It is a noble calling. It is hard to be good at it. We should all be proud to be members.
On June 21st, 2017 Donald H. Rogers was honoured by his peers at a dinner at the Toronto Marriott Downtown Eaton Centre Hotel in Toronto.
The OBA Award for Excellence in Insurance Law was created to recognize and thank outstanding members of the Ontario Bar Association for their exceptional achievements, distinguished service and contributions.
Below is the transcript of Don's speech. [View the event photo gallery.]
Justice Wilson, Justice Moore, members of the judiciary, fellow advocates, friends.
When first approached about the award for “excellence in insurance law”, I thought it was the OBA award for “endurance in insurance law”, which in my case, probably makes more sense.
I confess that I felt mildly uncomfortable about accepting this honour when first approached. First, to be truthful, I was afraid nobody might come.
Also I admit I am a little embarrassed to be up here tonight especially when I look out and see so many faces of very talented lawyers for whom I have very great respect. But look, I recognize that the very kind gesture of the nominating committee is really the selection of a surrogate to honour our profession in the particular field in which we practice – the talented insurance law bar, of which this year I am the representative.
It is a good excuse to get together with our colleagues in a relaxed social setting.
I have never really been sure what “insurance law” is. As almost all civil litigation is fueled by insurance money, it is a very wide field of legal activity. This is a good thing because I don’t actually know much about insurance. What we do have in common is that we are civil litigation lawyers – our function is to manage the pooled insurance proceeds to see that the right people get the money.
Being an insurance lawyer is not easy. Our clients, some of whom are here tonight, can be difficult. Sometimes our opponents can be unreasonable and downright obnoxious. My experience has been that, by and large, the insurance bar is generally agreeable. The stresses can be significant. I know, looking out at the audience tonight that, among you, there have been many many sleepless nights worrying about your cases and your responsibility to your clients.
We all know that the practice of law is not a bed of roses. It is hard work. It is stressful. You never have a vacation without worrying about what awaits you when you return. You worry about the business side of the practice. Where will the work come from? Should we renew the lease? Is our staffing appropriate?
Then, most stressful, the management of our actual cases. How can I be in two places at once? How can I get over this difficult problem in this case? “This case could really go wrong.”
When clients ask me, “is this a big case or a little case?” I usually say: “I don’t know, ask me again when it’s over.”
But as this year’s representative of the insurance bar, and someone who has been at it for quite a long time, I would like to reflect briefly on some of the many good things that flow from our membership in this exclusive club – the insurance bar. I think about this often.
I have had cases with many of you in the audience tonight and the Ontario insurance bar at large. It is a relatively small group of men and women. We get to know each other either by firsthand interaction or by word of mouth. Word of mouth does get around. Unique relationships develop among us, not necessarily as close intimate friends, but rather as trusted and respected colleagues, although often adversaries, in an important endeavour, the civil justice system.
When I was called to the bar many years ago, I was immensely proud to be admitted to the legal profession. To be a professional meant a lot to me then. I was impressed by the responsibility that this entailed. I don’t know about lawyers entering the profession today and I may be hopelessly naive. However, I feel the same sense of pride, and corresponding responsibility today, as I did then. In fact, I think I feel it more strongly now than ever I did.
It is a noble calling. It is hard to be good at it. We should all be proud to be members.
Think about some of the benefits of our profession and our area of law in particular, as compared with other jobs in our society.
Let me list some of the things I like:
We enjoy the thrill of the contest – the challenge of an adversary proceeding – the highs and lows of wins and losses. Conducting a litigation practice is like managing 100 chess games, all at one time.
As I get older the pain of the losses outweigh the pleasure of victory. But, win or lose, it is never dull.
A case is kind of like a tennis match or a golf game. When an opponent scores a point with a good solid cross-examination, it hurts. But, as a professional, you have to admire the work and say to yourself, “Gee that was pretty good”.
There is the privilege as a young lawyer, of seeing great legal work by more senior leaders of the bar as we progress through the professional ranks. In my case I witnessed many very good trial lawyers from the past – wonderful lawyers like Doug Laidlaw, Brendon O’Brien, Pierre Genest and Paul Lee.
I even saw the great John Robinette, note at the Supreme Court of Canada, but, believe it or not, at an inquest on a Saturday afternoon in the basement of a cheap suburban hotel.
Our work is very interesting. I often think about the variety of our cases. Our cases are, yes, law cases but they involve a host of other important disciplines. In the course of our careers we delve into numerous complex and varied topics.Among them are medicine, including orthopaedics, neurology, psychology, psychiatry, and obstetrics.We analyze engineering problems, and apply principles of accounting and economics to our cases.
Our cases involve car crashes, fires, collapsing buildings, leaking roofs, train wrecks, breaches of professional standards, business disputes, and many more. For a short time we learn a great deal about each of these separate and distinct disciplines. Then we have the luxury to forget what we have learned and move on – next case.
I don’t know of any other job which provides such a wide and fascinating variety of challenges, involving so many diverse topics of interest.
Think also about the insight we gain by necessarily combing through the private lives of litigants in civil suits. No other profession has the broad insight into the infinite variety and complications of the human condition. We are privy to confidential medical records, business records, tax returns, family disputes and all manner of the most personal details to which no other calling is privy. (Except perhaps psychiatry) This unique window on humanity teaches us that life is complicated and few things are as black and white as they may seem on the surface. Human beings are very complicated. Human beings are very interesting.
Look at your friends in other lines of work and I think you will find that none of them have the same breadth of opportunity to observe and contemplate the infinite nuances of everyday life, as do we.
And finally, for me, it is the traditions of our profession that I find so appealing.
I love the pomp and circumstances of our courts – diminished by modern convention but still impressive.
I admire and respect the courtesies inherent in our justice system, both in court and in our day to day professional lives. The way we interact with one and another in our cases is very important.
As Chief Justice Warren Burger of the United States Supreme Court once observed:
“Manners and decorum, especially in the courtroom, are the indispensable lubricant to the inherently contentious adversary process.”
I love the fact that we wear gowns in Canada. I love the old courthouses around the Province, constructed when the State considered it important to have majestic buildings to showcase our justice system. These are sadly disappearing but a few still remain - Peterborough, Cayuga, Sault Ste. Marie and other communities. Somehow, the new courthouses just don’t have the same appeal, to me at least.
I love our magnificent Osgoode Hall and its rich traditions. The banked Queen’s Bench courtrooms, the wonderful oil paintings of past Chief Justices. All of these form part of the fabric of the legal profession, and in particular, the litigation branch of that profession of which I feel privileged to be a part.
Last, but perhaps most important, we are all privileged to be part of this exclusive club. It comes with significant responsibilities, yes, but, also, with many, many more benefits.
And make no mistake, despite all the lawyer jokes, you are respected, especially among the clients who get to know you and see and understand how difficult it is to be good at what you do. There is no greater professional satisfaction than having clients who trust and rely upon your skill and judgment.
I was immensely proud when I was called to the bar many years ago. Since then I have had countless cases with scores of lawyers, before many Judges, with and against an impressive array of talented men and women who, for the most part, conducted themselves with considerable skill and professionalism in the discharge of their duties. They have gained my respect. Many of you here tonight are among them.
Being an insurance lawyer is not always an easy job, but it is a great job. I am very glad that I chose to be a trial lawyer and I hope you feel the same way.
Finally, I want to thank each of you for taking the trouble to come tonight. I was afraid the hall would be empty and I am very grateful to see you here.
Donald H. Rogers is a founding partner and Counsel to Rogers Partners LLP. Don is one of the most experienced trial counsel in the province, and has argued cases at all levels of trial and appellate courts in Canada and before numerous administrative tribunals.