How Often Do You Go to Court?

[hiccups]

I am a junior associate in litigation and I have only gone to court (virtual included) less than 10 times this year. Here are the things that I had experience doing: 

1. I attended as a second chair for a 3-day trial, and second chair on two full day application hearings.  (In both occasions, I did not make any submissions and just sat there and helped to organize and take notes.)
2. I attended, by myself, approximately 4 to 5 procedural applications that were uncontested and very short. 
3. I only had 1 contested application.
4. I participated in 5 - 6 settlement conferences for small claims. 

I feel very worried that I'm not getting the experience I need. Most of time time I am attending discovery, or drafting applications/drafting affidavits/ negotiating settlments / reviewing evidence / doing legal research.

It's been a whole year and I only went to court and made submissions in a contested application once! Is this normal? I would appreicate insight from anyone with more experience.   

Edited August 20, 2022 by hiccups

[SNAILS]

I was a summer student this past summer. There were very few days where I did not appear in court, and many days where I appeared in 2+ courts in one day (sometimes with two separate judges on two separate monitors). On average (in the later summer) I spoke to 30 matters per week. All of this can be summarized as simple adjournments, trial scheduling, and uncontested motions. This was in a very small but very active criminal firm.

The fairly simple tasks I performed (mostly) prevented me from taking part in several major trials that we did (by drafting factums, research, and attending those trials). I was asked several times by various people at the firm if I felt cheated or deprived by being assigned to attend court all the time and performing other mundane tasks (client meetings to review disclosure, client intakes, etc) instead of getting into what most people would probably consider the meat and potatoes of legal work.

@hiccups, I think there is no correlation between the number of times each of us spoke in court and how much experience each of us got. It all depends on the nature of the practice (criminal, family, corporate, etc) and your role in that firm. 

[Psmith]

Also junior associate in civil lit.

Hiccups, I think your experience is not unusual for someone in our position. Modern civil advocacy is far more about written work, discoveries, and settlement negotiations than court time. I've heard that shift lamented by older barristers, but it's the reality. 

One suggestion. Assuming you do the lion's share of trial/application prep for the big hearings, I'd ask your senior counsel if they'll let you handle a discrete point(s) in the argument (assuming there is a logical split). Sharing time with juniors is actively encouraged by Ontario courts (I'd guess not your jurisdiction, given your use of "application", but hope other provinces won't differ greatly).

[Jaggers]

I spent five years at a big firm. In those five years, I did do a bunch of solo human rights hearings and labour arbitrations, but I put on my robes a grand total of one time, for an appeal of a Small Claims decision at the Divisional Court.

[Aureliuse]

When I started out (in family law), I was one of "Santa's Elf" behind the scenes doing research, memos, prep, notetaking, drafting, due diligence etc. I didn't have much court exposure other than when the partner thought I should come along to watch or take notes at a trial/examination.

Around the three year mark, I began running my own files - motions, conferences, questionings, mediation, arbitration etc. Conferences were fairly frequent (due to the nature of the family law court system). The appearances that require the most prep were motions, questionings, and trials. At most I had 4-5 motions in a year; maybe one trial per year (Depending on the firm and the files).

As family law shifted away from litigation to med/arb, I only went to court for the most high conflict cases. How many times I need to argue a trial/motion in a year also depend on if my clients could afford to pay me to run motions/trials/appeals.

While getting "combat experience" on your feet in court is always recommended, considering that you just started not long ago, there will be more chances in the future.

[hiccups]

First of all, thank you so much everyone for sharing your experience. You have no idea how reassuring it was just hearing them.  

On 8/21/2022 at 4:52 AM, SNAILS said:

I was asked several times by various people at the firm if I felt cheated or deprived by being assigned to attend court all the time and performing other mundane tasks (client meetings to review disclosure, client intakes, etc) instead of getting into what most people would probably consider the meat and potatoes of legal work.

It sounds like we are on opposite ends. You're right that it just depends on the firm and the type of work we do. 

On 8/21/2022 at 5:31 AM, Psmith said:

Modern civil advocacy is far more about written work, discoveries, and settlement negotiations than court time.

It was super reassuring to hear that the pacing is not unusual.  I agree significant amount of time is spent doing discoveries and settlement negotiation. I understand they are important skills, but I do worry that I'll become competent at doing prep work but when it comes to the time to argue a case (when I am senior enough to do that) I won't have the skills to do so! 

On 8/21/2022 at 5:51 AM, Jaggers said:

I spent five years at a big firm. In those five years, I did do a bunch of solo human rights hearings and labour arbitrations, but I put on my robes a grand total of one time, for an appeal of a Small Claims decision at the Divisional Court.

This is actually about to happen to me. I am assgined to a small claims trial and I'm a bit shcked, having only done one contested application only. I've never directed or crossed a witness in my life. I am trying my best to prep for it by watching videos and reviewing the file as much as I can. 

20 hours ago, Aureliuse said:

I was one of "Santa's Elf" behind the scenes doing research, memos, prep, notetaking, drafting, due diligence etc.

This is me! I am definitely an elf behind the scenes. 

 

[Hesse]

Your experience isn't uncommon at all. I articled in Big Law civil litigation and can count on one hand the number of times I stepped foot in a courtroom during my entire articles (either to take notes or to speak to an uncontested application in chambers). The experience wasn't much different for junior associates there: most were just in court to take notes or second chair rather than running anything solo. 

The reality of civil litigation (especially in a larger firm environment) is that trials are the exception rather than the norm and the majority of the work is done outside of the courtroom.

Edited August 24, 2022 by Hesse

[JadedBayStreetLawyer]

I can't say I've done more than that. The feeling is natural. Keep at it. Make your desire known in an appropriate (i.e. humble) way. It'll come.  

[Jaggers]

I never went to court as a Bay St associate. I had one small claims court trial, which I won and the self-rep plaintiff appealed to the Divisional Court. That was the only time I ever put my robes on, other than the call to the bar. But I did cut my teeth at the Human Rights Tribunal, labour arbitrations and a handful of WSIAT appearances.

That and the Landlord Tenant Tribunal when I was a student at Parkdale. That was a really valuable experience.

Edit: Looks like I said this same thing a month ago. But I'll leave this since I added the Parkdale piece. That was my first time getting up on my feet and arguing real cases, and I loved it, even if it's the wild west of litigation.

Edited October 1, 2022 by Jaggers

[CleanHands]

I have four court days next week (edit to clarify: not just asking for an adjournment on a matter, but I mean full docket and trial days, with several trials on each trial day).

Really don't care if I get shot over the weekend.

Edited October 1, 2022 by CleanHands

[Hegdis]

Yeah, criminal is where you live in a courtroom almost every day. CH and I would both expect to be in a courtroom at least four times a week. 

[Rusty Iron Ring]

Getting significant time in court as a civil litigation junior for anything other than Wagg motions, undertakings motions, and sub service motions was a challenge even pre-covid.  Now everything is moving so slowly, and so much has been shunted off into written-only hearings, that I have to assume it's much harder. 

Don't fret about it too much.  Focus on doing a really good job of it when you have a chance (really well prepared materials have become so rare that they tend to get noticed) and, whenever possible , stick around in court after your hearing to watch others have a go at it.  It's impossible to stress enough how much you can learn from just watching a few different kinds of proceedings in the early years. Even just sitting and listening in assignment court or civil practice court or whatever your local equivalent can teach you a lot. And occasionally you'll get lucky and have a judge or master who likes to update counsel on new rules or procedures in the courtroom, and you can come back to the office with useful recon. 

[t3ctonics]

When I was a junior associate I was in court probably 3 times a month on average. This was mostly for foreclosures, which was always assigned to a junior associate or two, and which involve a lot of routine Chambers appearances here in Saskatchewan (the main one being you have to get leave to commence foreclosure proceedings). These were usually contested, and almost always with self-reps. I didn't like it, but it was a good learning experience and I got a lot more time in front of judges than any of the associates who didn't do foreclosures. By the end of my first year as an associate I had done more contested chambers applications than all but one other associate in the office - the one I'd taken over foreclosures from.

Outside of foreclosures I was in court maybe once a month. Many of those would be the uncontested procedural matters (which often got handed to me when the lawyers on the file didn't have time to deal with it), but there were some big contested applications where I was second chair and didn't make submissions, a few early appearances for the sub-handful of criminal matters I worked on, and just a few contested applications on my "own" files. I also sat in on one civil trial and ran one traffic court trial (client was a business owner who needed to drive to site visits so it was worth it to save his license), and ran a few Office of Residential Tenancies hearings.

This isn't counting things like mandatory mediation, case management, discovery, etc. I had maybe one thing like that a month too, mostly for the insurance defense files I was assigned to run on my own.

So on average I'd say there were perhaps 4 days in a month where I'd go to court, or be in something court-adjacent like mediation or case management. The rest of the time was doing research, reviewing documents, drafting, and meeting with clients, partners, senior associates, etc. The office work is by far the biggest part of civil litigation practice. Looking back, I think most of the litigation partners were probably only in court once a month, with one exception being the main bankruptcy and insolvency partner. It seemed like he had something most weeks.

[Phaedrus]

I'm junior counsel and practice criminal, family, and "social justice" areas. My criminal practice has me in court 3/5 days a week for varying degrees of complexity. Family has me in court ~4 days/month, mostly by telephone. Our courts here are jam-packed and most of my appearances are pre-trials, conciliation hearings, and settlement conferences. My social justice files have me in tribunal hearings once a month or so. 

If I didn't practice criminal or family, I'd expect to attend court a handful of times per year at most. My colleagues in corporate rarely see a courtroom. 

I don't think your experience is abnormal. When I was clerking, I was tasked with a lot of arraignments and setting matters over, but was never asked to make submissions. I was thrown into the deep water as an early call and you make the most out of it you can. My practice was to attend colleague's court matters for observation, knowing that I had to make the time up later. Superior Court murder trial? To this day I'm sitting there and watching for half a day if I don't have a court appearance on the go. My matter ended early? I'm sitting there to observe for a few hours.  Hell, I'll regularly attend traffic court just to see how officers respond to direct/cross-examination and to size-up the Crown. It's an investment; judges/justices see you there, and you learn to be comfortable in the courtroom. 

Perhaps I'll add more later, but there's truth to the notion that you'll never be as prepared as you'd like - and that's terrifying as young counsel and you bear the weight of your client's case. Your fuck-ups can have serious consequences for your client and your career. The fact is that all you can do is prepare to the very best of your ability, and to leverage your resources. Attend court when you can, bounce ideas off colleagues, and review the relevant law/textbooks. Draft, rehearse, refine. Have senior counsel or trusted friends grill you questions (I've drafted anonymized versions of trial fact patterns and have practiced direct/cross examination, asking the person to "be evasive" or "be forgetful" so I'm forced to deal with it). Shit goes sideways, a lot, and you eventually have to learn by doing. You'll take your lumps, but everyone does. 

Edited October 3, 2022 by Phaedrus

[CleanHands]

6 hours ago, Phaedrus said:

Shit goes sideways, a lot, and you eventually have to learn by doing.

After two back-to-back absolutely batshit self-rep trials today I can't second this enough right now. haha

[Hegdis]

There are some key phrases all counsel need to know to get out of a tight spot.

"Your Honour, I wonder if we might stand down briefly so I can seek instructions from my client."

"Your Honour, I hadn't turned my mind to this issue and I would like the opportunity to consult senior counsel regarding next steps."

"Your Honour, I note the time and would appreciate an early break so I might better prepare for the _________ [ cross examination / submissions / reply]."

"Your Honour, with my apologies, I did not anticipate this particular argument and would like to review the caselaw before going any further. Perhaps I might have a half hour / half day / an early lunch break ?" 

Now, only use these when you have to. It's not a good look if you didn't do the necessary preparation and didn't research the law ahead of time. A young Crown who got Charter Notice had better be ready with the case authorities and applicable tests on hand. A young defence had better know how their client's statement to the police can and cannot be used against them at trial. These things you see miles down the road and not being ready will anger the judge.

But if all of a sudden opposing counsel brings up some argument or consideration that hasn't been brought up previously, and you're new at this, flag it for the record and get yourself prepped before opening your mouth. If the judge makes you go ahead anyway and it explodes your case, you've preserved the record for a possible appeal. But most judges have no interest in doing that. 

[Jaggers]

Being in court is so different from being in a labour arbitration. My goto was "This is totally new to me. I'm going to need a break."

I guess that's the difference when you are the decision-maker's client as well as a party (to be fair, the union is in the same position).

[MOL]

 

I was given a break mid-appeal when the Court came at me out of the blue on a corollary issue that they decided was the main issue. Didn't help, still got my ass handed to me.

I do mostly insurance defence with some commercial litigation. I have been in two trials in the past year. Before that it, it was probably 5 years since I last did a trial. Peaks and valleys but trial time is getting harder and harder to come by because it's so bloody expensive no one can afford to run them. Longer half or full day applications are a bit more common but good luck getting a date within a reasonable timeframe.

Civil litigation is now predominately a discovery/settlement exercise.

[Jaggers]

42 minutes ago, MOL said:

Civil litigation is now predominately a discovery/settlement exercise.

This is particularly true in employment law where many cases are worth less in total than a couple of days of trial. 

I really thought we were heading for a trial in November (I wouldn't run it, of course, just watch) but we just settled it on Friday. We do a lot of motions, but that's about it.

[happydude]

Civil litigator here. I am actually rarely in court. The practice is essentially drafting pleadings and thereafter attending mediations, discoveries, and/or pre-trials with a view towards ultimately arriving at a settlement. I've never actually had a case progress to trial yet, although to be fair, I am still not overly experienced (more intermediate stage), and some of my cases have come close. Sometimes I do motions. But it is not the norm. I would not call it rare, per se, but my "average" file does not require a motion. I can certainly say that. And those files that do require motions more often than not involve uncontested procedural things. Who wants to spend the time and expense of running a contested motion, anyway? People are busy enough as it is. All the time prepping materials. The risk of cost consequences if you lose. Etc. Sometimes it is necessary, of course. But most of the time, if both counsel are being reasonable, a contested motion can be avoided and the two sides can arrive at an agreeable path forward without having to turn to the courts.

Edited February 15, 2023 by happydude

[PzabbytheLawyer]

I love hearings, and I love court. It's a sad feature (not a bug) of our civil litigation system that most of it, as it should, stays out.