“The Long and Winding Road” : Reflections on an Atypical Career

For reasons not entirely clear to me (except perhaps my longevity), our section editor has asked me to reflect upon my career and offer whatever pearls of wisdom I may have gleaned.

My esteemed colleagues (Harvey J. Kirsh and Geza Banfai) came to construction law relatively early in their careers. In my case, however, it took me many years before the winding road I followed led to this door, and even then my practice also focussed on a few other areas of law, such as real property disputes, failed real estate deals, and commercial lease litigation. My practice also was exclusively as a sole practitioner or in a small firm (never larger than 9 lawyers). It was not until the early 1980s that I had my first construction case under the old Mechanics Lien Act, and only at the end of that decade did I begin to develop a construction law practice.

Unlike my colleagues, I also know when I will stop. In July of 2024 I had an epiphany: I realized that I was about to turn 79 and was into my fifty-second year of being a lawyer. I still loved what I was doing, my clients still thought I had my “A-Game”, and (better yet!) were still calling and paying. Nevertheless, I had a long bucket list of other things I still wanted to do, and it was time to get started on everything that I could not do while being a full-time lawyer. I have set June 30, 2025 as a retirement date from private practice, but not from my legal interests – my final comment in this reflection.

One of the consequences of practicing law for a long period of time in a collegial and specialized bar is that some of our members have ascribed to me the virtue of “legal wisdom”. Little do they know! “Legal wisdom” is the end product, in my case, of (i) having had numerous opportunities to make dumb mistakes, (ii) taking full advantage of those opportunities, (iii) applying a minimal level of intelligence so as not to make the same mistakes, and (iv) repeating his process until I finally figured out how to advise and litigate.

There have been many changes in our profession that have occurred since March of 1973, when I was a fresh-faced, eager, and completely inexperienced aspiring lawyer, far too many for even a lengthy reflection. A quick look back, however, will give all of us insight into where we are as a profession and a specialized bar. Knowing where we, as a profession, came from is invaluable as a guide to what to do next, the only real purpose of a reflection.

Then and Now, and Along the Way

The human mind tends to colour recollections and make us believe that the “good old days” really were better. Like the prophet Carly Simon, I believe that “these are the good old days”.[1] While we have lost some of the advantages that existed in the past, they are far less than what we have gained, and the best of what we have lost can still be regained. Since I tend to think in terms of lists and numbered paragraphs, what follows is my highly personal list.

Then

1.       In the 1970s and into the 1990s it was far easier for lawyers to try cases. The 2 to 3 day trial with 20 to 50 documents was the norm for most civil litigation cases, in areas as varied as family law, criminal law, insurance law, insolvency, personal injury law, employment law, corporate law, estate law, and even the tort of passing off. I tried all of these types of cases at one time or another in my first 15 years, including a few appeals and smattering of such odds and ends as judicial review, a contempt motion, and guest appearances in the Tax Court of Canada and the Federal Court of Appeal.

2.       Even construction and commercial cases were easier. In my few ventures into the Toronto Lien court in the early 1980s, the Master at the time (I recall his name was MacRae) believed it should take no more than 5 minutes of direct evidence for a lien claimant to prove its case. Typically at the opening of the trial (in reality, the pretrial) the Master left the courtroom and allowed the senior lawyers to explain to the rest of us the negotiations that were in place and whether the case would likely be settled in a few months. To this day I still recall the patience of Murray Armel (Jeff’s father) in answering all my questions, and my pleasant surprise when the covering letter and releases arrived in the mail a month or so later, along with an escrowed cheque for a settlement in the range of what I had been told to expect.

3.       If all of this sounds like paradise lost, it was not. On the other side of the ledger were the large number of older judges, for whom the phrases “grumpy old man” or “he’s a character” are the only polite descriptions I can give (and, yes, in those days they were almost always male). The trial bench was starting to change when I began, but the grumps and egotists were still around and ready to pounce on counsel, particularly young counsel. The judges I faced in the court of appeal were knowledgeable and very intelligent, but many of them believed that “counsel has 2 minutes of free time and after that has to earn every second”[2] A few of them seemed to give me about 2 seconds. All of this, thankfully, started to change by early 1980s when most of the older trial and appeal judges retired and were replaced by people similar to those we have today.

4.       The paperwork of litigation was also different. Until the early 1980s, counsel on motions and applications were not required to file motion records or factums, and only the better counsel did so. Exhibit books with agreed documents were even rarer until the late 1980s. Expert witnesses were not required to serve reports until the mid 1980s, and witness lists were often exchanged (if at all) on the eve of trial.

5.       While I did not appreciate it until years later, I had started as a lawyer at the tail end of the era of the “general counsel” – the lawyer who could, skillfully, try a criminal case on Monday, conduct a patent discovery on Tuesday, argue a corporate law appeal on Wednesday,  settle a complex personal injury case on Thursday, argue a lien motion on Friday, and schedule for the following week cases involving property rights, leases, and disputed wills.

6.       The growing complexity of the law has put an end to lawyers who can practice skillfully in this many areas of law. By being at the very end of this era, I had the opportunity to absorb both the substantive law and the factual complexities of many areas of law. I believe that this broad initial practice made me a better lawyer.

Now

7.       If I flash forward to the modern era, the changes have been extraordinary, even excluding the use of electronic technology in the post-Covid-19 era.

8.       The typical litigation lawyer now practices to a significantly higher standard than 30 years ago. Our preparation is more thorough, from the start of the case to trial and appeal. The last 5 decades have seen lawyers obtaining far more information at the beginning of the case, allowing them to focus earlier on the essential facts. Cases with 50 documents or less are the rare exception, not the rule. Pleadings are significantly longer, but typically far more focused on the specific issues in the case, and better drafted then in earlier eras.

9.       The same is true of our judges and associate judges. Counsel receive far better hearings than in the 1970s (and even the 1980s), and the questions from the bench are real questions, not a tirade from a judge who is more than eager to tell you that you have a losing argument. The quality of all written judgments has also improved significantly. Judges as well as lawyers now receive the opportunity to learn to write better, and both do so.

10.      Unfortunately, we are still not in paradise. The growth of litigation has far outpaced the size of our judiciary and the resources in the civil justice system, and far too many lawyers do not have the opportunity to learn our skills in the School of Hard Knocks (an academy which has only bruised sophomores and no graduates). While I am by nature an optimist, I do not see a clear path to the end of systemic delays. Quicker access to the court results both in better lawyers and more settlements.

11.      There are also two skills in particular that have atrophied over time, but I believe that we can, with effort, regain these talents - the art of negotiating a settlement and the knowledge and use of the law of evidence.

12.      The use of pre-trials (1977) and now mediations has stalled the development of the skills lawyers need to settle cases.  I do not intend to denigrate either pre-trials or mediations (which can be remarkably effective), but their presence in our system has lulled some lawyers into believing that settling a case directly with the other side is not their job. I disagree. Our clients deserve to have advisors as well as advocates. Telling a client to accept less or pay more is never easy, but this is an essential legal skill that is often ignored.

13.      I have also noticed a growing trend among some lawyers to pretend that the law of evidence is irrelevant in civil cases, particularly with the indiscriminate use of hearsay in affidavits. Our construction lien associate judges confront this problem frequently. The lawyers who attend our programs are aware of the problem, but the attendees rarely include the lawyers who ignore the law of evidence. The experience of having tried criminal and civil jury cases has drummed into me the importance of using only admissible evidence. We as lawyers are also gatekeepers, and lately too many in our profession have been asleep at the switch.

Along the way – my mentors

Somewhere between 1973 and 1982 I had the benefit of advice from 3 senior lawyers, who unintentionally mentored me. The advice they gave me required decades for me to master. Everything they told me is still true today:

(a)      In my articling year Jack Weir (the senior partner of what was then Weir & Foulds) gave 2 or 3 “talks” to the firm’s associates and students. Jack Weir was a highly accomplished “general counsel” with a remarkable knowledge of the law and a keen understanding of the trial process. In one of his talks, he told us that cross-examination is easy but examination in chief is far more difficult to do effectively. He also told us that when cross-examining never ask a question unless you know the answer or you do not care what the answer is – the later point being that the witness has no credible answer and the question discloses this. In another talk he also told us that the most important part of preparation was “thinking about the case”, a topic for my final section.

(b)      Ian Scott taught civil procedure to my law school class and was a fearless and brilliant trial and appellate advocate. When he entered Ontario politics he was an effective Attorney General. Years after law school he told me that 80 per cent of the time it did not matter in a case who were the lawyers, as long as they are both reasonably competent – the case will be decided by the judge’s perception of the evidence, especially the witnesses. In my innocence I asked him when I will know which case is one of the 20 per cent where my abilities could make a difference. His reply: When you have the answer, tell me because I do not know. After 52 years I can tell you that I also do not know. I have had cases where my client thought I made a difference, and told me so. This, I suppose, is as close as any of us will come to knowing if we made a difference.

(c)      Jack Pinkofsky was the most dedicated criminal defence lawyer I ever met, a person who would never give up on a single point, no matter how small, and whose cross-examination skills could unravel even the most carefully constructed prosecution case. I shared space with him for several years, and during that time the number of dumb mistakes I made started to drop off dramatically. Jack once told me to cross-examine with psychological insight – if a Crown’s witness says something that damages the defence, assume the witness is wrong, and try to figure out why the witness is giving this evidence. I remember the light bulb that went on in my head when I heard these words. I also remember the decades it took to learn to apply this advice during cross-examinations.

Along the way – construction law and legal writing and speaking

My first few construction cases started in the early to mid 1980s when the vagarities of my practice led me to a few lien trials and breach of trust defences. I found this work interesting, particularly when I did my first trial in the early 1980s under “new” Construction Lien Act. Nothing in my broad practice, however, led me to believe that this would become a personal passion and a mainstay of my practice. In the late 1980s, however, I stumbled my way into doing counsel work for new home builders, condominium and property developers, and commercial landlords – the largest of whom did business in all 3 fields.

I discovered, to my surprise, that these clients also occasionally had construction lien problems. As I began to seriously study the Construction Lien Act I realized that these industries had lien issues and defences quite different from what normally occurred in other projects. Slowly, I began to master these niche areas and then, quickly, I discovered that I apparently knew more about the law and the practical problems in these areas than most of the established lawyers whom I dealt with. I also discovered that these lawyers were, almost to a person, unusually well-informed, collegial, and passionate about their specialty. During these years, my practice had focused largely on leasing issues and litigating the large volume of failed real estate deals after 1989. Encouraged by my then-associate (and continuing friend) Howard Gerson, he and I began to write case comments and annotations in this field, which I then expanded to speaking gigs at continuing education programs. Eventually, I realized that the same urges that prompted me to write in these fields also drove me to write about and speak on my niche areas of construction law, and for several years to serve on the executive of our section. This, in turn, led to more work from construction trades. Somehow, by the early 1990s I had morphed into a construction lawyer and a self-proclaimed expert and presenter in my niche areas.

Pearls of Wisdom?

Shakespear’s description of the “Seven Ages of Man”[3] includes, as the fifth stage, the older man (a “judge”) who is “full of wise saws and modern instances”. The phrase is usually understood to mean an experienced older man giving advice to young men so they will to avoid the mistakes the older man had made as a youth. I do not believe this is the only interpretation. There were many things I did which I am convinced were correct, but I leave it to those of you who know me decide which were my mistakes. Every experienced person has their own “wise saws”, but here are my Top Twelve:

1.       We are a profession. Courtesy and doing the right thing still matter, even with the pressures put on us by clients, time, and events. I echo Geza Banfai’s admonition to always do the right thing.

2.       Being a  lawyer does not require a monogamous relationship with your profession. Make time for a real life. Yes, you have heard this before from others, but it always bears repeating. Having a real life outside the law will make you a better person, but it will also make you a better lawyer.

3.       “Thinking about the case” (Jack Weir’s advice) is the most important task you will ever have as a lawyer, and you should do this at each stage of the case. After you have reviewed all the evidence, including your evaluation of the witnesses, ask yourself one question: What probably happened? If you are too close to the case to do this, ask a non-lawyer friend or a non-lawyer spouse or partner. At the earliest stages of the case you will see the holes in your case, and at the later stages “thinking about the case” will guide your settlement strategy. 

4.       “Never give up” was Jack Pinkofsky’s credo. This is what you do after you have pointed out to your client all the problems after “thinking about the case”. If your client still wishes to proceed, then approach the evidence from the Pinkofsky perspective – why are the witnesses or the paperwork wrong?

5.       Can you summarize the case in a few brief sentences? If you cannot, you do not understand it. See paragraph 3.

6.       Learn to write concisely, both the affidavits you draft and especially the factums you prepare. Judges are inundated with too much volume and too much non-essential information. Just because you have a 20 or 30 page limit does not mean you have to fill every page. Say everything you need to say, and nothing more. Judges appreciate a pithy argument. I greatly admire a pithy argument. I have rarely been able to write a pithy argument, but I urge all of you to do better than I did.

7.       The strength of this section is the specialized knowledge of our members, propelled (to a greater or lessor extent) by the intellectual curiosity that almost all of us have about our field.

8.       There is no such thing as knowing too much law. The great weakness of specialization is that it closes our minds to other legal concepts or factual issues that add depth to our judgment.

9.       The law every construction lawyer should know includes civil procedure, evidence, contract law, trust law, tort law in general, and elements of corporate and tax law. Keep reading cases and commentaries in these fields. Even if your firm will not want you to take on non-construction cases in these areas, talk to the lawyers either inside or outside  your firm who practice in these branches of law - you will be pleasantly surprised by what you learn and can use.

10.      The areas of law I also practice – real property claims, leases, and failed real estate deals – are also invaluable in giving depth to your understanding of construction problems. See paragraph 9 above.

11.      Insolvency law deserves a special mention. Many construction lawyers regard Toronto’s Commercial List either as terra incognita at best or hostile terrain at worse. When I started, however, there were also excellent lawyers who practiced both construction law and insolvency law because “some contractors go broke”. We need more of these lawyers in our section today, not just as guest speakers at our programs.

12.      Finally, never stop learning. We are not just a profession but a learned profession. This is both a moral and professional obligation. Our legal system is an ever-evolving landscape where surprises (pleasant and otherwise) occur constantly. This also applies to your personal life. See paragraph 2 above.

My last point may seem strange, coming from a lawyer on the cusp of retirement. My retirement, however, is from day-to-day practice, not from my intellectual interests, which include my practice areas, especially construction law. By virtue of 50 years of membership I am now a life member of the Canadian Bar Association, the Ontario Bar Association, and the Toronto Lawyers Association. I will continue to receive (and read!) the same blogs and articles that interest me. I also intend to expand my legal writing, which atrophied over the past two decades due to the pressures of my practice. If they will have me, I will continue to present at CPD programs. I am not leaving the law, only the care and management of cases; otherwise, in the famous words of a movie actor: “I’ll be back”.

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