Who still thinks like a lawyer
I’ve been a master for just over a year. Here are 10 tips from the perspective of a rookie master who still thinks like a lawyer.
First, the usual caveat: my observations are my own and do not necessarily reflect the views of my fellow masters or other members of the court.
1. Beware binder bloat. Affidavits are often too long, containing too many exhibits. Much time and effort goes into preparing the affidavits (not to mention your legal assistant’s time spent photocopying). These voluminous materials all go into the application record (the binder). We often see three-inch binders or worse for a 45-minute application. It’s difficult to tell how much of the material is worth reading in advance of the application. Consider trimming the affidavits and putting more time into preparing the legal basis of the notice of application or response. This brings me to the next tip.
2. The “legal basis” set out in the notice of application and response must be adequate: a cursory listing of the Rules or statute is inadequate. The only time you might get away with a barebones legal basis is when you’re sure the application will be unopposed. If you’re not sure, you must set out the legal principles that apply to your application and how the law applies to the facts. Put as much thought and effort into the legal basis section as you do in preparing the affidavits. Judges and masters are placed in a difficult position faced with inadequate materials: should we adjourn it or muddle through? If you think drafting a proper legal basis is too much work or your client might not want to pay for you to do a proper job, think again.
The following cases (cautionary tales) are required reading for any lawyer appearing in family or civil Chambers:
- Zecher v. Josh 2011 BCSC 311
- Dupre v. Patterson 2013 BCSC 1561
- Yake v. Chamberlain 2014 BCSC 1582
3. Maintain your equilibrium. Convey reason before passion. Do your part to lower the emotional temperature in the courtroom. Avoid taking extreme positions. Choose your battles carefully. Every lawyer has had clients who are difficult. Separate yourself from your client. Explain to your client that the golden rule applies and you will extend courtesies to the other side if you can. If your client is really getting to you, consider referring the client on. If you and your colleague on the other side of the file are not getting along to the point that it’s affecting how well the clients are being served, consider asking another lawyer in your firm to take conduct of the file for a while.
4. Know master’s jurisdiction better than I do. If I ask you, “does a master have jurisdiction to hear this application?” know that “I think so” or “I’m in your Honour’s hands” is not the right answer. A master does not have inherent jurisdiction. Unless you want your application bounced, don’t put that in your legal basis. Please remember that it is not the registry staff’s responsibility to put your application on the right Chambers list: it’s yours. You don’t want to have to explain to your client that their application didn’t get heard today because you were in the wrong courtroom.
Explain to your client what a master is and what an interim order is. Check out Practice Direction 42.
5. At Judicial Case Conferences (“JCC”), assume there will be a successful outcome and prepare yourself and your client for success. Success means resolution. Explain to your client that your advocacy at a JCC is different from your advocacy at trial: you are there to advocate for settlement. Modelling flexibility and open-mindedness helps your clients to be flexible and open-minded themselves. I will be engaging directly with your clients at the JCC. Help them in advance to be prepared to speak for themselves honestly and respectfully.
6. Get used to dealing with self-represented litigants (“SRL”) — they’re not going away. Consider having a case planning conference (“CPC”). A CPC can be very useful in sorting out responsibilities and timelines. Being informal, it can help the SRL understand the process without being on the receiving end of a Chambers application. Don’t assume that a SRL will lose an application just because there’s a lawyer (you) on the other side.
7. Unbundled legal services can work: for you, your client and for the court. I have heard stories from newly self-represented litigants who are stuck going to court alone about the eye-watering legal fees they incurred before the retainer ran out (and their line of credit maxed out). Think about helping your client with one or more of the following: drafting pleadings and affidavits, navigating the self-help resources and preparing for court. There are resources out there to help you set up a tightly-worded retainer agreement.
8. Give accurate time estimates. Yes, I know this is old hat. Everything you’ve ever heard or experienced about time estimates is true. Take as much time as you need to make your submissions, but no more than that. You can’t solve a time estimate problem by galloping through your submissions and leaving the three-inch binder with me to read.
9. Use your common sense. Know when a personal or social problem is presenting as a legal problem and offer your client a practical solution. Offer the court a practical solution too! It’s never too late to settle.
10. Be humble in victory and gracious in defeat. This one is self-explanatory.
Sandra Harper, Master of the Supreme Court of British Columbia. A master presides in civil chambers and registrar hearings and makes decisions about pre-trial motions and procedural orders.