Gary Joseph   Nov | 2024

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

This week I had the opportunity to attend in person a family law dinner honouring this year’s Ontario Bar Association (OBA) award winner for excellence in family law. It was a lovely event and a great opportunity to connect with the many family law colleagues I have grown to like and admire over the years. There was genuine pleasure on all sides to be connecting again in person and trading stories and laughs as we did all those years hanging around court.

Interestingly, again, a constant topic of discussion was young family lawyers and their absence of advocacy skills. All participants in the discussions bemoaned the loss of opportunities for young lawyers to observe motions, trials and appeals in person. The opportunities we older lawyers had to “watch and learn” were denied by COVID-19 and have not been fully reinstated. We older lawyers need to address this issue and we older lawyers have a responsibility to find some solutions to this problem. I have written on this before but now again put forward these suggestions:

1. Yes, Zoom attendance is convenient and very often time-efficient. The lawyer saves time and the client saves money, but what are the consequences of mentoring? Consider in-person attendance wherever possible.
2. A now retired but very fine family lawyer told me years ago to always have an associate (we used to call them “juniors,” a now “cancelled” term) with me in court. This was excellent advice for many reasons but in the context of this article, I put it forward as a must for providing the associate with the opportunity to learn and observe. In my last long trial, both senior counsel had associates present, and each associate was given the opportunity to question some witnesses and make some submissions.
3. Encourage and permit your associates to go to court to observe. For instance, in Toronto, motion days are Tuesday and Thursday. Permit your associate(s) to go and observe whenever possible. They will learn, and you will have a better associate.
4. Encourage your associates to attend practical CPD programs. My readers know my obsession with the Rules of Evidence. It is never wasteful to have your associates attend CPD on evidence. There are also “watch and do” programs offered by the Advocates Society and of course the summer program at Osgoode on trial practice.

Advocacy, for most of us, is a learned skill. It is also a “use it, or you will lose it” skill. Young lawyers should take every opportunity to “get on their feet” in court. In my youth, I did small claims court trials, landlord and tenant motions and freely took family law legal aid certificates that got me into court.

Finally, the very best advice I can give to young lawyers is to do Child Protection work. Most of this work is on legal aid certificates, but whatever skills I have as an advocate, I owe to the many protection trials I did. You will find that these trials test all your knowledge of the law and the rules of evidence while testing your advocacy skills too. Also, you will be providing an important service to many who cannot afford private retainers.

Interesting side note: I met my wife while doing a protection trial. She was in court as a professional witness and I had to cross-examine her! There is more to that story, but I won’t share it.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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