Advocacy-Matters-Winter-2022

ADVOCACY MATTERS
The Advocates’ Society
WINTER 2022

THE ADVOCATES’ SOCIETY
2022 END OF TERM
DINNER
Thursday, June 23, 2022
Guest Arrival: 5:30 pm | Dinner: 7:00 pm
Canadian Room at the Royal York Hotel,
100 Front St W, Toronto, ON, M5J 1E3
Black Tie | A member-only event

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CONTENTS
05
06
11
12
14
17
21
Chair Chat
Emily Lawrence, Paliare Roland Rosenberg Rothstein LLP
Catching up with Faisal Mirza:
Addressing systemic racism in
R. v. Morris and R. v. Anderson
Michelle Alton, Workplace Safety & Insurance Appeals Tribunal
Word to the Wise: Mentors at all Stages
Faren Bogach, Construct Legal
How to Mentor: It’s Not About You
Ben Kates, Law Society of Ontario
Panel On Women In Middle Years Of Practice –
Some Advice And Reflections
Ayesha Laldin, Department of Justice
Highlights from Women in Litigation
Compiled by Miranda Spence, Aird & Berlis LLP
Roundtable: Building Your Book of Business
Using Alternative Fee Structures
Compiled by Megan Keenberg, C.S., Van Kralingen & Keenberg LLP
Editor: Tamara Ramsey, Dale & Lessmann LLP
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
Advocacy Matters Editorial Team: Michelle Alton, Tribunal General Counsel, Daniel Baum, Langlois Avocats, Megan Keenberg, Van Kralingen &
Keenberg LLP, Ayesha Laldin, Department of Justice Canada, Ontario Regional Office, Zoe Oxaal, Department of Justice, Canada, Civil Litigation Section,
Miranda Spence, Aird & Berlis LLP, Christine Vanderschoot, Vanderschoot Family Law
3

CHOOSE FROM CANADA’S TOP
MEDIATORS AND ARBITRATORS
Members of the Canadian Academy of Distinguished Neutrals
Ronald M. Dash
Ron has over 45 years of
experience resolving a wide variety
of commercial, employment,
insurance, construction and real
estate matters as a mediator,
arbitrator, Master of the Superior
Court of Justice and litigator. He
has a well deserved reputation for
getting quickly to the heart of a
dispute.
W.A. Derry Millar
Derry has over 45 years of legal and
neutral experience. His expertise
includes commercial, aviation,
estates, environmental, insurance,
product liability and real estate
matters. He was elected as a Fellow
of the American College of Trial
Lawyers, is also a Fellow of the
Chartered Institute of Arbitrators.
Derry is a recipient of the Law
Society Medal and the Catzman
Award for Professionalism and
Civility.
2021-22
2021-22
READERS’
CHOICE
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CHAIR CHAT
Chair Chat
Emily Lawrence,
Paliare Roland Rosenberg Rothstein LLP
Welcome to 2022!
I don’t set New Year’s resolutions. But I do try to spend some time reflecting on the past year and
thinking about the year ahead. In 2021, I tried to keep my personal and professional objectives
small and concrete. 2021, for me, was about taking it day by day (pandemic wave by pandemic
wave), finding ways to be of service, and being compassionate to my family, colleagues, peers, clients,
and myself. Despite another worrisome wave of the pandemic, I am thinking bigger this winter.
I am excited and optimistic that we will make a shift back to in-office work life and in-person
gatherings this year. I can’t wait to share lunch with my colleagues, grab coffee with my mentees,
and chat with old friends in the robing room or the TAS event space. It will be a transition, and
perhaps a rocky one, but I am more than ready.
The pandemic propelled forward how we practise law using virtual tools – a small silver lining –
and required all of us to find new ways to deliver excellent service to our clients. Collectively, we
pivoted to virtual practice because we had to, but we now have an opportunity to assess what
aspects of virtual practice may serve us long-term. It’s also a chance to consider the business of
lawyering post-pandemic. To get you started, this issue features a thoughtful roundtable on thinking
outside the box about fee structures for clients. The pandemic has also laid bare inequities in
our justice system; I encourage you to read Michelle Alton’s interview of Faisal Mirza on the use of
sentencing reports in criminal proceedings and parole hearings.
Throughout the last two years, TAS has been a source of education, insight, and socialization for
me. I am proud of the work of the 10+ Standing Committee, and TAS as a whole, to continue to deliver
timely and insightful programming that has brought together advocates from across the country.
This Winter 2022 issue highlights some of those events, including an excellent program in which
junior lawyers spoke candidly about what they really want from their mentoring relationships, and a
debrief from one of TAS’s signature events, the Women in Litigation Symposium (Ontario).
Wishing you a warm and safe beginning of the year.
5

THE JUSTICE SYSTEM
Catching up with Faisal
Mirza: Addressing systemic
racism in R. v. Morris and
R. v. Anderson
Michelle Alton,
Workplace Safety & Insurance Appeals Tribunal
A previous article in Advocacy Matters highlighted the Ontario Sentencing and Parole Project (SPP)
along with one of its co-founders, Faisal Mirza. Recently, in R. v. Morris, the Court of Appeal for
Ontario considered one of the reports generated from the SPP. A few months before Morris was
released, the Nova Scotia Court of Appeal considered a similar type of report, Impact of Race and
Culture Assessments (IRCA), in R. v. Anderson. In this article, we talk to Faisal about the Morris and
Anderson decisions, as well as next steps as the justice system strives to address systemic racism.
In R. v. Anderson, 2021 NSCA 62, the Nova Scotia Court of Appeal considered IRCAs, noting its re-
6

sponsibility as an appellate court to equip judges
who are tasked with sentencing offenders of
African descent with the necessary tools to craft
fit sentences.
Mr. Anderson, an African Nova Scotian, had
received a conditional sentence of 2 years less a
day, followed by a probationary term of 2 years,
for firearm offences. At sentencing, the Crown
had sought a federal penitentiary term in the
range of 2 to 3 years. At the appeal, the Crown
changed its position and accepted that the conditional
sentence was a fit and proportionate
sentence. With the support of the intervenors,
the Crown asked for guidance in applying the
principles of sentencing to offenders who are of
African descent.
The Court of Appeal acknowledged in its decision
that certain groups in Canadian society are
disproportionality incarcerated, notably Indigenous
offenders and Black offenders. The Court
also strongly endorsed the use of IRCAs in sentencing
African Nova Scotian offenders.
In R. v. Morris, 2021 ONCA 680, the issue being
appealed was the sentence imposed for Mr.
Morris, a black man who had been sentenced
to 15 months plus 18 months’ probation for
gun-related charges, including possessing a
loaded prohibited/restricted handgun and carrying
a concealed weapon.
On appeal, the Crown argued that the sentence
was manifestly unfit and proposed a
sentence of 3 years. In particular, the Crown argued
that the trial judge had allowed his consideration
of the impact of overt and institutional
racism on Mr. Morris to overwhelm all other
considerations relevant to fashioning a sentence.
Several intervenors participated in the
appeal and, in general, the intervenors and Mr.
Morris argued that the trial judge had properly
admitted and considered evidence of overt and
institutional systemic anti-Black racism and its
negative impact on Mr. Morris.
The Court of Appeal allowed the appeal and varied
the sentence to 2 years less a day, followed
by probation on the terms imposed by the trial
judge. The sentence was permanently stayed.
In reaching this decision, the unanimous fivejudge
panel of the Court of Appeal acknowledged
that both overt and systemic anti-Black
racism is a reality in Canadian society. The
Court set out general principles to guide sentencing.
The Court was also complimentary of
a report prepared as part of the SPP which described
Mr. Morris’s history and circumstances.
The Court noted that these types of reports can
be of great assistance to a sentencing judge and
stated that they hope that the preparation of
these reports will be adequately funded and
will become a common feature of sentencing in
appropriate cases. 1
Question: Faisal, as a co-founder of the SPP,
and as counsel for Mr. Morris in his appeal,
what are your thoughts about the Court of
Appeal’s decision in Morris?
Answer: It’s a legal breakthrough in the struggle
against racial inequality in sentencing and a
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ecognition that all members of the justice system
should learn about the detrimental impact
of racism on essential parts of life, coupled with
a clear direction to sentencing judges to obtain
and consider this critical information when assessing
proportionality. It’s a moral and legal
imperative to address racism in a system in
which Black people are over-represented and
mistreated. This will help judges to make better-informed
sentencing decisions.
Question: You represented one of the intervenors,
the Criminal Lawyers’ Association,
in the Anderson appeal. How does the Morris
decision compare to the Anderson decision?
Answer: The decision in Anderson thoroughly
recognizes that the distinct experiences of Black
people must be better reflected in the sentencing
process and determination of outcomes. The
decision is fresh appellate guidance to bring the
law into harmony with a modern understanding
of the impact of racism so that judges can fairly
assess the context in which offences occur and
the degree of responsibility of certain offenders.
The ruling recognizes that a superior understanding
of an individual’s circumstances is necessary
to advance equal treatment.
The Morris decision recognizes that anti-Black
racism must be addressed, that sentencing is
better informed by an understanding of its detrimental
impact, and that Enhanced Pre-Sentence
Reports (or IRCAs, referring to their use
in Anderson) are an important tool to improve
outcomes. The Court of Appeal states that they
can be of great assistance to a sentencing judge
to assess the moral blameworthiness of an individual.
At the trial and the appeal, the Courts
found that this information supported the imposition
of a far lesser sentence than sought
by the prosecution. Even though the Court of
Appeal increased the sentence marginally, they
encouraged judges to give serious consideration
to a conditional sentence to be served in
the community in appropriate cases. The Court
commented that hopefully these types of reports
will be funded and become a common
feature of sentencing.
I hope so too. The SPP team will continue to
do everything we can to prepare thorough and
objective reports that educate. Our team is composed
of clinical social workers, scholars, and
lawyers who have considerable experience. We
are continuing to grow and improve every day
with the support of the community and our partners.
Inadequate pre-sentence reports and a lack
of understanding about the impact of racism is
a source of inequality in criminal law. We must
continue to find solutions to these problems.
Question: In August 2021, the federal government
announced that it would be investing
in measures to address systemic racism
in the criminal justice system, including
providing funding of $6.64 million over five
years, followed by $1.6 million in ongoing
funding, to support the implementation of
IRCAs in all provinces and territories. IRCAs
and the SPP are one part of the important
work that must be done to understand and
address systemic racism issues in the justice
system, particularly in the criminal context.
What do you think are the necessary next
steps? Where do we go from here?
Answer: There is a lot more to learn about racial
injustice. In my view, knowledge about the
sources and impact of inequality improves the
competency of lawyers and judges. It strengthens
the quality of advocacy and better informs
decisions. I will continue to support the progression
of core law school education, research, and
professional development in this area.
Note
1. The Court of Appeal also noted that with more experience in
preparing these reports, and additional guidance from the courts,
the reports will improve, including authors appreciating the need to
present an objective assessment while avoiding the appearance of
taking on the role of advocate for the offender.
8

The Honourable
Rosalie Silberman Abella –
A Life of Firsts
May 12 & 13, 2022
Ottawa
Online and In-person
The Advocates’ Society is proud to be supporting this special event celebrating
former Supreme Court Justice, The Hon. Rosalie Silberman Abella. Our Past
President, Guy J. Pratte, will be acting as Master of Ceremonies for the
Gala Dinner, and TAS will deliver a panel at the conference, entitled Justice
Abella & Women in the Legal Profession. This session will explore Justice
Abella’s trailblazing career and its specific significance for women in the legal
profession and features TAS President Deborah E. Palter, Thornton Grout
Finnigan LLP as Panel Chair and speakers The Hon. Justice Andromache
Karakatsanis, Supreme Court of Canada, Sana Halwani, Lenczner Slaght
LLP, The Hon. Justice Freda Steel, Manitoba Court of Appeal, Rosalie Jukier,
Professor and Associate Dean, Faculty of Law, McGill University, Linda
Rothstein, LSM, Paliare Roland Rosenberg Rothstein LLP, and Shantona
Chaudhury, Pape Chaudhury LLP.
Full conference details are available here.

MENTORING
Word to the Wise:
Mentors at all Stages
Faren Bogach, Construct Legal
The team was gearing up for a long hearing. We had been working for weeks to get everything
ready. I had been on the file from the beginning, and it was going to be the biggest hearing that I
had ever participated in. When the time came to decide who would examine and cross-examine
the witnesses, imposter syndrome kicked into high gear for me. I was about to tell the more senior
lawyer that they should take the lead on all the major witnesses.
I guess my fears were obvious. Someone pulled me aside and said: “You know the file best. You
have worked so hard on it over the years, and you can’t stop now. You need to examine those
witnesses. You can do it.”
I needed to hear that message. To have someone talk over the doubt in my mind and encourage
me to do something that I was ready and able to do. And like me, others need that the vote of
confidence and trust in the tougher times; the push to reach beyond a comfort zone.
Finally, the person who gave me that important message was a more junior lawyer on the file.
There seems to be an expectation that a mentor is someone more senior or more experienced,
but that isn’t always the case. Especially in these strange times when we are more isolated from
others, it is necessary look to everyone around us for advice and encouragement.
11

EVENT REPORT
How to Mentor:
It’s Not About You
Ben Kates, Law Society of Ontario
The opinions expressed are those of the author.
They do not reflect the opinions or views of the Law Society of Ontario.
This fall, the 10+ Standing Committee’s Mentorship Working Group made a candid admission:
we don’t have a clue what it’s like to practise as a junior lawyer during a pandemic and we have
a feeling we are somewhat ill-equipped to mentor them through it. So, we decided to go to the
source for advice.
12

• Build trust: The onus is on the mentor
to create the time and space required to
build a relationship that is authentic and
comfortable. This process can take time.
New lawyers are dealing with the self-consciousness
that comes with stepping into
a new setting. It can be intimidating for a
mentee to ask for a meeting or be transparent
about their needs. Mentors should
be sensitive to the mentee’s concern that
their candour may come back to hurt them
down the line and also be transparent
about any limits to the confidentiality of
their discussions.
On November 9, 2021, I acted as moderator
of our fall event, “It’s Not About You”. The concept
of the panel discussion was to turn the
tables and hear from junior lawyers directly
about what it’s like to practice in this day and
age, and what they look for in a mentor. Our
panel was well-suited to speak to the topic, with
each member having either started or transitioned
their practice during the pandemic.
Khrystina McMillan (Mathers McHenry & Co) lateralled
from one Toronto-based litigation firm
to another; Zachary Al-Khatib (Liberty Law LLC)
left a Toronto firm to practise criminal law in
his home city of Edmonton, and Alana Robert
(McCarthy Tétrault LLP) graduated from articling
student to litigation associate, all while working
from home.
Thanks to Khrystina, Zachary, and Alana, here
are some insights on how to approach mentorship
in the age of remote work:
• Give feedback: More feedback is always
better! Early missteps can calcify into bad
habits if you wait too long to course correct.
Take the time to explain not only what could
have been done differently, but why. A new
lawyer might not appreciate the full context
that dictates how work is done—for example,
things like business considerations. Frequent
feedback also fosters approachability.
In a genuine relationship, mentees will
feel more comfortable encroaching on your
time to hear how they can improve.
• Have empathy: Remote work has meant
that work and home have melded together,
making the line between work and personal
hours indistinguishable. At the same
time, new lawyers are learning to practise
in literal and figurative isolation. Empathetic
check-ins from mentors can help. While
regular online check-ins were a great tool
back in April 2020, Zoom fatigue came hard
and fast. Be creative and think about different
ways to reach out to your colleagues in
a safe way, like meeting for a walk or coffee
on a bench. Try not to think of mentorship
as a task or a chore, but as a part of the job
you can both look forward to.
13

EVENT REPORT
Panel On Women In Middle
Years Of Practice – Some
Advice And Reflections
Ayesha Laldin, Department of Justice
On December 10, 2021, the Women in Law Working Group of the 10+ Standing Committee hosted
“Juggle, Juggle, Toil and Trouble: Inspirations for Keeping Women in Practice”, a roundtable featuring Lianne
B. Furlong (Aviva Trial Lawyers), Dominique T. Hussey (Bennett Jones LLP), and Maureen Killoran,
QC (Osler, Hoskin & Harcourt LLP), and moderated by Ewa Krajewska now of Henein Hutchinson LLP.
It was a lively discussion about the particular challenges many women face in the middle years of
their practices, due to increasing responsibilities and pressures from multiple fronts of their lives.
The speakers shared their stories about the challenges they experienced in mid-years of practice
and strategies on how to deal with the urge to leave, if it strikes. Lianne Furlong spoke
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about her transition from private practice to
in-house after her maternity leave, that was
prompted by the lack of accommodation at
the firm where she practised. After several
years at Aviva and a second maternity leave,
she has since accepted several promotions.
Now she prioritizes herself. According to Maureen
Killoran, every year can be hard, and it is
about what you can and cannot handle. It is
not unusual to have times when you feel you
are failing everyone all the time, and when that
happens, it requires a readjustment and a focus
away from perfection. Dominique Hussey
spoke about her experiences, shared by many
women at the ten-year mark. This is often a
time when women practising in firms have just
been admitted to the partnership and are also
raising a young family. Upon returning from
maternity leave, she worked hard to build up a
practice group and take leadership roles, while
also building advocacy skills. It can be a challenging
time because one is senior enough to
be making strategic decisions for clients, but
junior enough to still be tasked with ”heavy lifting”
duties like drafting.
Looking back, the panelists had some reflections
on what they know now that they wished
they knew in their middle years of practice.
Lianne Furlong talked about the importance
of women keeping the imposter syndrome in
check by reminding themselves that they are
highly educated, competent and know as much
as the person next to them. Maureen Killoran
wanted women to know that working does not
harm children; it enhances their ability to do
many things. Women should also not look to
their children for approval of their career choices.
It’s your career, not theirs. Dominique Hussey
urged that we should try to shut down the
assumptions that flow from a woman’s reproductive
decisions. For example, the assumption
that all new mothers are busy and unavailable,
or women with no children are available and
can take on added burdens needs to be rejected.
Women should be much clearer about what
they want to take on.
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Wednesday, April 27, 2022 | 9:00 am - 4:00 pm (ET)
Hybrid Conference: Live Online and In-Person at
The Advocates’ Society’s Education Centre,
250 Yonge Street, Suite 2700, Toronto
This practical program features the latest developments,
strategies and tools for adapting and succeeding in your
evolving litigation practice.
If you are a civil litigator serious about
advocacy, this is one program you
cannot afford to miss! With in-person
and virtual attendance options
available, no matter how you
choose to join us, you will
take part in a dynamic and
engaging day of learning.
REGISTER

EVENT REPORT
Highlights from
Women in Litigation
“Allyship and other themes from the TAS Women in Litigation Symposium”
Compiled by Miranda Spence, Aird & Berlis LLP
The theme of the 2021 Women in Litigation Symposium (Ontario) was, “Allies in an Era of Change.”
As always, the conference featured knowledgeable and engaging speakers addressing timely topics.
Attendees were treated to candid explorations of panellists’ experiences and heard about
ways we can stand up as effective allies.
Allyship through Leading by Example - Cynthia Spry, Babin Bessner Spry
One of my favourite panels at this year’s Symposium was View from the Bench, with Justices Thorburn,
Vella and Waddilove. All were excellent, and my reaction to Justice Waddilove’s story of her
path to the bench was visceral.
Her Honour grew up on a First Nations reserve outside London. It had no dedicated school or
clean water. This remains the case today. The teachers she did have told her that her people were
savages, and better suited to manual labour. When she finally joined a non-reserve school, she
was three academic years behind her non-reserve peers. She sought out supportive teachers, and
17

Cynthia Spry, Babin Bessner Spry
worked very hard to catch up. She succeeded
and thrived. In 2019, she became
a justice of the Ontario Court of Justice.
Her Honour talked about how — not
so long ago — First Nations people could
not vote, could not leave the community
without permission from an Indian Agent,
could not gather in groups of more than
three without being considered an “uprising”,
and could not go to university without
losing their Indian status.
Against this background, Justice Waddilove
said that creativity, change and
courage are required to move forward.
She counseled her listeners to take care
of ourselves, physically and mentally,
and seek out people who support us,
who do work that is important to us,
with whom we have a meeting of the
minds. She encouraged us to lead by
example; there are generations coming
up behind us who are looking to us to
help and support them. We must walk
with pride and strength and confidence
in who we are.
Justice Waddilove’s history, and the
too-recent history of Indigenous people
generally, emphasized anew for me how
important it is that we celebrate and promote
the increasing diversity on the bench
and in other positions of power, and also
recognize how far we have yet to go.
Ayesha Laldin, Department of Justice
Allyship through Diversity on the Bench -
Ayesha Laldin, Department of Justice
This year’s View from the Bench panel featured
a lively discussion on the importance
of diversity in judicial appointments. Judges
bring unique perspectives and life experiences
to their “judicial voice”, Justice Vella
explained. This voice is reflected in the
way they articulate reasons for judgment
and in their approach to identifying issues
and reaching a resolution. The way a judge
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uns her courtroom has a critical impact on
marginalized parties feeling respected and
heard. It fosters greater confidence in the
justice system. Justice Waddilove echoed
that judicial diversity fosters a commitment
to listen with an open mind, as the criminal
justice system means different things
to many different people. It requires a
commitment to challenge one’s own belief
systems and learn from under-represented
communities. For Justice Vella, this in
practice means encouraging reconciliation
through use of court processes like pre-trial
or case conferences.
Allyship through Mentoring -
Miranda Spence, Aird & Berlis LLP
One of the highlights of this year’s conference
was the mentoring roundtable sessions,
where attendees were able to (virtually)
discuss their thoughts and reactions to
the themes of the day and, along the way,
share their own personal experiences.
We have repeatedly heard that one of
the many losses of the pandemic has been
the informal mentoring that happens simply
from being in proximity to one another.
The roundtable discussions reminded
me that mentoring is about more than an
individuals’ personal growth and imparting
wisdom from one generation to the
next. Sharing stories among peers whose
experiences differ from our own is a form
of allyship and can provide the type of support
that may be lacking in formal policies
or structures. Indeed, in her Advocates’
Journal article, “Litigating through motherhood:
Can we talk?”, Lisa Brownstone
referred to “true, honest conversations
about our experiences” as a “hack” for litigator
moms. One of the best ways to find
common ground across diverse perspectives
is to simply keep talking – and listening
– to one another.
Miranda Spence, Aird & Berlis LLP
19

Building Block Series:
Motions Advocacy
Live Online
Motions are a key tool in an advocates’ arsenal. They can streamline proceedings or help
settle disputes – but only if you know when and how to deploy them effectively.
After rave reviews, the Building Block Series returns in 2022 with a comprehensive focus on
motions advocacy. Seasoned litigators and judges will take you through an in-depth analysis
of best practices, techniques and strategies for each stage of the motion process. Discover
when and how to prepare for, draft materials and conduct an effective motion, and receive
valuable tips for avoiding common traps.
Block 1:
Theory, Preparation, and Building
the Record (Plenary Session)
April 5, 2022
1:00 pm – 4:00 pm
Block 2:
Effective Oral and Written Motions
Advocacy (Plenary Session)
May 3, 2022
1:00 pm – 4:00 pm
Block 3:
Conducting an Effective Motion
(Skills Workshop)
June 21, 2022
1:00 pm – 4:30 pm
To learn more or register click here

ROUNDTABLE
Roundtable: Building Your
Book of Business Using
Alternative Fee Structures
Compiled by Megan Keenberg, C.S.,
Van Kralingen & Keenberg LLP
We all know that building your book of business is the key to success in law, but we don’t get a lot
of practical insight into exactly how to do it. One way to stand out from the crowd and attract business
is to get creative around fee structures for clients. I spoke with three leading practitioners
about how fees might be structured to attract and maintain business:
Erin Durant, Founder of Durant Barristers, a boutique firm based in Ontario specializing in disputes,
investigations, and sports law.
Annie Lespérance, Associate Investment Manager & Legal Counsel, and Head of Latin America
Group at Omni Bridgeway, a global litigation funder.
Justin Nasseri, Co-Founding Partner of Ross Nasseri LLP, a litigation boutique in Toronto specializing
in civil and regulatory disputes.
21

How can dispute funding help build your book
of business?
Erin Durant, Durant Barristers
Annie Lespérance, Omni Bridgeway
Annie Lespérance: There are several ways litigators
can leverage dispute funding to help
generate more business and grow their practices.
First, funding allows litigators to take on
a broader range of cases, including meritorious
and potentially lucrative cases from clients
who may not have the capital to afford a firm’s
hourly fees. A law firm may not be prepared to
accept the risk of litigating a matter on a full
contingency-basis to accommodate an impecunious
client. With non-recourse funding, however,
counsel’s fees are paid by the funder, and
the funder is only paid if the claim succeeds.
Second, well-capitalized clients may also
hesitate to launch litigation, even with strong
claims, preferring to use their capital for profit-generating
projects instead of legal fees.
Dispute funders help solve these problems by
taking on the costs of litigation, thus removing
them from the balance sheet and freeing
up capital for the client to pursue other business
priorities.
Additionally, funders can be sources of referrals.
Funders are routinely contacted by clients
with significant claims even before they
have representation. A good relationship with
a funder may translate into a call to introduce
you to a potential client. Finally, funders hire
lawyers, too. As part of the due diligence process
before we invest in a case, we often engage
counsel to provide an independent opinion on
the merits to help guide our funding decisions.
What are some alternatives to the classic full
contingency retainer that can assist law firms
in maintaining revenues while taking on performance-based
mandates?
Justin Nasseri, Ross Nasseri LLP
AL: From a dispute funding perspective, I see
two relevant financial models. A firm may be
prepared to take on a case with a strong chance
of success on full contingency, but the case may
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equire years of work without payment. A hybrid
scenario can be created whereby a portion
of the case budget is paid at regular intervals
by a funder. The rest can be carried by the firm
on a partial contingency to be paid in the event
of a successful settlement or judgment. In this
way, the firm is able to share in the upside of a
substantial recovery while maintaining a steady
stream of income throughout the lifespan of a
case. The percentage of risk allocation under a
hybrid scenario will be a function of the lawyer’s
and funder’s preference.
Law firms can also bundle multiple contingency-based
claims into a portfolio. By financing
several cases at once, the funder
is able to increase the amount of capital it
can provide. And as the funder recovers its
agreed-upon return, the firm can reap the
rewards from the resolution of the remaining
matters in the portfolio. For the law firm,
a portfolio approach can result in substantial
benefits. Cases that may not have provided a
return on investment for several years now
generate immediate income. Legal finance
may be used to fund operational expenses,
expand a practice, and hire associates.
Some entrepreneurial lawyers have used
this model to help finance start-up and operational
costs for their own boutique firms.
What are the pros and cons of fixed or flat fee
structures?
Erin Durant: I find that there are more pros than
cons. For a new firm like ours, the fixed and flat
fee files have given us some cash-flow predictability.
Individual clients and smaller businesses
also seem to like them as they can appropriately
budget their spend on legal services. The theoretical
con is that you end up spending more
time on the file and haven’t budgeted properly
upfront, but we deal with that by being careful
about the scope description and having an opportunity
to alter the fixed fee if something unexpected
arises on the file.
How do you calculate your flat fees?
Justin Nasseri: My budgeting is based on a
number of factors including data from comparable
cases (what I budgeted and what the actual
fees ended up being) and judgment calls
based on the complexity of the case. I start by
dividing the case into key phases e.g. pleading,
productions, etc. and then subdivide each
phase into steps representing the work involved
in each phase. For each phase and step, I assign
a value. Once the budget is set, I will honour it
and bill in increments; but the budget for future
steps can be revisited and revised if there are
unforeseen complications or issues that arise.
Everything is done incrementally to reflect the
dynamic and somewhat unpredictable nature
of civil and commercial litigation.
Do you include premiums or success fees on
your fixed fee or capped arrangements?
JN: Yes, sometimes I do, particularly in instances
where because of factors such as reasonable
opposing counsel or the existence of settled,
black letter law on the issue in dispute, I think
that an early resolution can be leveraged that
avoids the enormous cost of litigation and fulfills
the client’s goals.
Could you describe a subscription retainer and
tell us what kinds of clients are open to this
kind of billing?
ED: We have some clients who pay us a flat fee
every month. We use an online billing platform
to automatically handle the invoicing and payments.
The subscription service has been adopted
by small businesses and associations that
require regular advice (typically on employment
matters or risk management). The subscription
model has also resulted in disaster avoidance.
The clients are less reluctant to reach out to us
proactively as they know they are paying us
every month to be there for them when they
23

need us. The hope is that we will have far fewer
messes to clean up for clients if they are encouraged
to reach out to us early and often.
Do you find that alternative fee structures result
in greater or lower revenues for your firm
than the billable hour?
JN: I think the answer to this will vary greatly
depending on the nature of the law firm, the
files, and the quality and size of data that they
are relying on. In my experience, in a boutique
setting, it’s shaken out to be about the same;
but that’s because we are very efficient, our
associates are not driven by an ‘hours first’
mentality, and our budgeting is based on data
from a lot of cases where we have billed by the
hour but we feel good about the time spent
and the results achieved.
Are collectability rates different for alternative
fee structures?
JN: Not in my experience. When I am billing by the
hour, I am usually sending accounts every month
or two and if my retainer hasn’t been topped up,
I am asking to be paid promptly. Since most of
the AFAs I have ever used have been fixed-fee/
block billing arrangements that are broken into
phases of the litigation, I am similarly expecting
to get paid at various intervals while the file progresses
and I haven’t had an issue with it.
What about capped fees? Are caps always bad
for law firms?
ED: I think they can be bad for individual lawyers
who are set up in a traditional law firm that
focuses only on hours worked and effective
hourly rates. There is a big risk to the individual
lawyer that their metrics will be thrown off
by capped fees. I think that in a smaller firm focused
on overall revenues and profits, capped
fees can be an important part of the overall
business model and a way that you can effectively
budget upcoming revenues and profits.
What’s the most important thing to understand
about alternative fee structures?
AL: Aligning the interests of everyone concerned
is a critical piece of the puzzle. The law
firm, the funder, and the client should each be
incentivized to achieve the most commercially
sensible success in the case. To align interests
in a funding arrangement, we try to ensure that
everyone has “skin in the game”. The law firm
may be deferring a portion of its fees until resolution,
the funder is hoping to receive a return
on its investment, and the client may be asked
to remain financially engaged, for example, by
paying for a portion of the disbursements. Thus,
everyone has a financial interest in the successful
outcome of the case.
24

THE ADVOCATES’ SOCIETY
ANNUAL GALA
Thursday, April 28, 2022
Guest Arrival: 6:00 pm (MT) | Dinner: 7:00 pm (MT)
Calgary TELUS Convention Centre,
136 8 Ave SE, Calgary, AB
Business Formal | A member-only event

26
An Evening with the Commercial Bench
January 20, 2022 | Live Online

Justice Thomas McEwen
27

Tricks of the Trade - Best Practices for Firm Management in the P
January 28, 2022 | Live Online

andemic Panel
29

30
Tricks of the Trade - Chat with the Chairs: Mentorship and Trainin
January 28, 2022 | Live Online

g for a New Era
31

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www.advocates.ca