S1E2: The Usual Things (Brian Cameron Pt. 1)

Oatley Vigmond Partner Brian Cameron delivers an in-studio interview that touches on a wide range of topics including his previous life as a travelling rockstar, making the choice to pursue a law career, the similar skillsets shared by lawyers and stand-up comedians, his process when preparing for a trial, becoming “the old dude in the room”, revisiting memorable case-related anecdotes, and much more. The remainder of Brian’s interview will air at the beginning of next week’s episode. The material and content provided on "Exhibit Eh": The Oatley Vigmond Podcast is for general information purposes only and does not constitute legal advice. 

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Speaker 1 0:10

[inaudible] .

Speaker 2 0:11

All right . Welcome into episode two of exhibit a, the Oatley BigMan podcast. Uh, as you learned last week, we are Canada's personal injury podcast and exhibit a is the play on words E H I'm very pleased to announce or to to introduce episode two, which has a, a wide ranging interview with Brian Cameron . He's a partner at Oli vague men and

Speaker 3 0:34

we touched on a whole bunch of different topics. Charles, what were some of the highlights that you remember? Um , you'll get to first meet and learn more about Brian Cameron , who's led a very interesting and exciting life if I may and for all the law students or , uh, maybe lawyer hopefuls out there, you'll learn about Brian Cameron's number one tip to getting hired.

Speaker 2 0:57

Yeah , absolutely. All right, so without further ado, we are pleased to present to you the interview that we did with Brian and I hope you enjoy it today. We are lucky to be joined by special guests, Brian Cameron. Brian completed his LLB at Western university and he was called to the bar in 2001 in 1999 he joined Oli BigMan and he became a partner in 2008 due to the level of care and quality of service that Brian provides is seriously injured clients. He was named outstanding young lawyer by his peers in the Ontario trial lawyers association. In May, 2008 Brian has acted as co-counsel with James BigMan on several cases at the appellate level that have resulted in significant gains or plaintiffs involved in motor vehicle collisions in Ontario. Brian has been an invited speaker at conferences involving the advancement of personal injury law. Brian speaks to healthcare professionals about the changing nature of insurance in Ontario. Brian is a co editor for the outline notes , uh , the litigator and on other publications that are related to those. So Brian , you had quite the unusual course to arrive at where you are now as a personal injury lawyer. Don't leave big men. You are the only lawyer in our office without a high school diploma. You were in a rock band called private heart. And it wasn't until you were 29 years old that you went to the university of Western law school. Can you tell us a little bit about your backstory here? Fall. That's true. And before I get into that exhibit A's , the name of this thing that's right now which one of you two creative geniuses came up with that? That's pretty good. We have a marketing person. Oh , do we have a marketing? We had to go to marketing for exhibit a. yeah, that's a, that's a focus group skill tested a battle tested name. Excellent. Uh, exhibit a as an E H. O that's very Canadian for all your listeners out there. So let me address one thing first and all that. Uh, the having a high school

Speaker 4 3:00

diploma , um, it's kind of weird. I do have a law degree, however, that's reassuring . Yeah. Yeah. Um, what happened was when I was a 14 or me 15, I was playing guitar a lot in clubs and I was playing late and I was touring with friends first. I did a a stint, a touring with people doing a sound and some lighting, some older friends of mine that had played in band. I did that when I was maybe 15. It's a long time ago. I'm not sure on all the dates. Um, so I ended up dropping out of high school. I think I have 14 high school credits and most of those were marks that were abysmal in any event because I didn't care. I got really good math marks. Everything else. I barely passed if I passed it all, if I even showed up. So I did that for years. I played guitar professionally for about 10 years, give or take and uh, that was touring all over the country. It's basically like, if you could imagine a frat party that goes on for 10 years, that's kinda how it is. Paddocks your life. Yeah, pretty much. I would travel in a van with my best friends who are still my best friends to this day. The singer and guitar player are the only people that I, I hang out with on any regular basis. And , uh , they've been my best friends for in excess of 30 years. Now. Are they saw professional musicians or a one? One is, he does movie scores and he teaches guitar and does recording for people, that sort of thing. The other one, the singer Chris, he plays in a band, like on the weekends, a couple, actually three different bands, I think, and is mostly an it guy for a , some sort of medical , uh , medical health clinic or something in the city. I'm not really sure where it is, but, but he does that. And , uh, we've stayed in touch over the years, but we spent those 10 years just, you get to hang out with your best friends and drink and have zero responsibilities except for perhaps a water , uh , two sets a night. And , uh , I'd even have a driver's license till I was 27 years old because I didn't have to drive. And so when that came to an end, it sort of came to an end slowly because the recession around , uh , uh, now I want to say 92, 93, 94 in there, a lot of rock clubs started to close because we used to be able to play and did six, seven nights a week. We could do that for six months at a time if we wanted to. There was always places to work. There was tours out West, out East. I did a few of those. Uh , several us States. I don't remember how many, cause I did drink a lot at the time and I didn't have to drive, so I didn't care where I was. And uh, so did that for a long time. And uh, then when I was about 27, 28, I decided, well, yeah , I want to go back to school because when you're doing that at 21 , uh , it's fun. Yeah . When you get to 28, 27, no driver's license. I was not homeless, but I didn't really have a home. Right . I mean , wasn't sleeping in the streets or any anything like that, but didn't really have a whole roots set up anywhere? No, not really. Um, you know, it's tough for me. My parents home, they were alive at the time, but I didn't go there much. Uh, you know, I would see them on , uh , you know, vacations and holidays and stuff. Uh , because we were working a lot, you know, then I, we started to play less and I had more time to think about what I wanted to do. Um, up to that point. It was a lot of fun, but like I said, it , it really was. I don't tell many stories of from being on the road because nobody would believe it. Um, now you've got to tell us why you've got a captive audience. I don't think I can on this podcast. Uh , it's kinda like anything you could imagine. It's a just difference of scale. Uh, perhaps , uh, you know, somebody you might call a rock star, which we were not , uh , it's only a difference in scale. It's the same nonsense. You're doing drugs a lot. You're drinking a lot and there's women everywhere. Yeah. So that's kinda what it's like to grow up. So when you're 23, that's fine. Um, when you get to be 28 and I had quit drinking the last couple of years because I just woke up one day and decided, okay, either I'm going to stop or I'm going to die. Wow. Um , not bad. And I wasn't diagnosed health problems in , I just kind of went, eh , road . Yeah. This is not a good road. I can't do this at 35 or 40. I can do this at 26 and then I woke up one morning. Andy will appreciate this story. We used to go to a coffee there , a sound guy and he's a drummer as well. Yeah. So Andy, you understand , we'll understand this. When I, when I tell him the story and I think I've told Andy this story, we used to play this club in thunder Bay that had a great in house production, the PA and everything was great. It was very big. It was a fun club to play to the called . It was called the in Towner and it was a , the place we did our last show in 1996 we farewell to her , well just farewell show. We had already broken up for about six months and we went up there in 1996 that was year . I went to law school in September and we went up in July, I think it was or perhaps June and played one final two week stint just as a goodbye and to hang out with your friends and that sort of thing. But years before in that club, we used to get there in the Sunday night and there was a band that would be there from the previous week and we would get to watch them and we'd be there and I would always get in a fight with our sound guy. Go that guy mixed drums way better than you did. Cause I hated the way our sound guy mixed drums. And he would always tell me, he goes, knock , you were loaded. What do you know? So I got there in the one Sunday night and I decided, you know what? I'm not going to drink tonight cause I know we're going to have this fight tomorrow. We do all the time. And when he says you were loaded, I'm going to say no, no, I was stone cold sober and your drum mix stinks. However, I got up the next day and I thought I feel pretty good. I kind of like this a little better than most days. I'm getting up. I wasn't dehydrated, I wasn't staggering around the place trying to figure out where I left my shoes. Uh, and then I decided I'm done. I just, I remember having that thought. I don't remember why. Uh, I had not been intoxicated since. Well I did. I have had the odd sip of scotch. I do that every six months. I'll have a scotch. I'm not anti-alcohol but I was done after that point. And then that's by that point I had already gone to Lori AA for two years consecutive like through the summers and everything starting about in 1994 or maybe it was the winter, 95 term, whatever it was. And I, I went in as a mature student cause I didn't have a high school diploma and they'll let anybody in. Basically as a mature student you can take a couple of classes, like 40% of the caseload or class load at least in 94. It worked this way. I have no idea how it works now. And uh, I got very good marks. I had basically a perfect GPA wow . Over two years. And so I got into, into law school after that. So not only do I not have a high school diploma, I don't have an undergrad either because my only goal in , I took philosophy and political science and things like that. Things I liked, but I only did it to get into law school. I had no interest in, I don't even know what you'd do with a political science degree. It seems completely useless to me. But uh, so any potential clients listen to you that have a political science degree? Uh , your income loss is not going to be significant. And I need defense lawyers at your mouth . Yeah, you can ignore that part and do not , I don't think this is admissible. Anyway, so I did that and uh , I applied the first year after my first year at [inaudible] , uh, to various law schools at the time. It didn't work. Like I understand it does now where you put in one application that goes everywhere. Sure. You had to pick, I think I applied to Western in Windsor and I didn't get, I wasn't expecting the first year to get in and I didn't. And then I kept going , uh, to Lori and I did a bit of tutoring for a lot of math challenge people. I did that and uh, finished the second year and I had the same grade point and then I got in after that. So I, I didn't want to finish the greet degree. I remember one of my professors convincing or trying to convince me to finish the degree and I thought, Hmm , you know, I like the education, I love learning things, but uh, you know , my point is I'm already 28 at the time and I want to be a lawyer. Right . This is the only reason for going through this exercise. Otherwise I had to do as you know. So when you first applied to, and you were at Laurie , what was it about law that drew you? Um, one of my earliest childhood memories is watching Perry Mason on the coach with my mother in the early seventies would have been reruns by that point. And I it , there are nights I can remember getting up and I couldn't sleep, but I go and find my mom and I would sit on the couch with my mother and watch Perry Mason. I always thought it was kind of cool, kind of seemed to me like lawyers ran the world. So I figured, yeah, I want to be part of that group. I always wanted to, and I always found it interesting. I liked the mental challenge of it. I didn't want to do anything that , uh, I thought it was boring. I mean, the fact you can make a good living at it was kind of a bonus for me, but I just wanted to do something that, you know , had some mental challenges. It's a , you know, it could have been that, it could have been a physics of some sort or something like that. Right . But , uh, I see more suited to , to doing law. I mean I had some of the skill sets already. Uh , I'm not talking when I was a young child, but when after spending, at least at the time, a third of my adult life on stage in front of people and learning how to present things and learning how to structure things, I would do it in music before. And now I do it with words and argument, but it's a similar skillset. And plus I always enjoyed it. I always thought it was , uh , was interesting. I would read about , uh , legal things and , uh , a lot of constitutional law even before I went to law school. I just found it interesting. Cool.

Speaker 2 12:39

Yeah. It's interesting that you said that in terms of being on stage. Cause I remember when I first started at the firm , uh , you had recently gone to go see Jim Jeffries , a comedian, and your takeaway was that was a blast. And you laughed her head off for the entire show. But you learn , you know, his stage presence and his, the way that he , um, you know, intends to prepare his show so that he leads from one thing to the next and everything builds and references back. So you took from that, you know, this is how I could deliver, you know, my opening statement or my closing statement or how I would prepare my cross examination. So it's funny how everything kind of interrelates.

Speaker 4 13:16

Well it does. In terms of the skill set for, I watch a lot of standup comedy and listened to a lot because again, the material is obviously not of any use to us in terms of what they're talking about and that part really doesn't matter. But the skill set is in the presentation and in telling a story and doing things like callbacks to prior jokes and uh, the way learning how people will structure it so they can speak for 90 minutes without a single note. Now, a lot of it's free form and what they have in their heads are, and I try to do this when I'm doing openings, is a , I don't write it out full form, I just write out my beats. That's a term I learned from listening to standup comics being interviewed. And that's just what's the point. You want to make all of all of this and then talk around it. You know it , uh, you don't have to write out every phrase, just write out your beats right now. You've got your order in your head. And so I take a lot of , it's more inspiration than anything else. Watching somebody who is so good at that, whether or not the subject matter is something you like or not, but they're so good at telling a story and you can pick up little bits and pieces, perhaps their mannerisms, the way they, the way they change the inflection in their voice. And also understanding this silence is fine. You don't need to have an almond in awe at every spot. So hopefully when Andy listens to this back again, there aren't too many ums or AHS, but I don't think there will, and I learned that over the years of think about what you want to say and go ahead with it. Even if it's at some point, if you forget where you are, just stop and say, I forgot I am. Let's go back to where we were and we'll catch everybody up. We'll, we'll catch up together. Where would you say that that would be in a trial? You would say that. Sure , there's a lot better than, well look, it's not a , it's not the best outcome. Of course you don't ever want to do that, but it's a lot better than standing up there looking disorganized and ums and AHS as you go through your notes trying to figure out where you are, just say it and move on. Yeah, that's, I mean Charles and I are as younger lawyers. I think that's a huge point to be comfortable with. The silence is , and it's okay to stand there and be comfortable in that silence and not say I'm an I and I for one, I really struggle with that. So it's something that I'm actively working on as I prepare, you know, mediation openings or hopefully one day to deliver an opening at a trial. Yeah. So let's , uh , carry on, on that note, I understand that you're currently preparing for trial. Yeah. So what is the first thing that you do when you, you've got a case and you're , you know, say you're six months out or you're three months out, what is the first thing that you do when you start to prepare for trial? Well, I'm not going to start preparing that soon, but getting in closer to it. Um, I'll just go back to the beginning and reread everything, the raw stuff. I might read a mediation or a pretrial memo to give me a , some greater context. And then I go back and I read the transcripts and I read the clinical notes and I read the expert reports, whatever else happens to be in there. I make sure I understand what all the photos are depicting and what it means and , and I have a good grasp on it. And then the next thing I do is write the opening because that gives me an idea of what I, where are the holes I need to fill in in the case. Um, I map it all out again with the opening. It's not a , a written document that might make a lot of sense to other people reading it. It's a bunch of fragments and sentences and half sentences and bullet points. It's just my beats and then I, you know , put in the photos and whatever exhibits I want. So I see the order and once I'm done that, then I sort of step back and okay, where am I going to fill in the evidence that leads me to all the witnesses. And that process also helps me decide who I'm calling, who I'm not calling, what are the key things I need to get out of the plaintiff other than the obvious and what do I have to address. Are you putting that in charts of any kind or is that all sort of like mental notes that you're just making for yourself as you're going through this process? In terms of the opening? Well , uh , making notes of, you know, maybe key things from clinical notes and records or you know, certain deep monster of evidence you want to use. Are you putting that in a chart anywhere or no, I don't do that. In my initial review. I, I've got a fairly good memory , uh, shockingly enough. Um, for law, for nothing else it would seem, but the first review is to give me a feel of it. Right. Um , the one I'm doing now, I didn't make any notes, I just read everything. I may have highlighted a few things as you know, we can do in prime effect and then if I have to go, I'm not , I, I've got to go back to this again when I'm writing the part about surveillance for example, I'll go back to that again. So a highlight as I'm going through, but I tend not to take notes. I'm really just trying to get an overall feel for what the whole case is about. What, because most cases are, you could summarize pretty quickly. It's a slip and fall. The guy had serious premorbid issues in the impairment arising out of it is not that bad. Now I've got an idea I got to fill in the blanks. That's not obviously my whole case, but it gives me an idea of where I'm going. Is this when you're starting to develop the theme of your case as well? Yeah. Yeah. I know it is. It's when you're starting to think about if my daughter who's 23 asks me what the case is about, what would I tell her? That's generally my theme or anybody, anybody. I used to use mother, but my mother's past , so I gotta use somebody else now. But when I understand it well enough that I can say in 25 seconds of speaking what the case is about and encapsulate that, then I understand it. Until then I don't. And , and for , for listeners who may not be as familiar with jury trials, why do you think that's important to kind of distilling it into simple terms? Because if you don't, if it doesn't fit, you must acquit. That's why. Because you both are, how old are you? A 30, 31 30. So you were about six years old when that happened. And you know exactly what I'm talking about. And that's not because you're lawyers, it's because that was such a great theme that you remember that 25 years ago and he was acquitted. And for anyone who is younger than 30 or 31, that's the OJ Simpson trial. They can just Google it, they'll be fine. Johnny Cochran, Johnnie Cochran. Um, yeah. And the point is not obviously to , uh , he was obviously guilty, but that's not the point. The point is that , that's why a theme is so important. And now coming up with something that is pithy like that and rhymes rarely happens, but giving people an idea of what the case is about in a sentence. So hopefully a juror goes home and tells their suppose what's the case you've got called on jury duty. You as he couldn't get out of it. Well, it's about, and that's what you want them to repeat. Right ? Right. And so are you using that theme in your opening? You're calling back to that at every opportunity that you can? Not a lot. I don't like to call back to a lot because I don't also want it to become a punchline. Um, so how do you reconcile those two things? On one hand you have, if it don't fit, you must acquit. That's a punchline in my mind, except so well, we have the benefit of hindsight here, right? Um, it's been almost 30 years or no, 26, 27 years. It's become a punchline since go back and look at the originals. I think you might find it was uttered four or five times in the closing. Is that all? Yeah, it was in Johnnie Cochran's closing, closing, and he did say it, but prior to that, I don't think it was ever said, I don't think it was said in the opening because as I understand the story, somebody came up with it during the course of the crime. It was a mid trial strategy. Yeah . Have you seen the five-part ESPN series on that? No. Oh my God. It's amazing. It's called, I think it's made in America, the OJ Simpson series. It's unbelievable. It's all the live footage that was actually taken during the trial with justice. Edo I think was the trial judge and like justice Lance ITO . See , I'm old enough that I watched it live on CNN as it was happening right from the Bronco chase all the way. I remember Y ear . It's weird. It's, it's not like it's a candidate assassination. But I was working the night of the Bronco chase. I used to do sound at a club down in Tillsonburg when I was , uh , I was not in law school at the time. I was going to Laurie undergrad and uh, I was working and then I watched the whole thing. Uh , you know, when I wasn't in class I'd be watching on CNN. Cool . Because there's a lot of stuff in that trial that is just a perfect demonstration of outstanding trialers regardless of what you think about that part doesn't matter. But Barry Scheck who did the cross examination of most of the science people is a brilliant lawyer. He tore apart these people to the point I would get calls from friends of mine who have no connection with the law and go , is this witness really that dumb or is that guy that good? And then going well, it's kind of both. Right. And the closings, I mean, I'm say what you will about a Johnny Cochran, that guy who was an outstanding lawyer. I mean in the seventies and eighties that guy was the King of tort law in Los Angeles suing the police. I mean, he was a , he was the definition of a heavy hitter and a criminal was something that he did on the side and that's how good he was. He could step in on a trial like this. And F Lee Baily, another legend. Um, Barry Scheck not as much as legend, but he certainly is now, but at the time, I mean those three criminal defense lawyers that were all representing OJ in the trial. Yeah. And there were more too , but those were the prominent ones. And uh , if you want to get an idea when it was a great civics lesson on how trials work, because it did work like that. And again, I'm not advocating the outcome, I don't care one way or the other. Sure. But it's a how it was managed and how they ran that trial and how good the cross examinations were . Um , I mean, it's a lesson for anybody who wants to do this. You watched Johnny Cochran do an opening and a closing, right. It doesn't get a lot better than that. F Lee Baily cross-examining Barry Scheck cross examiner , Johnny Cochran. I mean , they were called the dream team or something while they were at the time. But that's a media thing. I mean, they were just good lawyers. They were real lawyers. They got a little bit of what they had in my view, has been tarnished. Bob Kardashians was a fine Los Angeles, I wouldn't call him a trial lawyer, but he was a prominent figure in the legal circles out there. And one of the biggest legal markets in the U S he was one of the top dogs and now all eight people remember is because of his idiot daughters. Right. So they got tarnished a bit because of that. And so did Johnnie Cochran's reputation some quarters for sure. I mean that was controversial, but they took it on. Picking up on what you said about a cross examination of witnesses and you said that it's not often that you'll see a , a witness get totally eviscerated like that in a normal trial. Um, how do you prepare witnesses when you're preparing for a trial that you're , you're going to take? It really depends. Well, where you start is understanding everything in the D's going to say and knowing it cold and where it is. You can't begin to do that now. There will be surprises because they may some say something at trial. You don't expect hard to plan for that. But the way to plan for that is to know everything that person, you know, defense expert. For example, you have to know the report inside and out . You have to know in your head the page reference where they said that the person's shoulder was fine, but the back was uh , uh , not , uh , working well or their premorbid condition was ABC and D, whatever it happens to be, you have to know where it is without going. You can't be leafing through the report in the middle of a cross. Where did you say that doctor? That's where it starts now, where it ends up hard to know because it depends on the witness. Uh , the last time I had an extensive cross examination of a medical witness was in a trial Jim and I did with a brain injured fellow who he was 51 at the time. I think he had the intellect of, of five-year-old basically. Oh. And it was a serious brain injury, no liability issues. He was a passenger. It never should've went to trial, but it did. Okay . And their defense doctor, a doctor, a good doctor, don't normally see him or , or he isn't. One of those people who always struck me as being a defense hack or a plaintiff sack for that matter. It just didn't seem partisan. And he got given material on this and basically their theory of the case was our guy was an alcoholic before and he was, he was one of those guys you would run into who always had the beer in his hand, no matter what time of day it was, always had the beer in his hand, but he was pretty functional. Like his wife worked. He took care of the kids. And what doc didn't know, for example, was one, his daughter, RCMP officer and his son going back to 2010 but he did the red mitten campaign for the Vancouver Olympics worldwide. Uh, uh , media marketing. He was the head of that. Is that right? Pretty successful kids. And he was, the guy took care of him. The doctor didn't know that. My guy's next door neighbor was a , an NP who had won the Canadian version of the medal of honor. I can't remember what it is. And uh, he would let Larry babysit his kids and their theory of the case was he was an alcoholic. He needed a 24 hour care anyway, pretty high functioning. He's pretty high functioning. We used some evidence in, the problem was he didn't know about it. And so I got to go through every witness with him about 15 of them and uh, just make him look completely ridiculous because he didn't know all this stuff. And I would go back every time to his conclusion. But yet you think he was an alcoholic before and , and could take care of himself. Well, sir, do you think a medal of honor recipient, let, let them take care of a two year old if he was a problem, they're pretty observant, aren't they? And the point of that story is you , you have to, there's no such thing as here's the way to prepare for a cross examination, at least not that I've ever learned. I don't know how to do that other than figure out what's the theme of your case. Because the most important thing you're doing is not to get them to change their opinion. Unlikely that's going to happen. Because even in this case where I destroyed the man, he didn't change his opinion. He couldn't. I got to tell the story of the case through the questions. I don't care what the answers are, almost always, because if you start to debate an orthopedic surgeon on orthopedics, you're probably going to look like an idiot. It's not going to go well. But if you undermined his factual opinion , um , I'm not much for asking the question. Uh, you're getting paid to be here and you work for defense lawyers all the time. I think that's nonsense because the only people who aren't getting paid to be here are the jurors. I don't think that works. But if you can undermine their opinion or get them to make submissions that they really don't know something or that something is possible, that's almost as far as you're gonna get. But you're asking the question. You're hoping the jury listens to the question, not the answer. Uh , you don't really want to put yourself in a position where you're fighting over what is , uh , you know, some causation issue arising out of some orthopedic injury cause you're going to look silly I think most of the time, right? Unless you happen to be right and your expert tells, you know , this guy's totally wrong, but then I'm going to have the expert write me some questions. I don't know. I don't know the science . I only learn enough of what I need to know for that group of questions. And then I know nothing else about it. But I can make it sound for four minutes. Like I know what I'm talking about. And so what about, so that's how you prepare for a cross examination. How do you prepare your own witnesses, whether they're expert witnesses or healthcare providers who are treating witnesses? I give them as best I can, an idea of what I think they're going to be asked about and I try to get a sense of what their answer is going to be. That's about all you could do. I mean it's where there's more to it than that depending on what the issue is, but it's always the same process. I don't know how to answer it like with a specific witness. If it's the client I'm going to be reminding him about, and I do this before discoveries as well, reminding him about all the times he went to see a doctor, you were here on this stage , you complained to this and this date complained of this. I can't control what he's going to say but I can at least control that. He won't be surprised by it and I tried to do that with all the witnesses. Right . More just make sure they're not surprised than anything else then because obviously I can't tell people what to say. The evidence is what it is. I can tell them, look, you don't have to agree with the guy if you don't want it to or that or you know the person asking the questions, but it's really just preparing them in the sense of not being surprised and then addressing any particular issues that are in your case. If there's surveillance and go over it with them, show maybe even show it to them in the drag so they don't get crossed about it because there's a lot of stuff you can avoid cross-examination if you inoculate correctly at the beginning. That was going to be at my next question. So back to your back to your trial preparation. Overall, are you, when you're writing your opening, are you almost more mindful of the bad facts than you are a big good ones and you're, you're really making sure that you're finding a way to weave them in so that you are addressing them head on? I wouldn't say more, but certainly as much as, yeah , the bad facts will even be more harmful if you don't say them. I don't care what it is. It could be a minor back problem. The person at three years before, but they never went to visit a doctor in the three years up to your incident and perhaps they were working full time at a heavy job. But if I leave that out, it takes on a life of its own as opposed to saying, I expect you're going to hear that he went to the doctor three times in 2015 for a back problem. I also expect he's going to tell you that he never went back to the doctor for that and then, I can't argue it of course in the opening, but my next thought is probably going to be telling the jury about something heavy he did during that period. I'm going to let them go to the inference of, well , come back . Couldn't have been that big of a problem because he was doing these lifting weights or whatever it is the guy's doing a , the client's doing. I'm going to remind them about that and hopefully then the inference pops into their head. Well, it couldn't be that bad. I can go ahead now if I leave that out, even though it's a nothing. If I leave it out. The defense lawyer ? Well, let me tell you, Mr. Cameron told you all about this, but what he forgot to tell you was anything that follows that sentence in a defense lawyers opening is bad news. I don't care what it is, it's bad news. You may as well get it up out front because you're going to reserve what little credibility you may have. If you have a bad case with a lot of stuff, Oh, maybe they're not going to believe you. Maybe you're not, but you don't do it by leaving things out. Do you have any recent trial stories? All your preparation comes together and you finally get to go and you deliver your opening. You call that first witness? No. Usually what happens is I write the opening and then the defense or calls me and they settle. It drives me out of my mind. I have a , I don't know, it's just bad luck. It seems to happen after I'm done the opening . Um , and then I'll get the call. I mean, I'm kind of expecting it to happen for this one. It's supposed to start Monday, you know, judge being available in Toronto. It depending on that, you know, I'm negotiating a Mary Carter with one of them and uh , we'll see how that goes. They probably should end up, but it's a not a significant amount of money, but that's the biggest problem I have is we will get ready and then the client will pull , uh, you know, pull the ripcord or the defense herder . We'll call. And you know, the last two times the last sittings and this sitting now , uh, may of may of 19. I just finish the opening for a case I took over from Adam because he was trying a med mal case. And , uh , I , I'm not kidding when I say I finished the opening, I got a call from , uh , the defense lawyer the next morning and I was like, the opening was 135 pages. Now keep in mind the fonts a little bit bigger cause I'm old and I can't see that. Well , uh , but it was still a good deal of work. It was, it must've been 25 or 30 hours at work to get it all together because that was even worse because that's was not my case. I didn't even know it at all til I picked it up , so I'd read , read everything, so it was awful. So that's the biggest, you know, it just drives me crazy. You get ready for them. But then again, if you get a good number for a client the end of the day, that's good. But , uh , I'd rather go ahead. At least in many of them. Some of them you don't want to, but um, you know, in many of them I do. Yeah. So outside of trial weather , what are your favorite mitigation events? You mean the , the social kind of events or what are you talking about? No, I meant so, I mean 99 or 98% of our files don't end up in a trial. Oh, I see what you're saying. So outside of that, what are you Mo , you know, is it a mediation? Is it a pretrial, is a discovery with a difficult defendant and what are you most fired up about? For lack of a better term, probably the mediations, I mean, that's the chance to,

Speaker 5 33:50

yeah .

Speaker 4 33:51

You know, it's the live version of game theory. There's an opening a , there's dealing with problems as they arise on the fly. I mean, that's the most fun in terms of , uh, the litigation process of , you know, occasionally you get an interesting motion, you can argue summary judgment motion or something like that. Uh, but I would say mediations and pretrials because it's where you're doing the non trial lawyer or where you're displaying the non trial or skills. It's where you do in the crocheting and trying to come up with a, with a good deal for your client. And one that's actually a good deal for the defendant to , because if they don't think it's a good deal, they're not going to do it. Right. So I think that's probably the one that's , uh , the most fun discoveries . Pretty rare you get one. It's actually fun with the defendant. It's fairly straightforward . Normally, and I, I've got to touch the EDD. I don't like sitting through long discoveries. I get bored because I get these repetitive, nonsensical questions, but they're just just enough that I can object to them because when you read back, you know the transcript later, it's going to look fine in paper, but it's so annoying to sit in the room, so I don't care for that too much. But you've got a , um, I don't know . I wouldn't say like a reputation, but when you go to mediation, I've heard that you'd like to keep it pithy and short and concise. Yes . Your openings, is there a reason why you do that or can you tell, tell us why you might want to keep it shorter than longer. The longer anybody has to argue about the point, the less likely they are. It is that they're right. That's just my general view of life. If I have to hear my daughter Golan about how much she wants something, I know it's nonsense. If you can't in a mediation setting, keeping in mind you've given them your brief, they know all about your lay witnesses, your expert. They know what the accountant says, they know all that. You , you have a chart of damages in a bigger case, I'm presuming they've read it. Maybe sometimes they don't. I don't know. I don't care if you can't summarize it in three minutes, you don't know your case well enough to really proceed. Just get to the point. You're not reviewing every lay witness. You might be saying you've read all the lay witnesses, they're all supportive. The jury is going to love these people. Say that as opposed to reviewing your six lay witnesses that the jury is going to love. They know what it is. Just get to the point. Keep it short. Uh, I don't think the defense lawyers , uh, really put much stock in time. That is, I could spend 40 minutes. I'm not sure I'd be any more, any more ahead that had I stopped speaking at three minutes. As long as I plan to speak three minutes. You can't just stop at three minutes. Of course we've gotten nowhere, but I tell people I started the outside . I go, look, I'm going to be brief. And occasionally if it's a mediator defense lawyer, I know while I might even make a joke of it and say, cliff timey , let's see me, see if I can get this done in under three minutes and let's get to this. And that. The great part about that, it usually prompts him to go shorter too , cause they don't want to ramble on . I don't want to sit there. It drives me nuts. Half of what they say is nonsense. And , uh , I got to sit there and pretend I'm typing so they don't, I don't care what they think I'm talking about. I tell the client, I mean, I tell the client this ahead of time, say, look, I'm not going to listen . I mean, I'm going to listen, but I'm going to make it look like I'm not listening. I'm going to type, I'm going to do emails, but I know what they're going to say already. And they're going to say, Oh, you're going to lose your house, blah, blah, blah. Here read the memo. It's all the same. I attended a mediation with Roger , uh , once and , uh, during the defendant , uh , lawyers opening, he was just looking down as Blackberry. I wasn't really sure if he was actually looking down at it or a strategy, but he certainly didn't look like it was paying attention. No, he wasn't. And I can tell this story because Rogers told it before in public, but he, him and Duranti were doing a trial years ago and Duranty at the time, Rob was, he was quite junior as well. And , uh , Rogers on, he was one of the first in one of the first people I have a Blackberry very early on and he's in trial on his Blackberry and he's not paying attention to all somebody being cross-examined. Rob's listening and Rob's not objecting or a , Roger's not objecting to something. And Rob thought, wow , you shouldn't be objecting. What are you doing? He doesn't think anything about it. And then there are a couple more questions. I don't know what the questions were, but, but finally, Rob leads over to Roger and he goes, you gotta, you gotta object, Roger, you gotta object. So Roger immediately just stands up and says, I object, your honor. And the judge says, well, object to what? And Roger goes, other usual things. And it was sustained. Like only Roger gets away with that because Roger had no idea what was going on. He didn't care. Rob was listening was fine. It didn't matter. And uh , you know, had Roger not told that story in public before, I wouldn't have told it. But it's a funny story. And uh , you know what happens? It looks sometimes he just a long time of listening and you lose track for a few minutes, especially with phones and it's hard to, you know, that's obviously not a recommended way, but if Roger only you can get away with that. Yes. Yeah . None of us are going to get away with that. The just next question or that judge mouth of I , I said that would've been, yeah . What does that mean? So I mean, that's a great segue to my next question, which is, you know, you're not a Roger Oatley , but you're certainly, you've been doing this a lot longer than Charles and I have. So do you remember what it was like to start out from a junior lawyer and to get to where you're at now and how has your practice evolved in the way that you think about your obligations to your clients and the bar overall? Well, I think my obligation is the client. I don't think about that any differently. I mean, I have more control over what's going to happen now in my, my interaction with the client is different. What I will say, it's a lot less now than it was before because I have younger lawyers that work with me that handled the day to day, just like you guys do for Robert Troy and it's like I did 15 years ago or whenever it was. I don't know how it, it doesn't feel any different to me. I mean, this sounds weird, but I don't feel any different than I did when I first started excepted . I have probably more confidence in what I'm doing and I don't have to look up the answers. I mean, I used to think it was really funny that BigMan didn't know how to use a quick law. We used at the time, I had no clue. And then I find myself, I don't know how to use Westlaw . So I don't know when that happened and I'm not quite sure when I became the , uh, the older one of the senior guys, I don't know how that happened, but I remember being in a CLE with you guys in and you know, most of the other associates were there and I think Karen was talking and I was sitting at the end. I was the only partner that was there. It just scheduling I guess. And it dawned on me about halfway through this, well wait a minute, I'm the old guidance cause I never had that before. No, cause I , I don't feel like the old guy, I feel like I don't feel any different than I did when I was 19. Right . I mean I understand. I look different. I mean I'm not delusional, but I don't feel any different. So I don't, I don't have any different sense of, I've never thought of myself as a senior lawyer and I still don't, I think I'm good at this, but I've never thought of myself. Like when I used to look at Roger and Jim, I used to see this big senior lawyer, you know, knows everything. That's what I would see from being a third year lawyer or an articling student or something. That's what I would see. But now I feel as I understand it factually, at least I'm in that role. I don't feel anything like that. My guess is they neither did they. However , uh, it just , uh, you guys will get this in about 15 years, right? Yeah. Cause then you're going to be the old dude and somebody else is going to be asking you if you know a question and a , you're going to have your own doubts in your mind that you're not going to share with them. You're just going to tell them this is, you think the best course and you will hope inside that it is. Wow. Yeah. I think I've experienced that in like a much smaller setting where I remember being in articling student and I would, you know , go speak to a senior associate about, you know, of course of action or it had a phrase, something, you know, you're arguing over undertakings and they would say, Oh, I would probably do it like this. And you'd say, wow , how are so confident? And just making that recommendation. You don't even know anything about the file or anything like that. But uh, now I'm in that boat where the Arland students are even, you know, more junior associates would come and ask me a question and there I am just giving answers like I've been doing it for, for decades already. But yeah, it's the same thing. It's just more issues. Like now I can, I can get ready for what I would call a straight ahead mediation, like a typical one in our office in about a half an hour because I know exactly what's going to happen. I've done hundreds of them. I know how it's going to go. I know the information I need at my fingertips. I, I've created myself a template for something called a one sheet that has all the information I need to look at in one glance. Like I don't have all these extensive notes. I just have, this is the one glance, I know the interest level or the interest rate. I know who the defense lawyers are in case I know a client names data that you crashed the media , you know, that sort of thing. The one, the rest is the same. It just changes for cases. And after you do it for years, you can be more, you don't have to spend as much time getting ready for this one because you've got the prep that you did in the previous 270 or whatever the number is.

Speaker 3 42:50

Okay. And don't forget to leave a comment and review us wherever you get your podcasts. Um, we have an account on Twitter at exhibit a, E H pod. Um, you can visit us on our website at [inaudible] dot com. Again, my name is Charles, my cohost, Harrison, signing off. See you next episode.