The following is an excerpt from the acceptance speech that Michael Eizenga, 2024 recipient of the OBA Award of Excellence in Civil Litigation, delivered at the OBA Civil Dinner on November 25, 2024, in front of a collegial and congratulatory crowd of powerhouse litigators, justice sector leaders, rising stars of the profession, and colleagues, friends and family, at the Royal York Hotel in Toronto.

We are litigators. We understand the importance of a skilled and professional bar to the administration of justice. We respect the role that the administration of justice is meant to play in our democratic system of government – its role in maintaining accountability, social cohesion and access to justice.

But I have to acknowledge that we often exercise our skills in a pretty controlled and rarefied environment. 

When we go to court, we have an immediate right of audience. We get to calmly lay out a road map for how we intend to take the judge through the process of understanding and then being persuaded by our argument. 

Of course, those of us who have appeared in front of Justice Perell know what it is like to be just getting to the main verb in the second sentence of your road map when you get asked that penetrating question that goes right to the heart of your case. (That is the moment when you’re glad you have that three-sentence narrative at the ready. “Justice Perell, here’s what this case is about at its core…”).

But I think the point is straightforward. We operate in the dignity of wood paneled court rooms – sometimes wearing gowns.  We have rules of procedure and argument and rules of evidence that give us a shared reality to debate from.

So the question is this: In our increasingly fraught and tribal world, do the skills of the litigator apply outside the respectful context of the courtroom?  In that world, where public discussion is so often hurtful, coarse and shallow –where angry language is sometimes designed to strain at the crevices that already exist in our social cohesion. 

My answer is that effective litigators spend their careers developing a set of skills and capacities and a discipline that is exactly suited to the task of restraining and even pushing back against those fragmenting forces.

We have spent our careers – inside and outside of the courtroom – cultivating our understanding of the power of words … to explain, to persuade, to move. And we are clever and trained enough to find the right words, and we can be disciplined and, yes, even kind enough to find ways to speak and respond that do not harden the lines between us.

From what I’ve seen, effective litigators have a great capacity for empathy and human connection.   

That controlled courtroom context that I described a few moments ago is actually an incomplete picture of what advocates do. Both inside the courtroom and, before we get there, while our cases are painstakingly being developed and scrutinized, we are engaged in a complex, very relational, attention-paying process: with our clients –as we draw out their stories and needs; with the other side and their lawyers as we listen and try to understand their wants and capacity to move; with our colleagues as we try to figure out if there is a right way forward – or at least a good one. And often we find it.  All these interactions depend on a capacity for empathy and respect which are part of the stitching of the fabric of our social cohesion.

I want to make clear: this is not a question of  acquiescing to “both sidesism”: that caricature of the plea for civility and decency as a pitch for seeing that both sides sort of have a point and can’t we just make nice? 

Last year, Linda Plumpton spoke powerfully to the rising tide of hate that has manifested itself as anti-semitism, islamophobia, racism, homophobia and misogyny.  And the year we have just been through has been no better. There are perspectives that I want us to defeat at the ballot box and in the courtroom

It is a question of how we engage with our fellow citizens. So I have 2 exhortations:

First, we must never normalize the ravaging nature of the language of the rage-farmers by responding in kind. 

Of all people, we litigators are capable of doing this the right way. This is not to ask that we set down any of the tools in our tool box. Quite the contrary: There remains power in the way we can harness logic, passion and truthful integrity. We know we can find words with genuine potential to persuade as opposed to those words whose only impact will be to inflame. And our discipline in avoiding those words – and it a discipline because sometimes we don’t feel like exercising restraint –but that discipline reflects on the system of justice we care about.

So many threads of social cohesion depend on our capacity to maintain respect for our system of justice among our fellow citizens. And in so many ways, the reputation of that system of justice is staked to the quality of the lives of all of us who work within it.

The democratic virtues of civility, restraint, communication of truth with both determination and care – still enhance the reputation of our system of justice inside it and out. 

Second, we must never disengage.

In her 2024 book, At a Loss for Words: Conversation in an Age of Rage, Carol Off writes that “the rage that has engulfed us is exhausting, rendering us almost incapable of rational conversations.” 

And so, we retreat.

That can never be us. The antidote to exhaustion is engagement. We must stay engaged – so many of you already are. We must stay generously engaged in community groups, in public discussions, on boards, in charitable works including those that have sightlines beyond our borders and those that serve vulnerable members of our community who so often cry out the least but suffer the most. We understand our professional work is but one piece of the social justice imperative.

But from what I’ve seen, the skills, disciplines and capacities of litigators fit us for full range of activities outside the profession. The more fragmented our society feels, the more engaged with it we need to be. Social cohesion requires human connection and especially the kind that litigators, of all people, are able to engage in.

It is a genuine honour to share the mandate of being a litigator with you all.

View the OBA Civil Dinner photo gallery.