Learning from the US & Vice Versa

Jeffrey Leon, a partner at Bennett Jones LLP in Toronto, has just completed a one-year term as only the second Canadian president of the American College of Trial Lawyers (ACTL).

His tenure saw him travel some 250,000 kilometres to visit 45 states and nine provinces, affording him a unique insight into the mindset and practices of lawyers on both sides of the border.

“What I tried to do was learn about the legal and corporate culture that exists in different regions,” Leon said. “Internally, one of my goals was to weave Canada into the fabric of the college, partly by ensuring that Canadians are now serving on all of the ACTL’s committees.”

The ACTL recently honoured a former Canadian chief justice by establishing the Beverley McLachlin Access to Justice Award, which recognizes judges or lawyers in the U.S. or Canada who have played an exceptional role in creating and promoting access to justice.

In September, McLachlin presented the inaugural award to Jonathan Lippman, chief judge, New York Court of Appeals (Ret.) at the ACTL’s 2019 Annual Meeting, held in Vancouver.

What was apparent throughout Leon’s presidency and travels was that Americans inquired and cared about how Canadians viewed them.

“And in the current political climate, Americans seem to care even more than usual how they’re perceived by Canadians,” Leon said.

Which is not to say that U.S. lawyers’ understanding of the Canadian legal process is uniform across the country.

“The U.S. lawyers who have been involved in cross-border litigation are the ones who have the most knowledge about how our system works,” Leon said. “Others have very little such knowledge and understanding.”

Many U.S. lawyers, working in a system where jury trials are the default even in complex commercial cases, find it hard to understand why Canada doesn’t have more jury trials.

Still, the historic connection between the two countries and the democratic principles and culture they share means that the legal systems face similar problems, including judicial independence, the high cost of the trial process, the difficulty of getting cases to trial and encouraging civility in the litigation process.

“We all share principles of promoting the rule of law, high ethical standards, professionalism and collegiality,” Leon notes. “There’s also the growing decrease in opportunities for young lawyers to gain experience in court and the need for law firms, senior lawyers and judges to mentor them.”

The upshot is that there are many ways in which Canada and the U.S. can draw on each other to the advantage of both systems.

By way of example, Leon points to the use of visual aids in the U.S.

“While we obviously use visual aids in Canada, American trial lawyers can be years ahead of us on that score — largely because they are used to dealing with juries,” Leon said. “I’ve been very impressed by the effectiveness of using such aids on a regular basis.”

Leon also believes there are lessons to be learned from certain aspects of discovery procedure in the U.S.

“Some examples are doing away with refusals and answering questions subject to objection,” he said.

Americans, for their part, might also consider adopting some Canadian practices.

“U.S. trial lawyers should consider whether the expensive process of deposing experts in advance of trial is worth the cost, compared to our process of exchanging detailed expert reports and in some cases, requiring experts to identify issues in common and issues where they differ,” Leon said.

Mentoring is another area in which the Americans may be a step ahead.

“The U.S. has developed some different approaches to mentoring,” Leon said. “Some courts, for example, have taken on the concern about young trial lawyers not getting enough opportunities to speak in court.”

Indeed, several U.S. courts allow oral argument on motions when they might not otherwise allow it if the argument will be made by a younger trial lawyer who has been involved in the case.

“I think we can learn from that in encouraging our judiciary and our senior trial lawyers to create opportunities for young advocates,” Leon said.

The U.S., it seems, is also further ahead when it comes to diversity initiatives.

“U.S. lawyers and law firms have had much more and broader experience in dealing with diversity issues than we have had,” Leon explains. “They have adopted more visible and concrete ways to promote diversity.”

The overreaching reality, however, is that more and more litigation is traversing the border.

“That’s why it’s important to continue to promote cross-border knowledge and relationships,” Leon said.

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