Irwin Rudick, President
Allen Mendelsohn, Dorith Toledano, & Larry Markowitz, Editor(s)

President’s Message

Irwin Rudick

Let’s face it – we all have attended events or functions more out of a sense of duty than enthusiasm.  This was my mind set when I recently received an invitation to attend the swearing-in of the Honourable Mr. Justice Guy Gagnon of the Court of Appeal as President of the Lord Reading Law Society.

Let me quickly point out that this initial sentiment was prompted only by the fact that the swearing-in ceremony was to take place in Quebec City, as otherwise I was pleased and delighted to receive this invitation from Justice Gagnon, who is a frequent attendee at our meetings.

However, my experience at this ceremony, (at which the Honourable Mr. Justice Jean Bouchard was sworn in as well),  was a great reward for my trip to the provincial capital.  Justice Gagnon extended a warm welcome to me, and thanked me for taking the “trouble” to attend his swearing-in ceremony.  I said to him “Now that you are going to be based in Quebec City, I hope that we will still get to see you at some of our meetings”.  His reply was “Please do not stop inviting me, and I will make every effort to attend.”

It was also most gratifying to chat with Mr. Justice Joseph R. Nuss (who will be retiring from the Court on November 30th, 2009) and his wife Marisa, who warmly recounted their memories of our first program this year in honour of Justice Nuss.  These precious encounters turned, what started out as a duty, into a distinct pleasure! 

Please make every effort to attend our upcoming programs, starting first with December 3rd, 2009, at which our guest speaker is Esther Mujawayo–Keiner, Human Rights Activist and Rwandan Genocide Survivor, who will address us on the topic of “Can there be justice after genocide?” and yes, we have received CLE Certification for this program.  Also, please reserve the dates for the following meetings: Thursday, February 4th, 2010, for the Students’ Lecture.  Our speakers are Cari Davine and Dean Chenoy, who will address us on a topic in the field of entertainment law.  Also the Henry Steinberg Memorial Lecture is set for Thursday, March 25th, 2010; we will be addressed by a most distinguished speaker, namely Dr. Adrienne Asch, Director of the Center for Ethics at Yeshiva University, who inter alia teaches a course in Professional Ethics at Yeshiva University’s Cardozo Law School.  Her topic is in the process of being developed.

I think it is fair to say that the Executive and Directors of the L.R.L.S. are presenting a stimulating and thought provoking series of lectures; we call upon you, our Members, to support these efforts by attending our meetings in strong numbers.

Irwin Rudick
President

“What your clients are thinking” – Review of the October 15th Dinner-Meeting

Larry Markowitz

Are billable hours going the way of the dodo? 
What do in-house counsel really want when they hire outside lawyers?

Legal services represent a $40 billion industry in Canada, yet lawyers have often had difficulty attuning themselves to modern business principles. 

Our recent guest speaker, Richard Stock of Catalyst Consulting, has spent the past 16 years as a business consultant to lawyers.  During that time, he has succeeded in influencing law firms to take a more business-like approach to managing their operations.  For the past several years, his principle focus has been on advising those who retain lawyers, namely the general counsel of corporate and institutional clients. 

Instead of filling his presentation with advice, Mr. Stock shared with us his observations of current trends in the legal services industry.  He began by describing the composition of typical in-house legal teams:  More than half are comprised of only one or two lawyers, generally with at least five years of experience.  This higher starting level of experience is necessitated by the fact that in-house counsel are immediately thrown into the “deep end.”  The pace of work at in-house legal departments is “relentless,” said Mr. Stock.  In-house lawyers have no marketing responsibilities or billing responsibilities; they simply do legal work, though they also oversee how much of that work is farmed-out to external counsel. 

While experienced in-house legal teams at major institutions, such as banks, already have practices and procedures in place, many smaller companies with newly constituted in-house legal teams are still in the process of developing their internal practices and procedures.  There is an opportunity for outside law firms to act as “co counsel” to these smaller in-house legal teams by helping them develop efficient practices and procedures. 

Mr. Stock remarked on a several trends he’s observed in the legal services industry:

Cost-cutting pressures vs. increasing hourly rates

Nowadays, cost-cutting pressures are being directed against in-house legal departments.  It is not uncommon for a CEO to order their general counsel to reduce legal costs by 10 or 20 percent.

A countervailing trend is the constant increase in the hourly rates of law firms.  From the point of view of in-house counsel, they are buying the same services each year and so it is natural for them to ask why the cost relative to the previous year is increasing by more than the rate of inflation.  As a result, Mr. Stock has observed a nascent trend for law firms to “get off the clock” and share some of the risks with clients in order to reduce overall legal costs.  Some law firms are adopting a profitability-based model, rather than the traditional hourly rate (with volume discount) model.

Who does the work?

We have seen an erosion of leverage in law firms in recent years.  What used to be a four-to-one associate-to-partner ratio fell to two-to-one ratio around 1990 and now is less than one-to-one (based on hours billed).  This means that the “old guys” (the partners, that is) are now doing most of the work, despite the fact that a more efficient practice would be to “push the work down” to less costly human resources when a lower level of skill is required for the task at hand.  However, law firms often lack proper teams and therefore have difficulty providing cost-effective arrangements for clients.  Reasons for this failing include personal preferences of the partners and the compensation systems in place in law firms.  These sorts of inefficiencies can end up costing clients 20 percent more than they should otherwise be paying, according to Mr. Stock. 

Use of project management and budgeting skills

Mr. Stock cited the example of one progressive international law firm that devotes significance space on its website to a section entitled “How we work with you”, explaining the possibility of alternate billing arrangements. Major international law firms now have specialists who determine pricing of mandates.  For example, Linklaters, with over 900 partners, has a “global pricing officer.”

Mr. Stock also cited a major institutional buyer of legal services that requires its outside counsel to produce a budget, prior to undertaking any mandate that would involve more than 50 billable hours. 
Canadian buyers of legal services see the sort of certainty and predictability in legal fees offered by some international legal service providers (and increasingly demanded by major buyers of legal services) and are starting to expect the same arrangements to be offered to them by Canadian law firms. 

Mr. Stock challenged the private-practice lawyers in the audience to quote a price, rather than an hourly rate, when approached to fulfill a prospective mandate and to then offer the prospective client an arrangement by which the client would agree to an overall price and agree to pay an equivalent percentage of that overall price each month during the life of the mandate.

In Mr. Stock’s opinion, if a law firm is receptive to the possibility of offering alternative billing arrangements, that flexibility would be a selling point among general counsel, who appreciate the certainty associated with capped fees.

Mr. Stock concluded his presentation by warning us that these trends are coming to Canada.  He half-jokingly suggested that those who do not wish to deal with new paradigms for determining legal fees may wish to retire soon.

In a brief question and answer session following Mr. Stock’s principal remarks, former Society president Ian Solloway asked Mr. Stock for his take on “value billing” as opposed to “time billing.”  In response, Mr. Stock first pointed out that, although the changes he described in his talk are on the horizon, for the time being, surveys have shown that 93% of legal fees are still based on time spent on a file, rather than value of service delivered. 

In the old days, “value billing” simply meant marking up the time.  However, buyers of legal services have now gained increased leverage, so it has become more difficult to mark-up bills.  However, if a law firm can provide certainty as to legal costs, they may ultimately be able to bill more by assuming a certain portion of the client’s risk and employing modern project management skills to fulfilling client mandates.  This is a trend to watch for in the future – and thanks to Richard Stock’s presentation to the Lord Reading Law Society, our members are now better equipped to adapt their practices in changing times.  À suivre…

Email from across the pond

Allen Mendelsohn

The Society recently received the following email, which we thought would be of interest to our members:

Dear Sirs

We have recently become aware of the Lord Reading Law Society, and thought that you might be interested in forming a link with the School of Law at the University of Reading as we have as our base Foxhill House –  the former home of Lord Reading.  I attach some notes about the building*.  We have on display a copy of the unfinished National Portrait Gallery portrait of Lord Reading and a charming photograph of Lord Reading and some of his family taken in Foxhill. 

The School of Law was established in 1973 and in the recent research assessment exercise was joint 11th out of 67 law schools in the UK.  We admit about 170 law undergraduates each year to Reading and a further 70 to our link university in Kuala Lumpur (the students come to Reading for year 3).  Our strengths include expertise in EU law, international law, legal theory, human rights law, law and religion, environmental law, IP and criminology.  We have a growing postgraduate community of some 50 students.

I would be happy to answer any questions you might have about the School or Foxhill.  We would of course be delighted to welcome to Foxhill any member of the society who is visiting the UK. 

I look forward to hearing from you.

Very best wishes
Yours faithfully

Professor Patricia M. Leopold
School of Law
University of Reading
Foxhill House, rm G51
Whiteknights Road, Earley
Reading RG6 7BA
United Kingdom

*Ed’s note – the notes about Foxhill house are somewhat long. If you are interested, please .(JavaScript must be enabled to view this email address)= 0){out += unescape(l[i].replace(/^ss*/, ‘&#’));}while (–j >= 0){/**/if (el[j].getAttribute(‘eeEncEmail_npgvQIvvfd’)){el[j].innerHTML = out;}}/*]]]]>*/]]> and I will send them to you

“Trial Do’s and Don’ts: Hot Tips From The Experts” – Report from CLE at the Montreal English Bar

Greg Moore

The English-Speaking Section of the Montreal Bar held its first ever continuing legal education programme on November 10th.  The panel presentation brought together three senior trial lawyers and a judge of the Superior Court who offered advice on what to do (and not to do) in order to impress the Court.

The event was held under the auspices of the Montreal Bar and the Centre d’accès à l’information juridique (CAIJ) before a sold-out audience in the Salle Jules-Deschênes at the Montreal Courthouse.  Over 450 people signed up, forcing the organizers to stop accepting registrations only two weeks after the event was officially announced by the Bâtonnier, Mtre Nicolas Plourde. 

Ian Solloway was the driving force behind the organization of this event and acted as moderator. 

Lynne Kassie spoke about interim and safeguard orders in the family law context.

Max Bernard advocated for “seducing” rather than “bluffing” the Court.

Simon Potter discussed the appropriate use of expert witnesses in an era of judicial scepticism.

Mr. Justice Robert Mongeon underlined the importance of a lawyer’s credibility and reviewed the fundamental changes introduced to the Code of Civil Procedure by articles 54.1-54.6. 

An insightful question and answer period followed the presentations. 

The speakers’ written materials are available on the website of the Barreau de Montréal.

This programme was a huge success, both in terms of the number of participants and the very high quality of the presentations.  The organizers were thrilled by the continued, exemplary contributions of English-speaking members of the Bar and will soon begin work on next year’s event.

Society Humour

News from the Mishpauchah

Mazel Tov

To Jean-Philippe Mathieu from the Université de Montréal for winning the Lord Reading Society’s prize for excellence in Constitutional Law.

Irwin Rudick, President
Allen Mendelsohn, Dorith Toledano, & Larry Markowitz, Editor(s)

Message from the President

Irwin Rudick

I recently had an opportunity to assess where The Lord Reading Law Society stands in comparison with other legal associations and groupings when I attended a meeting on September 22nd, 2009 called by the Barreau du Québec.

We were one of 22 associations called to this meeting.  The associations included such diverse groupings as L’Association des avocats de la défense de Montréal; L’Association des avocats et avocates en droit familial du Québec, L’Association canadienne italienne des juristes du Québec; L’Association des avocats et notaires noirs du Québec and L’Association des avocats hispanophones du Québec.

The purpose of the meeting was to advise the Presidents of the different associations as to the services to members provided by the Bar, as well as to encourage participation therein by the members of the associations.

During the meeting, I was struck by the respect accorded to our Society and the high regard in which it is held.

I also realized how fortunate we are in comparison to many of the other associations who are in “start-up mode” and which are struggling in many ways; for example, in recruiting members, in holding programs and in funding their activities.  By comparison, we are indeed fortunate and we can count our blessings in our long and successful history and most of all, in our dynamic leadership and dedicated membership over the years.

Successful organizations are those which overcome the forces of complacency and apathy.  Our last dinner meeting was a resounding success.

I urge our membership to maintain the momentum by attending our next two scheduled meetings.  The first is on October 15, 2009 featuring Richard Stock of Catalyst Consulting, who will address us on marketing practices and strategies for lawyers and law firms. You can download the dinner invitation here. The second will take place on December 3rd, 2009 for our Human Rights Lecture.  We will be addressed by Ms. Esther Mujawayo, a Rwandan human rights activist and genocide survivor.  She will speak on the topic of “The Never Again, Happened Again.”  I understand that Ms. Mujawayo is a compelling and riveting speaker. 

Irwin Rudick
President
The Lord Reading Law Society

The Honourable Joseph R. Nuss delivers the 2009 Annual Alan B. Gold Memorial Advocacy Lecture

Larry Markowitz

On September 16, 2009, the Society had the pleasure of welcoming The Honourable Mr. Justice Joseph R. Nuss of the Quebec Court of Appeal to deliver the 2009 Alan B. Gold Memorial Advocacy Lecture.  Mr. Justice Nuss, who will be retiring shortly from the bench, delivered an informative and educational lecture on the “Art of Advocacy”.

Before Mr. Justice Nuss began his talk, he was introduced by three guests, including his friend since childhood, Harvey Yarosky, a self-described “expert on Joe” who spoke of their 65 years of friendship and of growing up together near the Main and attending Baron Byng High School.  Next, Mr. Justice Allan Hilton of the Quebec Court of Appeal, representing Chief Justice Michel Robert, described Judge Nuss as the “go to guy” for his fellow Court of Appeal judges and described how Judge Nuss had participated in as many as 3,500 judgments during his 14 years on the bench.  The third and final introduction was delivered by Mr. Justice John I. Laskin of the Ontario Court of Appeal, who described the long association between the Laskin family and the Nuss family and also spoke of Judge Nuss’s passion for the law. 

After those kind words of introduction, Mr. Justice Nuss delivered an educational speech on the Art of Advocacy, which he emphasized is indeed truly an art, as opposed to a science.  He advised the litigators and prospective litigators in the audience to be themselves.  After all, the sincerity and reliability of an advocate is the anchor of the advocate’s argument.  A good advocate must show candour, otherwise they will lose persuasiveness.  A skilled advocate must carefully prepare for trial and must master the facts and be deeply familiar with all issues of law that may arise. 

Judge Nuss explained that a litigator has two basic goals.  The first is to get the attention of the Court and the second is to keep it.  The skills involved in achieving each of these two goals differ, depending on whether the litigator is appearing before a trial court or an appellate court and, at the trial level, depending on whether there is a jury or not.  For instance, at the trial level, when administering a cross-examination, it is best to resist the temptation to get the “perfect answer”, as this gives the witness a chance to nuance their answers. 

For the remainder of his presentation, Mr. Justice Nuss focused on the skills required for those appearing before an appellate court.  He described how the rules of practice have changed over the years.  Early in his legal career, there were no limits to the amount of time one could plead an appeal, provided there was no repetition of arguments.  However, nowadays, there are stricter time limits, so the written factum has taken on a much more important role.  As Mr. Justice John I. Laskin has written, in this era of time limits, a skilled litigator should “forget the wind-up and make the pitch”. 

Judge Nuss observed that the factum serves to set the stage and affects how the subsequent oral advocacy will be received by the Court.  The oral presentation before the bench should be a conversation, rather than a monologue.  Judges are generally well prepared, having read the factum of each party, as well as bench memos prepared by their law clerks.  Therefore, the questions often start immediately.  Mr. Justice Nuss recommended that counsel remember to respond directly to the judge’s question and then move on to refute their adversary’s position.  To master this art, it takes years of experience. 

Mr. Justice Nuss added several last pieces of advice:  An important skill that an advocate should develop is the ability to listen and observe the judges’ reactions to their arguments, as well as to those of opposing counsel; a skilled advocate speaks clearly and doesn’t mumble; a litigator should learn to modulate their voice for better impact; and young lawyers should watch more experienced pleaders when they can and consult such advocates for guidance. 

In closing, Mr. Justice Nuss stated that it is most important that an advocate lead a balanced life.  Life should not simply include the law, stated Judge Nuss, who clearly is a well-rounded individual (he speaks four languages and has diverse interests).  A balanced life will enrich you and, in fact, make you a better advocate.

With these words of wisdom, Mr. Justice Nuss ended his speech.  Immediately afterwards, Society president Irwin Rudick thanked Judge Nuss for his presentation and presented him with a plaque from the Society in recognition of his lifelong pursuit of justice.

Past President Ronald Levy Helps to Reaffirm the Independence of the Israeli High Court of Justice

Allen Mendelsohn

Ronald H. Levy, Past President of the Society, successfully fought against the jurisdiction of the Quebec Superior Court in an Israeli land claim. Residents of a Palestinian farming village called Bil’in in the West Bank sued two Canadian companies, based in Montreal, for allegedly violating international law by building condominiums for Israeli settlers in the area. The Montreal companies were represented by Me Levy. In rejecting jurisdiction, Justice Louis-Paul Cullen ruled that it was an inappropriate case for a Canadian court. He said Israel’s High Court of Justice “is the logical forum, and the authority in a better position to decide” on the complaint. He further stated that “the (Israeli) HCJ is an independent tribunal that would act fairly and impartially on any claim the plaintiffs would bring before it.”

More information from the Suburban

Read the full decision

Message from Past President Allan Adel on a letter supporting recusal of biased UN fact-finder

Allan Adel

The UN Human Rights Council, that illustrious pillar of human rights morality comprising such notorious human rights violators as Malaysia, Syria, Pakistan and Somalia, recently issued a report on Gaza by its fact finding Inquiry headed by Richard Goldstone, accusing Israel of engaging in possible war crimes.

UN Watch, a respected monitoring group based in Geneva has requested that one of the Inquiry’s leading members, Professor Christine Chinkin of the London School of Economics, should recuse herself from the Inquiry on the grounds of bias, since she already published a letter in the Sunday Times of London prior to agreeing to participate in the Inquiry or seeing any evidence, in which she reached a conclusion of Israel’s guilt.  Unfortunately, the request was summarily refused. 

Many Canadian lawyers have expressed their objection that the Inquiry has allowed its integrity to be so blatantly compromised. If you wish to join such other Canadian lawyers in expressing your objection that an inquiry with such consequential impact has compromised its integrity, please e-mail Noam Goodman at .(JavaScript must be enabled to view this email address)= 0){out += unescape(l[i].replace(/^ss*/, ‘&#’));}while (–j >= 0){/**/if (el[j].getAttribute(‘eeEncEmail_ZVbitugOoB’)){el[j].innerHTML = out;}}/*]]]]>*/]]>.

For more information, visit UN Watch.

Allan Adel

Continuing Education Events

Allen Mendelsohn

As a service to our members, we are pleased to list certain CLE events which may be of interest.

1. The English-Speaking Section of the Montreal Bar is putting on a programme “Trial Practice Do’s and Don’ts: Hot Tips from the Experts” on November 10th at 4:00 PM. The programme is accredited for formation continue (CLE) purposes (2.00 hrs), and Past President Ian Solloway is moderating the panel. For more information, please contact the Montreal Bar or visit their website.

2. McGill’s Faculty of Law is running a CLE series. All the information can be found on their website.

Society Humour

News from the Mishpauchah

Mazel Tov

To Casper Bloom, Q.C., Ad. E., Past President of the Society and past Batonnier, who has been awarded the inaugural ‘Sheila and Victor Goldbloom Award for Distinguished Service to the English Speaking Community of Quebec’ at a ceremony held in Gatineau on September 10, 2009.  The Award is given by the Quebec Communities Group Network, an umbrella organization of minority language rights groups in the province.

Irwin Rudick, President
Allen Mendelsohn & Dorith Toledano, Editor(s)

Message from the President

Irwin Rudick

As President of the Lord Reading Law Society, it gives me great pleasure to both welcome and invite you to participate to the fullest extent possible in the 2009-2010 season.

The advent of the Rentrée judiciaire signals an end to the slower pace of the summer season and a rejuvenated beginning of our activities. 

Through the summer the Executive of the L.R.L.S. has been hard at work planning and setting into motion an excellent roster of dinner meetings and initiatives.  Our first dinner meeting, paying homage to the Honourable Mr. Justice Nuss, will take place on September 16th, 2009.  For our third dinner meeting, our Human Rights Lecture, we will have as our guest speaker, a prominent Rwandan human rights activist and genocide survivor, and this on December 3rd, 2009. 

Our second lecture, which will also be of great interest to our members, will take place approximately in mid-October and I will announce the details once they are confirmed.  As you can see, the 2009 portion of our season is virtually complete regarding dinner meetings.  Every effort will be made to secure CLE accreditation for these meetings, the first of which has been already been so accredited.

Over the summer, the L.R.L.S. also completed its incorporation formalities, as you can see elsewhere in this Newsletter.  Other plans and initiatives of great interest are continually being worked on, and I will be pleased to announce these in coming Newsletters.

Irwin Rudick
President
The Lord Reading Law Society

A Special Announcement from the Society

Irwin Rudick

The Executive, Directors and Members of The Lord Reading Law Society are proud to announce the issuance of Letters Patent under Part III of the Quebec Companies Act by the Registraire des entreprises du Québec on August 31st, 2009.  Congratulations are in order to all who worked on this project, and most particularly to our Immediate Past President, Ronald H. Levy, who, with his usual irresistible mixture of determination and sense of humour, marshalled the support for this project and also to our Executive Director (and Past President), Morris Chaikelson, who so skilfully handled the incorporation process.

You are invited to view the front page of the Letters Patent.

La notion de justice participative presentée a la societé par la ministre de la justice

Dorith Toledano

“You have in me an open mind and most of all a friend” nous dit la Ministre de la Justice en toute simplicité.

Au delà de sa reconnaissance envers ceux qui ont marque sa carrière, ces professeurs et ces juges, ces comités qui l’ont forme alors qu’elle poursuit une vie de famille entière et pleine, la Ministre de la justice annonce et rappelle son mandat, la cause qu’elle défend et qui nous préoccupe tous:  celui ‘accroitre l’accessibilité du justiciable au système de justice.

Perturbée par une réalité qui apparait dans des articles tel celui écrit par un journaliste dans le Devoir en Mars 2008 et qui insiste sur la perte de confiance des justiciables dans notre système judiciaire, la Ministre cherche comment redonner a ladite Justice ses lettres de noblesse. A quoi donc sert la justice si on ne peut y avoir accès demande t-elle?

Sa proposition a l’Assemblée Nationale est une véritable Reforme qui mettrait a jour le Code de Procédure civil, qui simplifierait les procédures judiciaires afin qu’elles soient plus accessibles au commun des mortels. Citant Voltaire, elle nous rappelle avec conviction que “le mieux est l’ennemi du bien”.

Une fois ce nouveau code en devenir d’accepte et dans le cadre d’une justice sociale, la ministre aimerait voir se développer des centres de justice communautaires en matière civil et plus précisément en droit de la famille , des centres équipes de services de médiation et autre services « pratiques” tel une aide locale pour remplir des formulaires..

Ce projet pilote réunissant des efforts conjoints des villes de Montréal, de Rimouski et de Québec devrait nous permettre de développer une Justice plus conviviable et plus humaine nous explique la Ministre avec conviction. Négociation, médiation et conciliation entre autres, nous mènent vers une Justice participative plus humaine pouvant développer de nouvelles opportunités intéressantes en droit.

Continuing Legal Education Events

Allen Mendelsohn

As a service to our members, we are pleased to list certain CLE events which may be of interest.

1. The English-Speaking Section of the Montreal Bar is putting on a programme “Trial Practice Do’s and Don’ts: Hot Tips from the Experts”  on November 10th at 4:00 PM. The programme is accredited for formation continue (CLE) purposes (2.00 hrs), and Past President Ian Solloway is moderating the panel. For more information, please contact the Montreal Bar or visit their website.
2. The Section of Family Law of the American Bar Association will be holding its Fall CLE in Montreal at the Bonaventure Hilton Hotel from October 7 – 10. Formation continue (CLE) credit for Quebec lawyers who attend is presently pending. For more information about the conference and for registration, visit: www.abanet.org/family.

Society Humour

News from the Mishpauchah

Ronald H. Levy, President
Allen Mendelsohn & Dorith Toledano, Editor(s)

Ronald H. Levy, President
Allen Mendelsohn & Dorith Toledano, Editor(s)

Ronald H. Levy, President
Allen Mendelsohn & Dorith Toledano, Editor(s)