Sana Halwani

2Hi Pulat.

4I'm, I'm doing great, thank you so much for having me.

6Oh, I feel very privileged then.

8We do like to have arguments about even the most ridiculous things, like which apple is best, and apparently we like to do it in public on Twitter. So, you know, the rest of you can have a little fun at our expense as well.

10Exactly, it's perfect.

12Oh yes, that's definitely at the beginning. I was born in Beirut. In Lebanon. I was born at AUB Hospital, the American University of Beirut Hospital, where my mother actually had graduated from. But so that's where my family hails from. Both my mom and dad are Lebanese.

14We don't go back very much. I've only been back a few times. There are sort of, I feel like two different types of Lebanese folks, if I can be really categorical in the diaspora. There's a a set of families that came to Canada and then went back every summer, and the kids and the mom at least, and sometimes the dad too, would, would go back for the entire summer and spend their time in their, you know, with their family, which sounds lovely but wasn't the way that I grew up. My family loves where they came from but also really loved Canada and loves Canada and the opportunities that Canada gave and felt like I feel like my parents just wanted to make sure we were making a life here and weren't just looking backwards.

15So I did not spend a lot of time in Lebanon when I was a kid. We went back a couple of times while I was still under my parents' roof. And I've wanted to go and take my husband and my children, but it just hasn't happened yet. But that's on my wishlist as well.

17I don't. But I understand everything my parents say and when the family gets together. So I have a harder time with other, like if somebody's not from Lebanon, if they're from Saudi Arabia or they're from Iran or something and they're speaking Arabic, I will have a harder time understanding because I really mostly understand the Lebanese sort of expressions and rhythm. But my parents, when I was a kid, used to switch to Arabic when they didn't want us to understand what they were saying, so it was a significant motivator in learning to understand the language. And if you know any Lebanese folks, you know that they don't just speak Arabic, they speak a mix of English, French, and Arabic.

18So you throw in a French word mostly, it may be the occasional English word, so you can sort of decipher what's happening or what's being said. So I feel very comfortable understanding the vast majority of what somebody from Lebanon would say to me in Arabic, but then that link is missing in my brain and I can't, you know, form the response in the same language, unfortunately.

20Yes. So let me give you a bit. It's always an interesting one for folks. There's a lot of us in the IP world, but maybe not that many of us otherwise. So, so first, my parents were very supportive of whatever I wanted to do. They were definitely not the type to impose their views on what was a good path forward and were very happy for all the steps that I took through my academic and professional career. They really are cheerleaders of their kids, myself and my sister. However, science was certainly more in line with what was sort of expected or anticipated, you know, in my family, because my family is chock-full of doctors doctors and engineers.

21My mother went back to McGill and got her PhD in insect physiology. And so there's a lot, you know, my dad is an air transport engineer, although he's an entrepreneur. So there's a lot of understanding of the sciences and medicine and engineering. And I certainly had an aptitude and a love for it as a child and did, as you noted, Pulat, go into a biochemistry degree at Queen's in my undergrad. And my intention was at the time, what I was inspired by, not my intention, was the life and work of Louis Pasteur. I, as a kid, was a voracious reader, and I read a biography of Louis Pasteur when I was, I don't know, 11 or 12 or something, and I read it multiple times.

22It was just fascinating to me how he had figured out how microorganisms work and where disease comes from, and so I had in my mind that kind of a path, and I had to choose a science, and I went into biochemistry because I liked both biology and chemistry. Really, frankly, didn't really know what I was getting myself into. Knew I didn't really love physics, so avoided that. And so went into an undergrad thinking, okay, I probably was going to want to do some research, not a medical intention. Maybe early on I had in the back of my mind maybe medicine, but I decided that wasn't going to be for me pretty early on. And then ended up at Queen's in a biochem degree.

23And then realized that I didn't want to spend my life in a lab, and I think that realization comes to a lot of kids and folks who end up in the sciences. A lot of us were pushed. I wasn't pushed, but a lot of kids get told, you know, keep your options open, go into the sciences. I actually get really mad at that kind of advice. I really think you should do what you love, and I loved it and I went into it, but then the reality of lab work— and I worked in some amazing labs— but the reality of lab work for the rest of my life was not a reality I was willing to agree to.

24And so decided that I wanted to go into bioethics. So that's— maybe I'll pause there and let you get a word in edgewise, Pulat. But that sort of was my path towards the law.

27Extra— extroverted ambitions, absolutely. I definitely was— I was a debater in high school. I didn't really take it into university so much, but I like those things. I liked public speaking. I liked debating. I didn't have any real motivation for— I think you said power and influence. What I actually thought I was going to do, which obviously is not how it turned out, is I wanted to transition into bioethics. I looked at the people at the time who were doing bioethics, and they were either— they had done a philosophy PhD, which I did not want to do, or they had gone to medical school, because at that time bioethics was quite closely tied to medical ethics.

28It didn't really go beyond that so much, and I didn't want to go to medical school. Or they were lawyers, and I said, oh, lawyers, I could, I could get a law degree. Maybe they weren't lawyers, but they had a law degree. So I decided to go into a bioethics degree as kind of a transition point, as you said. And it really was to sort of decide, okay, do I really want to go to law school? Do I want to spend 3 years doing that? And I thought that that 1 year of an arts degree would let me know whether this was a path that I should take. And so I actually, I did the bioethics degree in the UK, in Sheffield, at the University of Sheffield.

29It was a, it was a very bespoke kind of program at the time. There was really nobody else doing this wider bioethics review, not just medical ethics. It was a very small program, but I had a wonderful time. I had wonderful colleagues and student colleagues and teachers. And then I thought, okay, this is what I'm going to do, and I'm going to go to law school to be an academic in the bioethics area. So my intent— that's not an area of influence and power, at least not from what I understand. Maybe on, on on the world of ideas, but, but not in the way that you had described. And so that was my original intent, was to go to law school, get my law degree, figure out if I needed to also get an LLM or otherwise, and become a professor in the area of bioethics.

30It's not what happened.

32So that's a, that's a great question. I'm not sure I really knew what academics did when I had set in my mind that I wanted to be an academic. By the way, Justice Sossin taught me civ pro, civil procedure, in first year at law school, actually. So he's a wonderful, wonderful man. I was so excited to see him elevated. But in any case, I loved the area of bioethics. I thought it was fascinating. I thought it was incredibly important in terms of figuring out what we as a society wanted science to do for us or not do for us when it comes to artificial reproduction, when it comes to xenotransplantation, use of animal organs in when it comes to straight-up medical ethics, right to die, genetic modification, genetic technology.

33I mean, those are just essential questions about the human condition and what we as a society will agree is a good idea or not. Even if we can do it, do we— should we do it, right? And so that intersection of science not in a vacuum, science and society, was what absolutely fascinated me as a subject matter expert. Matter. And frankly, what can you do with that as a job and really engage with those issues is to become an academic, to write and research and teach in the area. And perhaps maybe this is where the influence comes in, influence public policy in the area as a knowledgeable person, as an expert down the line.

34So I think that's what I had in mind. I don't think frankly that I had thought through what that would mean on a day-to-day basis, on a lifestyle kind of basis. I just thought, this is a topic I love, and it doesn't leave behind completely the science education and experience that I've had, which I didn't want to do. I didn't want to feel like I had, you know, wasted my time. And I then said, okay, well, if I marry it with a law degree, I think I can do something with this. So I'm going to go to law school.

36Well, they didn't convince Justice Abella, Pulat. They convinced Justice Iacobucci.

38Yes, so I don't know how much people know. I know people know quite a bit about how clerks are hired, but what happens in a transition period is because clerks are hired 2 years before they're going to work. When a justice retires and announces their retirement, often there are 1 or 2 years of clerks already hired, and those clerks get effectively inherited by the next judge. And so I was a clerk for Justice Abella in only her second year on the court. And I had actually been hired by Justice Iacobucci, an absolutely wonderful man. I still can picture that interview. He was just so lovely and, and, and didn't make you feel stressed out in the interview, which was so nice.

39Thrilled to work for, for him, and I was thrilled to work for Justice Abella as well. Really, you know, didn't know so much what to expect when she arrived, but very quickly figured out that it was going to be a very special year to be able to work in her chambers for a year.

41Yes, so she's, she's being celebrated, rightfully so, in all kinds of different ways. And I was just in Ottawa at one of those celebrations and a two-day conference, and I was asked to speak about actually her influence on women in the profession. But in terms of what it was like personally to work for her, it was, it was just wonderful from beginning to end. She is exactly as she seems when you hear her speak. She is a warm, wonderful, caring, interesting, vibrant person. And she is like that whether she's speaking to a group of hundreds or thousands of people or whether you are sitting with her on her couch in Chambers drinking a cappuccino and discussing a case.

42She's sharp in terms of her intellect is incredible. She's such a voracious reader that she can draw on all of those influences in her work. She's incredibly hardworking. We joked during the conference about her, you know, the 40th draft, the 41st draft, the 42nd draft. She is meticulous in her writing and she chooses every word intentionally and carefully and doesn't have any extra words that she doesn't need. So working for her was an amazing combination of just this incredibly warm person, but also incredibly hardworking and incredibly intelligent. And it was wonderful. She also, I mean, She married my husband and I, we were married in her chambers. She keeps in touch with all of her clerks.

43She loves to hear about if you have kids, you know, we call them her grand clerks. She wants to hear about you, your family, your parents, your kids when she sees you, or if you, you know, write her a note, she's never too busy to write back. So she's just this, you know, one of a kind, really.

45That's right. Jeremy and I have gotten to know each other a little bit more recently because of all these celebrations for her. It's been pulling her clerks together from different classes, which has been such a thrill for me because I— well, I think for all of us, you tend to know your cohort, right, your year of clerks really well. I had wonderful year clerks, co-clerks, but you don't get to know necessarily the other years as well, even when they clerked for the same judge. So this opportunity has been just wonderful to get to know him, to get to know a number of the other clerks from different years. Many are in Toronto, as you can imagine, so that's been a really nice side effect of the retirement.

47Who, like, who were— who clerked for her?

49well,

51So there are, yes, there are lawyers. Ryan Dial is one. Ryan is a litigator out in DC. He's like a phenom. He's been at the Supreme Court, I think, even a few years after we were clerks for Justice Abella. He was at the Supreme Court for I don't know how many times. So he's done some really interesting litigation work, and he had clerked previously, I think, for the BC Court of Appeal. Another one of my co-clerks, Meaghan, went in to work for the Privacy Commissioner, and as far as I know— I haven't kept in touch with her as much— but as far as I know, she's been working again in policy, privacy policy, and government for a long time.

52And then, you know, in the wider clerk cohort, we have a lot of litigators, some very big names, and then some profs and Some people who've gone in-house or who become, well, academics, professors, as I said. So there is a nice kind of wide variety of clerks from— of professions from that clerk cohort.

57He's doing very well. I mean, we had the pleasure of having both Alan and Ronald be at the firm still active until only very, very recently. Well past where a lot of people would retire. And it was just for me, because I only joined the firm in 2017, it was so wonderful to have the experience of working with them and of having their mentorship even for a short time, because they really are just the greatest example of what the profession is supposed to be, particularly with respect to mentorship and helping the next generation move up. So they're just, you know, they're who they are. Everybody knows their names, even though, as you said, they're not the easiest easiest names to pronounce, but you can go on our website and hit the button for the firm name as well and hear how to properly pronounce it.

58And you certainly wouldn't be the first to mispronounce it, but it's nice when people get it right.

60Oh, that's an interesting question. I haven't been asked that one before. I don't, I don't think so. I think I'm a pretty good litigator. I hope to be anyway. I certainly didn't have the path of a traditional litigator or the quintessential litigator, whoever that is. And maybe I can pause here and push back against your premise, Pulat, that there is such a thing as a quintessential litigator because maybe there was like 100 years ago, maybe, but I don't think there is anymore because if there was or is a quintessential litigator, frankly, they're probably a straight white guy. And that's certainly not what we see now. The top litigators in the country include a wide diversity of folks who come from different backgrounds, different educational backgrounds.

61You know, myself with my science background, that's certainly not quintessential. If there was a degree that was quintessential, I think it would be poli sci, you know. And so I think that litigators have some common threads. You really, you know, you can't hate to public speak, for example. If you hate to public speak, you should probably come up with a different career path for for yourself. But even that, you don't have to be a brilliant public speaker to start with because that can absolutely be something that you're taught. I think there, as I said, so you have to like it. You have to want to analyze and be skeptical because you need to ask a lot of questions all the time.

62Although I would say that about a lot of lawyers, not just litigators, you know, questioning, querying, is this the right answer? Trying to do better. Those are all, I think, marks of folks who have been successful. So I'm sort of avoiding, sidestepping your question here, but I think I have some of those traits. But if there is a quintessential litigator, I'm not sure that I would fit the mold.

64I hope not.

66Wow.

68I don't agree. And I think all of my colleagues, most of whom would characterize themselves as commercial litigators, would vehemently disagree with this poll. I think that the reason you got that result is because there's something— when, you know, when people think of a patent litigator, for the most part, they think about people who have had a scientific or a technical background. And there's something, I suppose, special about being a bit of a polymath, about being able to do both scientific type of thinking, whether it be, you know, in the biological sciences, chemical, mathematical thinking, whatever it is, and also be able to translate that into a case, into the law, in a way that can be understood by a judge.

69We don't have juries, so by a judge who may not have any of that technical background. So I think the reaction you got from your Twitter poll is really this reflection that patent lawyers, many, if not most of them, do have some kind of technical background. And there's a perception that somehow that makes us, that sets us apart from perhaps some of our other colleagues. I have many colleagues who also have a technical or scientific background and who are not patent lawyers. So they also share that trait with me. But I feel like that's why you got the answers that you did. I did find the ranking quite surprising. The other ranking of the class action and the personal injury and the commercial litigation.

70That's an interesting one to me, probably more than the patent side.

72Maybe. Self-selecting.

74I was going to say, I think I closed my door. This is my dog, Matilda. She's an Australian Shepherd. She is beautiful and she's wonderful to have around. I so maybe a fun, a fun intrusion then.

77I think you've hit the nail on the head. I think the biggest difference is that although there are many areas of the law where you would require an expert when it comes to patent cases, for the vast majority of them, the expert will be the core of the case. And you will win or lose on your expert evidence and on your cross-examinations of the other side's expert evidence. And the fact witnesses tend to be a little bit secondary. Not always. I mean, again, in a patent case, you're talking about two big areas. You're talking about whether the accused product or service infringes the patent. There's a lot more, I would say, facts that are important important there.

78And then you're also talking about whether the patent is valid or invalid for a whole host of reasons. But even on the infringement side where the facts play more in, it's the facts as filtered through the expert, whether through testing or observation or otherwise. So the experts end up being the absolutely most important part of these cases. And I think that does distinguish the cases and the trials from what you see otherwise. The other way that it can— you can sometimes distinguish patent cases is they tend to be very big, like in the sense of big teams, a lot of money thrown at them. They tend to be for very important parts of the party's business because you wouldn't be, you know, making it all the way to trial if they were only about small areas.

79They tend to be about technology that is core to the parties' businesses that really is going to make a big impact depending on what the outcome of the case is going to be. And so, you know, patent litigators, myself included, have the great benefit of being able to work with, with like fairly large teams, which can be— it's just fun, right? You get to work with your colleagues. You get to feel like you're pulling together. You're not alone. You've got people that you can rely on. And you get to be paid to learn about an area of science or technology and from the world-leading experts. So your client is paying the expert and paying you, and you get to sort of learn this new area.

80I mean, it's a real luxury and privilege of being a patent litigator that we are in a position to do that kind of work.

82I don't know if they're complete outliers, but having and practicing with folks at my firm who have both done patent cases and medical malpractice cases, who would be better placed to answer this question, but my impression is that the answer they would give is that it is even more so important, the expert evidence in a patent case compared to a medical malpractice case, but maybe not so far as to call it an outlier. I think they might be in a similar area, but still more so on the patent side. And so I do think that there is still more importance. Again, I've never done a medical malpractice case, but if you think about the plaintiff, their testimony is going to be really important and really critical, even though there's obviously a very, very key role being played by the experts in terms of interpreting what happened, what didn't go right, what went right, you know, from that perspective.

86I don't think they're out. I think that there is a recognition in all courts, including the federal court for patent actions and, you know, Commercial List and other similar courts doing highly complex— trying highly complex cases that The vast majority of factual disputes can be resolved prior to the trial and can be presented at trial because you still need to prove your facts in a way that is streamlined. And so that includes joint book of documents where the authenticity is not in dispute, so that such documents, you know, you can come to an agreement that documents can be entered as evidence without the need for a witness if there's an agreement on that. That means, you know, we all have robust discovery and there are clear— it's going to be clear pretty much for most things what— which way the facts are going to come out at trial based on discovery testimony.

87So requests to admit can be used so that you get clean admissions on factual issues. Read statements of fact apart from the joint book of documents. And then at our court, what we're seeing as well is for some types of cases or some types of witnesses on the fact side that their evidence in chief will go in by way of affidavit, so that there's still an opportunity to cross-examine, but that we can streamline the trial time in a way that allows for very complex cases, for example, in the federal court, to be determined in only 10 days of trial. And so I think that when there is a true factual dispute, which I think happens more in commercial litigation cases, honestly, than it does in patent cases, because in patent cases, as I said, you've had tons of discovery, then your experts have had to take those facts and provide you opinions with them.

88And so there's a feeling that the facts are kind of already there. But in either case, what I think we're seeing is a desire by the court and counsel and the parties to some extent to streamline the amount of trial time that's needed and to allow for different ways for the court court to get the facts that the court is going to need to actually come to a conclusion without having to have, you know, weeks and weeks of fact witnesses. Not all cases, but a big chunk of them. You can streamline that fact side of things in a way that allows us to take, you know, reduce the burden on the court system.

91I mean, a version of that can happen in patent cases Pulat, right? Because you might have you might have an 8-year lawyer arguing something on one side and a 30-year lawyer arguing on the other side in, in any case, not just patent cases. So I, I think that there is a concern I think that if we lived in a perfect world, whether you were known or not by the court— maybe I'll put it that way as opposed to reputation. I'll come back to reputation in a second. But whether you're known or not by the court would have zero bearing on the likelihood of success you're going to have in front of a particular judge or a bench of judges.

92Because it shouldn't— we wear robes for a reason. It's not about us. It's about the law. That's why I actually like robes. It's about the law and the argument and the facts. I mean, it's about all of those things, and that's what it's supposed to be about, and it's not supposed to be about the lawyer. Now, we wouldn't be where we are as a profession if it didn't matter who your lawyer was, right? So I'm not suggesting that we should have, like, robots give oral argument or something, right, to, like, level the playing field or anything like that. What I am saying is that there's probably an over-reliance, because we're all human and so are the judges, on reputation or knowledge of a particular counsel when they're before you.

93And the way it manifests in my experience is not that you're going to win or lose, right? Like, I would hope not. Okay, maybe that would be a very bad outcome, right? But in how much a court will give the benefit of the doubt to a counsel, for example. So that's where reputation, as opposed to just knowledge. So if you have a reputation with the judiciary where they've seen you enough times that they know— it's not about having seen you that many times. It's that they know that you give honest answers, that you don't try to pull the wool over their eyes, that if there is something that is problematic in the case law, that instead of pretending it doesn't exist, you actually address it head-on.

94If you have that kind of reputation, which I hope is what's reflected in the quote that you read at the beginning of your question, with the court, then that does play well for you, and that means that the court, when you speak, when you give your argument, can be confident that you are being fair and honest with them. And so they can take your argument at face value. But your argument still is what will win the day or not, right? So we all know that fantastic lawyers lose because the facts and the law are not in their favor and not because they did a bad job, right? Or because the court didn't think that they were a good lawyer or that they had integrity.

95And so, you know, I think it is important. It becomes easier as you get more senior. It's harder when you're a more junior lawyer up against more senior lawyers. I'm kind of in the middle now, but for most of my career, the person on the other side has been more senior than me. I think that's about to switch. And so it can be frustrating sometimes as a woman, as a more junior person compared to other members of the bar, to feel like the court is kind of letting the other side tell them stuff that's not true because they're more senior. So you see both sides of it. You see that there's a reasonableness to the court giving the benefit of the doubt to lawyers who they trust.

96But you can also see it play badly when perhaps that trust is misplaced.

98I really don't know. And I want to be where I am. I'm very happy where I am. I want to be at Lenczner Slaght in that kind of a way, like a big picture kind of a way. I really like the work that I do and I have no plans on going anywhere right now. But I also know, and we've talked about my path a little bit, that I did not have a straight path. That one of the features of my career is that I've taken the opportunities that have been given to me and that I haven't necessarily had a grand master plan all the time. And it's worked out pretty well so far.

99So I have a wonderful team. I have wonderful colleagues. I have a wonderful firm. I'm building my practice. I'm really just hitting my stride because you know how long it takes, Pulat, right, to kind of get there in this space. And I would like to keep doing that. I very much enjoy also working with my colleagues on things inside the firm, and I'd like to continue to do that. And so all the things, all the things, Pulat, that's what I want to do. I don't have an I don't have a holy grail or a prize at the end that I'm reaching for, right? At least not right now.

101Me too. It was wonderful. Thanks again for inviting me to be a part of this.