child of the family in whose house we lived in, and she took care of both of us. And and as I said, we became great friends with that with that family.

9But those were my, those were my early years. And then my uncle was So my family, my mother's family lived in Oshawa, and my uncle became sadly very sick. So my mother moved to Oshawa, back to Oshawa with my grandparents and my uncle to help support the family through my uncle's illness. And so I grew up really with my mother and my grandparents and my then 3 uncles. Sadly, my youngest uncle passed away through that, after that illness. And so I was raised really by that, that, like, that, that was my family— my grandparents, my uncles, my mother— who all took care of me in various ways.

10And my grandparents ran an antique business, and so I grew up at antique shows and malls in the city, all across really the GTA and not just antique shows but flea markets. I'm a flea market kid. And so yeah, I would have been, you know, if you ever go to a flea market now, like that 8-year-old who just sits there and looks cute and tries to get people to buy the things at the flea market. I think I did okay.

12No. So that's the, that's the thing. I was did not know a lawyer. I don't think I certainly did not know a lawyer. I barely met a lawyer. I don't have any recollection of meeting a lawyer before walking into law school on the first day. So for any of those people who are listening about whether you can succeed in those circumstances, 1,000% you can. It's a little bit terrifying, but I'm not going to suggest it's easy, but you absolutely can do it. I wanted to be— I think somewhere in my treasures, a word that Tom Curry uses often, in in my treasures at home, like the things from elementary school and high school, I have a piece of paper from like the, the career course you take now.

13They take it in grade 10, I think. I maybe it was younger when I was in school, and back then it was a dot matrix printer. I don't know if you were old enough to remember the dot matrix printers with the like little—

15the little holes on the side. And so I have a printout from the, from the printer about, you know, you put in your various aptitudes and everything, and it's just like what career you might have. And mine was, mine was lawyer. Although another weird fact about me, I did not have a TV growing up. So my grandparents had a TV but we didn't have a TV in, in my house. But one of the shows that I did get to watch from time to time when I was permitted a TV in a house that was not my own was LA Law. So, you know, I don't know if it was that.

16Also, Eddie Greenspan's book, For the Defense, was inspiring to me. And I just wanted to be a lawyer. I wanted to be on my feet in a courtroom. I had no idea what I was talking about, obviously, because LA Law is not a good representation of what it's like to practice law, just like Suits or other things are not a good representation. But I imagined that that's what I wanted to do, and then it all sort of worked out in the end, even though I had no idea what it meant to be a lawyer.

18I loved law school but I will confess that I don't remember really very much about my classes at all. That the highlight for law— from law school was working at the clinic. So I went to Osgoode. I was a division leader at CLASP and the criminal division. I did more trials in my— those few years at CLASP than I think I did in the first many years of practice because it was criminal law. And boy, did that ever just make me want to do more of that.

20Did I make a lot of friends? Yeah, I mean, it was a— one of the things I loved about Osgoode is there's room for everyone, right? It's not— and I don't know about any other law school because I didn't go to one, but it was small enough to be a community and big enough to really have just a really interesting mix of people.

22Yeah, Alan Young was there. Yeah.

24Did he teach me criminal law? So that's a good— I told you I don't remember any of my classes.

26just,

28I did okay. I wasn't the gold medalist or anything, but I did just fine.

30Correct.

32So recall that this firm was founded in 1992, so it was just 6 years into the firm's existence, and it was, I believe, the first formal student recruitment, like with the cocktail party and everything. And we don't do those anymore, but you know, that classic thing. And I was the third articling student. So as it happened, a friend of mine from undergrad— I went to Queen's— Was working as a as like an intern, kind of like not a formal summer student process, but because there was not a lot of formality of anything at the firm at that time. And she was like, I work at the best litigation firm in the country.

33And I was like, Sure, you know, like, what are you talking about? And then back at McMillan, like, I wanted to be a litigator, and McMillan was great. Let's be clear. I have very fond memories. Marcus Conan, Justice Marcus Conan, was the head of the student program at the time, and I had a great summer. But I wanted to be a litigator, and so And, and by this point, I'm actually starting to learn something about the practice of law and law firms. And you know, before the summer student interviews I had no idea what law firms look like. Like, the idea that I went into those without doing all my research— and I found law firms generally overwhelming when I did those interviews.

34The idea that I landed a job to this day is shocking to me. But, but by the time I was then applying for articling positions, I thought, okay, I want to, I want to do litigation, and are there litigation-only places? And there were. And so I applied. And so then I asked some of my colleagues at McMillan about this Lenczner Slaght place, and they were like, yeah, those guys are amazing. So I thought, okay, well, maybe it is the best litigation firm in the country. Maybe she's not exaggerating. And I interviewed and, you know, was the— through the first formal student recruitment process that Lenczner Slaght offered the job. And you know what I did to them?

35I told them I had to think about it. Oh my

37Yeah, I asked my mother. You know, here I was on this Bay Street firm that people had heard of, and from my perspective at that time, here was— I was applying to what I understood was a high-profile firm with amazing people. But I, guys I know students listen to this, so I want to be careful, but Austrians don't know— I didn't know anything. I really didn't know anything about anything. And I guess I had some sense that I didn't know anything about anything. So I was worried about making the decision. And my mother, who was sage, was like, why not? Like, why not? If this is what you're hearing, I know you like the other place, but if it's, if it's going to be even better potentially, then go ahead and take the risk.

38What I then imagined was a risk, which was not a risk even a little bit. And so I did. Took the job, but I just made Ronald Slaght wait a bit longer than he might have appreciated waiting before I told them.

40No. So the, the obviously the 5 original partners were there. And Posno, who was one of the first people to join the firm after the original 5. We had now Justice Peter Osborne was here who had come from Goodman's. I think both Peter and Anne were from Goodman's. Risa Kirschblum, who had clerked at the Court of Appeal. So this was her first place after clerking at the Court of Appeal. Tim Gilbert, who's now obviously the founding partner of Gilbert's. I spent my articling year doing a trial with Tim. Some very good memories of that as well. Who else was here? Louis Sarabia, who's a partner at Davies now. And who am I forgetting?

41Larry Thacker, who remains a partner at the firm. I— oh, and Linda First, who's also no longer a partner with the firm. But they were all associates. So the first I think Tim and Linda became partners of the firm in my first year. But it was— we were all— we were all— I mean, I wasn't an associate, I was a student. But it was the 5 founding partners plus a group of associates.

43Oh, like 9 months. It was a very long trial. And we lost and we won and then we lost in Rodeiro versus the Royal Bank of Canada is the leading case for you can't win a case on the basis that if you haven't pled. Justice Spence made a finding of liability based on a theory of the case that we hadn't pled or I think argued to be fair. Court of Appeal didn't think that should work. I think it's still the leading case.

45as an articling student on the Rodeiro trial. I did everything. I mean, I for sure, if it had been permitted by law, I would have done a witness because poor Tim did every single witness. I mean, again, I can't get my head around and what that trial would have been like. But it was me and Tim, it was just the two of us in a massive trial. I, I, I took notes, I did the legal research, we met with the clients, we were— was a very close relationship with the clients, prepared the witnesses. I don't— honestly, in— to some extent, nothing different than I do today, except for I actually today we'll do the witnesses.

46But Tim and I were a team. I felt like we were a team. I think he would say that. I don't know, you'll have to interview Tim, but my memory of it was we were an unstoppable team. I mean, eventually, unfortunately, stopped, but it was quite the experience.

48So you can't win every case, unfortunately.

50Exactly.

52No, no, I did other things, and I extended my articling a little bit because the trial just kept on going and going. I remember it was actually an Alan Lenczner case that he dumped on Tim, because that's dumped in the nice way. And I'll never forget the day Alan was— we were walking up to court and he said, okay, and he was telling me about the case as we were walking up to court. I knew nothing about it, and then it ended up being my entire articling year. It's what I remember the most clearly from the articling year because it was so— such an intense experience. But No, I would have I would have done a bunch of other things, supported all of the other, mostly partners.

53I mean, one of the greatest things about being a student and a young lawyer at that time, and it is a thing we are doing our very best to replicate, is the experience to see each of Lenczner, Slaght, Royce, Smith, and Griffin how they practice how they advocate. And I absolutely, whether it was in my articling year or in all my years of practice until today, because I still at least see Peter do work, be able to take from there the way they practice and choose the things that worked for me. And one of the greatest things about seeing them practice is even if you take Alan Lenczner and Ronald Slaght, they're very different advocates, both extraordinary advocates, but very different.

54And so it teaches you that I don't need to be Alan Lenczner. I don't need to be Ronald Slaght. I can be Monique Jilesen. And I don't even— like, today that means something different than it did in 1998. But in 1998, it really— and the years that followed, it really meant something that I didn't have to model after one person. I could figure out how to be my own advocate.

56I don't remember that one.

58Oh my God, you— if you find a lawyer who answers that question and said, I never had any doubts, I'm sorry to say they're lying to you. Of course you have doubts along the way. Am I good enough, strong enough, smart enough, talented enough? Is this work too hard? Can I handle it all? You know, whatever. At some point I had, you know, 2 kids under the age of, you know, my kids are 2 years apart from each other. I had the benefit of having a spouse who stayed at home during much of that. But, you know, one still likes to be with one's children and children at those ages have tantrums and get sick and it's hard.

59It's not just working hard. It's just— I'm not a huge fan of the word balance because it's— but figuring it all out is a challenge. I always say, because it's true, people ask, well, why did you stay at Lenczner Slaght? Why did you stay at the practice when so many people don't and women in particular don't? It's in some ways— and in some ways a hard question, but in some ways an easy question. The easy answer is two things. One, the people, and two, the practice, the nature of the work. The people are the most important, the most fundamental. If I didn't have the colleagues that I have, even if the work was super interesting and the clients were great, but if we had some cutthroat place where I didn't get support or I didn't have people I could go to, for advice and support at all levels of the firm, from senior to more junior, then I think it would be too hard.

60I do think that working— that the colleagues and the culture are— they really carry you along because if you have a bad day or if you're having doubt, I know there's someone down the hall or on the other end, you know, during the pandemic, on the other end of a Teams call or chat or text, who will, who will pump me up, and vice versa, right? So one is the people just the fundamental part of— I think about keeping certainly myself but other people or people within the firm and the practice. And then, and then there's the nature of the work. It's so— I mean, you have the same practice, it's so much fun what we do every day.

61There's a new problem, there's a different kind of business. I'm like, I joke about the case you will find under my bio, which may not have been the most fascinating legal case in the world, Mega Blow Molding. And I remember going to that business and they make like shampoo bottles, like they mold bottles and they showed me the, the actual equipment. And I occurred to me like, I have no idea. I didn't know before then. How you manufactured shampoo or other bottles or how they changed them. And I learned a lot about the way they actually did their work. So whether it's the pharmaceutical industry, whether it's the manufacturing industry, whether it's the financial services industry, or in the case of our firm, I did a lot of the medical malpractice at the beginning part of my career.

62So, you know, you're doing an orthopedic case or something like Is there any other job on earth where you can learn that much about different people and different business? I can't think of any other job on earth. So, and then of course there's the interesting legal problems. I actually really love the facts as much or more than the law. Don't tell anyone that I like the facts more than the law. I love the law, but I actually really think a big part of, a huge part, and I think the majority of the part of solving difficult legal problems is understanding the people and the facts, and then, and then we'll find the law that will fix the problem.

63But first you need to understand the facts.

66So my day starts with my Starbucks, my We did it in our holiday card this past year, a New Year's resolution thing. And the resolution that was posted for me was never to have my latte alone. And then I realized, of course, I always have my first latte alone because I leave my house, I stop at my local Starbucks, I say hello to my local baristas who always greet me because it's a wonderful place. I get my latte and I drive into the office. So I do have one latte alone every day, but the rest of the day, I may have multiple. My day usually involves multiple lattes, which is now a far walk down to the TD Center from our office.

67But that is the way my day starts. Thanks for calling me out. I have not been working out in the morning, but I should. My defense to that is my daughter is on the rowing team and I have to wake up at 5 o'clock in the morning. To get her to rowing. She's graduating this year, so this is my last year as a rowing parent. And I'm— I mean, I was about to say I'm excited. I love that she does it. And so that's my little sacrifice for her is getting up and— and I don't know, it's a thing getting up at 5 o'clock in the morning. Anyway, so I have been coming into the office most, most days since the end of the year.

68I find it gets me going and I'm the managing partner of the firm.

70I have an amazing office. And so, no, I didn't. And the— they— I'm the one giving out the offices, or I was. I was fulfilling that role before I became the managing partner. We actually just renovated some new space at the firm, and that floor has all of the offices are the same size, and it's a beautiful space. And I was seriously thinking about moving down, and the only reason I didn't— and so my office would have been the same size as everyone else on that floor, but I didn't because the walls are glass as opposed to my office, which has like a door and nobody can see in it. And I figure people ought to be able to come into the managing partner's office and cry or scream or yell or do whatever they want and do it privately.

71So I'm in my beautiful office with a view of the skating rink at City Hall, which I find in the morning quite— I like to— there's always one or two people who just skate around like at Whether I'm here at like 7 in the morning or 9 in the morning, there is a person just having a wonderful time skating on the rink. They're getting it ready right now for, I guess the Leafs are doing a thing there on the weekend. So anyway, so far we've got to, I get to work in the morning.

73Yeah, no, no, I finish it off here. I mean, I just started as managing partner in January, so a big thing, my day, my days these sort of 4 or 5 weeks have been different really from what they were before because I'm spending a lot of time walking around the office, having lunch, coffee, drinks, breakfast with all of my partners, with members of the legal community. So I'm just, yeah, I'm spending a lot of time doing that in the first you know, 90 days of this role. It's been great. But also then having conference calls with clients and reviewing factums and all of the things that one does as a litigator.

75Oh Tom Curry has been giving me advice since the day he walked in the door in 2002. And he will continue to give me advice for the rest of our natural lives, I'm sure. And I mean that in the nicest possible way. So Tom and I have worked together. I actually preceded him on the management committee. And we, I mean, every, all of my time on the management committee has been a great team. But of course, Tom and I worked very well and very closely with each other. Tom's catchphrase is— well, he has many, but one of them in respect to the firm is positive, positive, positive, or work hard and have fun.

76And it really is the positive, positive, positive that stays with me. He has delivered a feeling at this firm of endless positivity. I mean, his Charisma is unmatched, but, and, and we all have to lead in our own ways, but that positive attitude he has is definitely a thing to emulate.

78Yeah, so urgent proceeding days would be my favorite. Well, after a trial day, probably trial day comes as the number one favorite, trial or appeal day. And then I also, I mean, one of my favorite things to do is injunctions or any sort of real-time litigation. And so, oh, you know, if someone calls today and says, we need to bring an injunction for this reason, and it's super urgent and we need to do it on Monday. So, okay, I mean, whoo, it's an adrenaline, you get that adrenaline, you know, someone calls right after this, then I, you know, I figure out whether that's, you know, you run your conflicts and you figure out whether you can actually ask all the questions to make sure you can help them because you're not gonna spend that client's money if you're not going to get anywhere on Monday bringing in the injunction.

79If I got that call today, let's assume it's a commercial thing. I get that note out to the commercial list. I have to be able to describe it properly too. I'm not going to waste that court's time with an urgent attendance on Monday unless it truly is an urgent attendance. And that is one of the benefits and burdens of having any reputation is I'll probably get the date, but it better for sure be a truly urgent attendance or I lose my— any reputation I have goes down considerably. That court's not going to be very happy with me if I've asked, they've set aside some time, moved something for me, and it's not urgent. I have to figure all of that out, you know, in an hour because, you know, it's going to be Friday afternoon.

80And then assuming I haven't done it already, I send a note out either if there's an associate I know who has time, or it's just a note out to all of the associates. Hi everyone, cool new case. Even if it's not cool but it's a cool case because it's an injunction on Monday. Cool new case who has time? And then we would get together in my office and, and try to figure out what we need to do to solve the legal problem. How are we going to get this done for Monday? What's everyone's time? Who's going to be responsible? Like, do we need an expert? How are we going to get that?

81When are we going to meet with the clients? And then it's, you know, meeting with the clients, drafting the affidavits. Who's going to do the legal research? Do we have precedents already? Let's get our research team on it. And As much as I get an adrenaline rush out of the courtroom, something like an injunction like that, I have an adrenaline rush from the time the phone rings to the time we're arguing it. And then, and I actually, I know it's comical, but for me, that's kind of a really fun weekend. I mean, I wouldn't want to do it every weekend, but I do love that stuff.

83It really, it really does depend on, on the case, which I know is an annoying question. There could just be, if it was a manageable one in terms of number of witnesses and everything, it would probably be one associate. We'd get a student. Maybe we get someone from the research team to support. How many documents do we have? Do I need a clerk? So it could be that. But some of the injunctions I've done that are more high profile than others, the Cleveland team, the Freedom Convoy one, there's a lot of people on them. And in part because they're fun and high profile and everyone wants to, everyone wants to help. But that, those cases, you might see a dozen people on it.

84We gotta do something in 36 hours and let's just, yeah, we on the, on the Freedom Convoy case, we had a, a facts team and a law team. And then we also, and then we had someone dealing with the expert and, you know, we put it all together. And even then there was, you don't get it done in the 9-to-5 business day.

86I would say it's a little bit of all of the above. I'm not doing the first draft. I'm definitely still doing drafting. You know, that executive summary, that's really important. I also have experience doing these cases, so I want to make sure, you know, read it and understand it and make sure. I think that, you know, if we make that pitch, the judge is going to catch it. And so I will reframe things. I think that's true of if I'm working with Peter Griffin on something today and, you know, an associate has drafted it and I read it, it goes to Peter, he's going to redraft. Like, there's— we are all very committed to the legal writing and have our own ways we like to deliver the message.

87So definitely involved in the drafting. Just thinking about that Freedom Convoy case I was probably not in the weeds on anything but involved in everything. So I don't know if mastermind is the right word, but I worked—

89Yeah, I worked day and night just like the team. Like, I wasn't— it wasn't just over to you, but it's like, where are we on this? And have you thought about that? And I don't know, maybe it was Maybe it was a very frustrating oversight, but it was really oversight over, over everything, as well as just sort of bringing my experience to bear on, on doing— I mean, there was no case exactly like that, but doing injunctions and writ injunctions in particular before.

91I mean, I still When did I stop doing legal research? I would say you don't ever totally stop doing legal research, right? Someone's drafted a factum, I read it and I say, like, let me note up that case, or I'll read this, or does that work? And, you know, I wouldn't rely on Canlii to start my legal research. I mean, but I definitely open Canlii a lot. To just sometimes just to search around to see, you know, how we all hate that case that has the proposition that you like, but it's the wrong result. I'm like, oh, come on, can't we find one that has this proposition but comes to the result I'm looking for?

92I will annoyingly do that sometimes. But when did I stop actually writing the legal memos? I don't know. It's funny. Like, you think I'll never stop doing this, and then one day you stop. Stop doing it. It's been a while. I'll admit it's been a while.

94Oh, I don't know. So I spend more time than I like on Outlook in my email. I wish to spend less time. I think I feel like I'd have a lot of people on side of, is there a way I can spend less time just going through my email? Teams, a lot of time on Teams. So we have a very, not just the calls, but we have a very active Teams chats at the firm. We do a lot of, I would say, both social and problem solving in Teams. Like if I were on a conference call with you right now and you were a client, I might be chatting with my colleague on the file, just to say, like, can we find that document?

95Or did I get that right? That's one of my favorite questions. Okay, I just said, was I right about that? I, you know, that's another question you might ask. There was a time where I was the person who knew everything about the file, and now other people are playing that role, and I'm not comfortable with it. So I have amazing people I work with who, you know, know every last thing, but I still want to check with them that I'm right when I say something to a client, obviously. So Teams and Outlook, and of course we have our docketing system, but I don't spend, you know, you use it, I don't spend time on it.

96I use I like my iPad. I prefer to read on the iPad than on the screen. So I have various readers which I use. Which one is the one that's open right now? GoodReader, not GoodReader. Anyways, various PDF readers. PDF, yeah. That I use for reading. It's much— I don't know, something about it being flat instead of up here actually makes it easier to read. Yeah, those are— I would say those are the main ones.

98word. Yes. Yeah, I

100Yes. Yeah, you know, you're right. Word. That obviously, obviously that as well. I am definitely I'm now more reviewing the work of others than, than drafting it from scratch.

102Let's gossip about opposing counsel. I think that actually the best thing that can happen on a case is that you get amazing opposing counsel, right? Like the better the opposing counsel you have in terms of their talents, usually if they're very talented, they're also quite kind and wonderful to deal with. And you know that it's a fair fight, right? That you know that this is going to be good. I might not win, but that— and I'll be able to tell my clients exactly that, that we're actually blessed with an excellent lawyer on the other side, which they don't always get. But that's, that's what I'm always looking for. And of course I have a million friends in the profession and I hope they feel the the same way.

103So I would say it's hard to estimate the percentage, but like we'll say 95% of the time opposing counsel agree. That 5% of the time that they're not, I find that really frustrating. I don't like that. I hate dealing with bullshit. I don't have time for it. I don't like refusals motions. Even. I don't I don't like people trying to stake the claim for something. I, I don't have any time for it. So one and it's easier as you get older to just be like, I'm not doing that. So one I don't know if I should tell you my so there's, there's two things that I have done.

104One has been for a number of years, and one's more new. So there's a book called How to Talk So Your Kids Will Listen, and I recommend that as reading for any— if you don't have kids, doesn't matter read it, and it helps you learn how to talk to lawyers who think a lot of themselves. Lawyers who think a lot of themselves are or all lawyers are very much like children, and if you talk to lawyers if you need to learn how to deal with them, read How to Talk So Kids Will Listen, and it will help you, I promise. And then secondly I've learned how to just treat every lawyer like they're my best friend.

105And so this is a thing I maybe shouldn't give away because of course so many of the lawyers— like, remember, 95% of the lawyers I deal with, I actually love working with, and so I'm not faking it. 5% of the lawyers I'm dealing with I'm kind of faking it. But if you're not screaming at them and not fighting with them and, and you just say, oh like talk about their day, and it doesn't matter how mean you are— they are to you, you just pretend like they're not being mean and you're nice— they actually stop. It's the weirdest thing. I just I, I just try not to let people be mean to me.

106I actually think it's much easier— that wouldn't have worked 20 years ago. I'm not recommending that. Well, I mean, I would recommend, of course, to young lawyers to be civil and to try to let the abuse, which I'm sure people still get not get to them. It's not them throwing on the charm and trying to make— I think it's my seniority and reputation helps in that regard. But it sure does make my life easier. I sometimes roll my eyes to the back of my head after one of those calls where I've been really nice to a person who's been really mean to me, but at the end of the day seems to help.

108The trial prep. So probably everybody has these, but like the— we have a, you know, trial checklist at the firm. I'm like, okay, so like now we're however far away we are. So like all of those things that you might forget to do. Have we answered all of our undertakings? Have they answered all their undertakings? Is that a refusal I want to maintain, or is that really going to hurt me in the long run? What is my actual theory of the case? Has it changed? No, but you laugh, but it's true. You drafted the pleadings however many years ago. You had the discoveries, all the answers, the undertakings. Maybe I have a new theory of the case.

109Yeah, maybe. Did I plead in bad faith? Like, maybe now that we've had the discoveries, I can actually make a good faith argument that I hadn't thought of. So do I need to amend the pleadings? And it, it actually takes a lot to do all of that work because who has the time to just stop doing all of the, like, 4,000 emails you have to do? You— the trial's not tomorrow, it's 6 weeks or 8 weeks from now or whatever it is. And I have to just say, like, okay, we have to stop and just go back to first principles. What is this case about? What is the evidence in support of the issues?

110What have— has the law changed? And so you need to stop, figure out what the time is where you stop, and you just like, look at your whole case as a whole and make sure it's in order to do all of the— like, that's before I've prepared a single witness or done anything. Just, is my, is my case the case that I had when it was issued or when I first defended it? Is there anything else I need to do? And then, you know, then really it's— people say this all the time, but it's true. What am I going to say in my closing? It is really where you should start because then that helps you know what evidence you need to call to make out the claim or the defense.

111So do I have all the witnesses I need to do that? So if you can really do an outline— not going to write the closing, obviously. I make myself sound a lot more prepared than I feel sometimes. But if you can do an outline of what what that closing will look like. And I like to think about doing it out loud. Your Honor, you've heard evidence from so-and-so and they've said this and that makes out this cause of action. And if you think, okay, I'm not going to be able to do that, my client's not going to say that, where am I going to get that evidence from? What are the documents that support those things?

112And then from there you can go back and create the joint document brief and prepare the witnesses and you know, prepare before you prepare the witnesses, figure out what, what documents you need to go through with all of the of the witness. I mean again, a cliché, but preparation is everything in terms of trials.

114I guess it depends on what you mean by duplicating work. If I'm like, if as I've said, before trial you look at the pleadings again, there's a lot of things have happened since you first drafted that pleading. You've produced documents, you've received documents, you've done discoveries, you've answered undertakings. You know a lot more, both good and bad, about the facts of that case than you did when you drafted that pleading, the claim or the defense. So I don't think it's duplicative that I'm looking at the pleadings again. It's also not duplicative particularly that I'm looking You know, I've got memos on our document management system about the causes of action, but maybe they were written 3 years ago.

115And so has the law changed? Are there new cases which support our, you know, just on the facts which support us? I mean, you can't just interview the witness 2 weeks after you're retained and not do that probably a dozen times. Between the time you get the case in the door and before you go to trial. So yes, we do the same thing more than once, taking that as an example, interviewing key witnesses. But I'm— I, I would argue it's not duplicative, it's just part of the iterative process of advancing a case.

117Ultimately,

119I mean, I think there, I mean, it is notice to the other side about what your case is about. So yes, we absolutely should do pleadings. Otherwise, how would we know the parameters about what the dispute is about? And at the end of the day, you know, the rule is shall amend. And so The pleadings rules don't prevent people from advancing the merits of the case because really, unless there's a material limitation period issue or a new party or something like that, you know, unless there's some real prejudice, which you don't see very often, a party has a right to amend their claim really right through the course of trial. Now, that's frustrating when it happens at trial because it defeats the notice prejudicious purpose, and there may be a higher likelihood of prejudice at that time.

120But for sure, pleadings are important in terms of framing the issue. And I'm not a judge, but I would have thought it's also important for the judge to understand what it is that the parties are having a dispute before them.

122I would say in my practice I actually don't. I'm blessed of having a practice usually, again, 95% of the time where the lawyers are excellent. So I would say no, I don't really see a lot of badly drafted.

124The role of evidentiary objections in commercial trials. So people say that civil litigators and probably commercial litigators don't know anything about evidence. I would say that the judge— that the judges definitely do try to keep us honest and following the rules of evidence. And You know, some of the evidence goes in and some of it doesn't, and the Court of Appeal will call us on it or call the trial judge on it if it's material. We can be— one thing we do in commercial litigation, or I mean, again, it depends on the on the lawyers and the judge. Probably not entirely consistent with the rules of evidence. Things like marking an expert report as an exhibit, which I actually don't agree with, but those are things that happen sometimes just in the normal course.

125Again, in my practice in commercial litigation, a lot of things are agreed upon. Sometimes that can be dangerous, and the Court of Appeal has addressed this, right? Like, what does it mean that an email is admitted for the truth of its contents. That's a bad idea actually, because if the email says like records an impression that someone had, it doesn't— you know, are we really recording the email? Is for the— is it being admitted for the truth of the contents or just that that email was sent and received? And so I do think civil litigators need to think more about how evidence actually works. On the other hand, I really do appreciate that for the most part we resolve things like business records.

126Like, people don't fight about— most of the time— about business records because they're going to get admitted because, you know, the steps you need to go through to prove that the financial statements are the financial statements of the company. If there's no dispute about it, why, why are you fighting? Why are you fighting about it? So there's, I think, a balance that can be had in civil litigation. But the rules of evidence, I do believe, are important.

128Absolutely. Thank you so much for inviting me.