Precedent Magazine — Fall 2020 by Precedent Magazine

Office space After the pandemic, will Bay Street go quiet? p.13

Dog days How a puppy brought joy to a lawyer under lockdown p.25

Screen time The amusing truth about using Zoom p.26

The new rules of law and style Fall 2020 $9.95 precedentmagazine.com

The pandemic chronicles How lawyers jumped into action when COVID-19 hit Toronto

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On the cover Illustration by François Vigneault

ILLUSTRATION BY FRANÇOIS VIGNEAULT

Fall 2020. Volume 14. Issue 3.

Cover story

Going viral

As the coronavirus pandemic rampaged across the world, the legal profession was thrown into upheaval. To capture a historical record of this moment, we’ve chronicled how three law firms helped clients and maintained their workplace culture p.16

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Contents

25 Editor’s Note

How important is it to be productive right now? p.7 Letters

Our readers applaud the next generation of legal talent p.8 Our People

We asked our contributors to tell us what they’ve learned throughout the pandemic p.9

PRECEDENT FALL 2020

Brief

Debrief

Best Practices

The Insider

Meet the lawyer who helped spearhead a movement to protect thousands of prisoners from COVID-19 p.11 On the Record

Will Bay Street continue to shell out millions on lavish office space? p.13

On precedentmagazine.com

Life under lockdown is difficult, but it’s a lot easier with a new puppy at home p.25 Best Picture

Four Toronto lawyers (and one kid) pose for their Zoom portraits p.26 First Person

As the economy continues to slide, we have to cut ourselves some slack p.30

How to celebrate milestones during the lockdown

Together, we can spread joy and support local businesses

EXCLUSIVE ONLINE NETWORKING FOR LAWYERS

The following lawyers were recently featured on the Precedent A-List a-list.lawandstyle.ca The Precedent A-List is your online source for awards, promotions, new hires and other legal news

Hyde HR Law welcomes associate Oren Barbalat

Dutton Brock LLP welcomes associate Kathy Conteh

SpringLaw welcomes Jessyca Greenwood

Polley Faith announces new partner Jeffrey Haylock

Dutton Brock LLP welcomes associate Dana Hyeseung Yoon

Henein Hutchison LLP welcomes associate Daniella Murynka

Thomson Rogers welcomes associate Sarah A. Naiman

Wood Bull LLP welcomes associate Monica Poremba

Dutton Brock LLP welcomes associate Joy E. Stothers

Tyr LLP welcomes associate Abhishek Vaidyanathan

REWC Law welcomes associate Saba J. Khan

To share your news, contact us at alist.support@precedentmagazine.com 416-929-4495 Get more news online at a-list.lawandstyle.ca

FALL 2020. VOLUME 14. ISSUE 3. PUBLISHER & EDITOR

Melissa Kluger SENIOR EDITOR

Daniel Fish

COMMUNICATIONS COORDINATOR

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Brian Morgan Rachel Wine

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Brendan George Ko Doug Panton Jeannie Phan François Vigneault Ashley Wong IT CONSULTANT

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Paul Jerinkitsch Imaging FACT-CHECKERS

ACCOUNTING

Paul Cass CONTRIBUTING WRITERS

Cameron Bryant Danielle Groen Simon Lewsen Leah Rumack Adrienne Tanner

Allison Baker Martha Beach Catherine Dowling PROOFREADERS

Amy van den Berg Christina Cheung Lazarus James Anna Maxymiw Sarah Munn

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Editor’s Note

Enough is enough My approach to the pandemic has centred on one key theme: low expectations

I have to say, as this pandemic drags on, I’m getting tired of Isaac Newton. In every

PHOTO BY IAN PATTERSON

story I read about pandemic productivity, Newton is there. Yes, I know. In England in 1665, the guy invented calculus while in isolation during the bubonic plague. And he began to develop his theory of gravity, too, during that time. Of course he did. Well, I’m no Isaac Newton. In my isolation, I learned some common lessons of the era: how to grow vegetables in my backyard (success!), how to work and parent simultaneously (less success!) and how to switch all my IRL meetings to Zoom (oh, wait, you’re frozen . . . can you hear me now?). There have been no amazing discoveries. And I’m alright with that. So long as I’m a good parent, my house is not in a state of total chaos and I continue to get this magazine out the door (well, a digital edition out the door), I think I’m doing a pretty kick-ass job all things considered. I’ve been amazed, however, at what the legal community has achieved throughout this period of incredible challenge. Amid the chaos, fear and uncertainty that COVID-19 has wrought, a lot of lawyers have been incredibly productive. And their work doesn’t simply translate into more billable hours; it translates into a better justice system. In this issue, you’ll meet lawyers who have advocated for safer prisons, grappled with novel legal issues and increased access to justice using technology. Our cover story (“The pandemic chronicles,” p.16) delves into the early days of the lockdown at three Toronto law firms. Though you’ll hear about some of their struggles, I think you’ll be inspired by how each firm found creative ways to serve clients and maintain camaraderie at the virtual office. Of course, the picture in the legal community isn’t all rosy. We have faced all sorts of setbacks. Salaries have been cut, jobs have been lost, work has slowed down. In an essay, lawyer Cameron Bryant addresses these setbacks (“System failure,” p.30). As he points out, this has been a time of real hardship. The important thing I’ve learned about Isaac Newton — and what is not mentioned in a lot of the pep-talk-style stories — is that the idea of calculus didn’t simply dawn on him while he was waiting out the plague on a farm in the English countryside. He had already been working on his ideas before the plague hit, and he continued to do so once it was over. He simply carried on. And so, I guess I have more in common with Newton than I originally thought. Not because I was able to invent calculus. But because, in the face of a terrifying pandemic and the mental hardship of isolation, I, too, was able to carry on.

Back to school We are excited to announce that we’re taking our sister publication for Canadian law students in a new direction. PrecedentJD is now an onlineonly publication! We are still committed to helping law students prepare for their careers by offering valuable resources and advice, and our new digital format will help us meet that mandate even better. Our revamped website features timely reporting and thoughtful think pieces that will help the next generation of legal talent prepare for the future. Visit PrecedentJD.com to get the latest stories and to sign up for the JD eNewsletter.

Melissa Kluger

Publisher & Editor melissa@precedentmagazine.com @melissakluger

PRECEDENTMAGAZINE.COM 7

Letters

Your CPD. From your legal community.

POWER MOVE Thank you for writing about ReferToHer.com, the online referral network that directs work to highly talented female litigators and corporate and securities lawyers (“Top of mind,” Summer 2020). Women (lawyers) need as much profile as they can get. Having the site profiled in Precedent is key to making that happen. Great work! Leila Rafi Partner, McMillan LLP

Leading the way

This year’s Precedent Setter Award recipients show what’s possible when you combine determination and humility (“In the spotlight,” Summer 2020). Thank you for celebrating their important work. Future lawyers take note: this is what success looks like in our profession.

See our Fall programs at store.lso.ca

@LSOCPD Law Society of Ontario CPD

PRECEDENT FALL 2020

Brittany Twiss National director, Pro Bono Students Canada

I remember being an associate on my first day of work, walking up from the subway in the blazing sun and being struck by the canyons of skyscrapers that now were my professional home. For any lawyer, the road from a moment like that to achieving some kind of personal success in law is long, filled with mixed emotions, hard work and unexpected, often thrilling, challenges. That’s why, every year, the list of recipients for the Precedent Setter Awards makes me proud of the profession. The broad range of winners represent all of us who are on the journey. It’s reinvigorating and a cause for celebration. Awanish Sinha Partner, McCarthy Tétrault LLP

War stories

I really enjoyed your story on what it takes to be a top rainmaker (“Making it rain,”

Summer 2020). In particular, I found it fascinating that, at the start of his career, Perry Dellelce — of the notable corporate boutique Wildeboer Dellelce LLP — was the only one out of 18 articling students to not get hired back as an associate. After reading his story, I realized that not enough lawyers talk about their early career setbacks. We all know the stories of the ultra-famous who prevailed despite numerous failures: J.K. Rowling, Oprah and Steve Jobs come to mind. Their stories are inspiring, but perhaps not entirely relatable. Let’s all strive to be more forthcoming about our past experiences, especially the humbling ones, so that we may inspire young students and lawyers to remain determined and resilient in the face of adversity. Avi Weiss

The hottest stories on precedentmagazine.com Most views The 2020 Precedent

Setter Awards

Most likes What does it take to

be an elite rainmaker?

Most retweets The ultimate cure

to workplace burnout

Strange times We’re now six months into the coronavirus pandemic, so we asked our contributors to tell us what they’ve learned during the lockdown

“How to make cocktails!” says Leah Rumack, a writer, editor and content creator based in Toronto. “Did you know you can make them at home and not just pay $17 for them at small hipster restaurants? I feel like a wizard.” Her work has appeared in Chatelaine, the Globe and Mail and Today’s Parent, among other publications. In this issue, she spoke to Toronto lawyers about how they’re managing to practise law on Zoom (“Screen share,” p.26).

Simon Lewsen is a Toronto-based writer who contrib-

PHOTO CREDITS: CHLOË ELLINGSON (SIMON LEWSON); GUILLAUME SIMONEAU (BRIAN MORGAN)

utes regularly to the Walrus, the Globe and Mail and Azure. He also teaches writing at the University of Toronto. “The pandemic has given me a chance to slow down and re-engage with the classics: old Hollywood movies, comedy specials from the ’80s and ’90s, and early-20th-century novels,” he says. “It’s been a reminder that there’s value not just in things that are new but also in things that have staying power.” He wrote this issue’s cover story, which follows three law firms as they grapple with the coronavirus crisis (“The pandemic chronicles,” p.16).

“One unexpected thing I’ve learned is how to wire and renovate dollhouses,” says Brian Morgan, who art directs Precedent alongside Rachel Wine. “I’ve also learned that I like doing it.” From his home in Montreal, Morgan works with a team of talented photographers and illustrators to bring each issue of the magazine to life. He is also the art director of Maisonneuve and the Literary Review of Canada. Previously, he has art directed at Maclean’s and the Walrus.

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Brief

THE LATEST FROM THE LEGAL WORLD

BEST PRACTICES

In the trenches At the height of the pandemic, Boris Bytensky helped mobilize an army of defence lawyers to reduce the prison population by Danielle Groen illustration by Ashley Wong

“ It sometimes takes a calamity to cause major change.” Norm Bacal on how the pandemic might affect real estate on Bay Street p.13

To criminal lawyer Boris Bytensky, the early days of the pandemic

unfolded in the correctional system like a giant round of whacka-mole. “We were trying to smash down one problem, and then something else would pop right up,” says the partner at Bytensky Shikhman Barristers. There were concerns that prisons across Ontario were critically short of hygiene supplies; but, hold on, staff urgently needed personal protective equipment; no, wait, incarcerated people had to be distanced from each other right away. “There was no playbook for this,” he says. Every actor in the justice system recognized that depopulating prisons would be essential for containing the spread of COVID-19. “These institutions are ripe for outbreaks,” says Bytensky, “which affect not only the individuals in custody, but the correctional officers who work there, our hospitals and our communities.” So he and the Criminal Lawyers’ Association, where he is also the

PRECEDENTMAGAZINE.COM 11

Brief t reasurer, assembled a battalion of more than 120 lawyers, who descended upon every courthouse in the province to conduct emergency bail hearings (among other duties). As these hearings ran at a rapid clip for about two weeks in March, none of the defence lawyers had any expectation of being paid. At a later date, though, Legal Aid Ontario was able to compensate them for most of their time during the first week of the hearings. “We’re grateful that they stepped up and paid us,” says Bytensky. “They didn’t have to.” For a sizable chunk of his 27-year legal career, Bytensky has worked to reform what has historically been a lengthy, antiquated and inefficient bail s ystem. “Inertia is an absolutely horrible aspect of the criminal-justice system,” he says. “We do things today for the simple reason that they were done that way yesterday. We impose all sorts of conditions on bail and we don’t need to.” The pandemic brought with it a sudden need for change. Working alongside key stakeholders in the criminal-justice system — including the government, chief justices, the Crown and police — Bytensky helped develop new protocols to ensure, among other things, that anyone under arrest (with few exceptions) would have a bail hearing within 24 hours; that technology in jails would be improved to allow for audio or video hearings; and that electronic monitoring devices would be provided at the government’s expense.

“There was no playbook for this.” Boris Bytensky

These new protocols, alongside the work of defence counsel at bail hearings, contributed to the release of nearly 3,000 people, roughly 30 percent of the pre-COVID prison population. (The majority of them were awaiting trial.) “Those are 3,000 individuals with loved ones who were worried sick about them,” says John Struthers, a criminal lawyer and the president of the CLA. “Boris has been a real leader of that effort.”

How did Bytensky accomplish all this? Well, he had a bit of time. As the defence lawyer for Toronto van-attack driver Alek Minassian, whose high-profile, judge-alone trial was meant to start in early April, Bytensky had cleared his calendar to litigate the case. Once the trial was postponed to November, his schedule was wide open. He put it to good use. “It’s been 80-, 90-hour weeks regularly,” says Bytensky, who has been sheltering at home with his three children, ages 15 through 23, and his wife, assistant Crown attorney Anna Tenhouse. The vast majority of those hours were devoted to unpaid work; it wasn’t until the summer that his casework started to ramp up again. His firm, unsurprisingly, has taken a financial hit. When the Minassian trial begins, Bytensky suspects it will do so in a courthouse that looks very different, with perhaps one-10th the number of people — a challenge for a case with this level of media interest and, critically, this number of victims. Still, he’s determined to find a solution. “I am very, very sensitive to the victims in this case. It’s critical that they and their families have an opportunity to meaningfully observe the proceedings.” In the meantime, Bytensky will continue to monitor the health of the criminal-justice system. “We haven’t cured all that ails it, but we’ve moved it forward,” he says. “This has been an opportunity born out of a really, really horrible situation to make much-needed change.”

Timeline of a criminal-defence lawyer

Year of call 1993

1988: After two years at Western University, he starts law school at Osgoode Hall. As Bytensky notes, this “was something you could do at the time and still qualify for law school.” 1991: Bytensky articles at Goodman & Goodman (now called Goodmans LLP) before spending more than a year at the firm as an associate,

PRECEDENT FALL 2020

doing corporate commercial and insolvency work. A career in criminal law starts to look more appealing, thanks in part to his wife, Anna Tenhouse, who was articling with a defence firm at the time. “Her stories around the dinner table were much more interesting than mine.” 1994: He opens his own general practice catering to the Russianspeaking community in Toronto. 1996: He works on a criminal file with Leo Adler, who was sufficiently impressed to invite Bytensky to start

a practice with him the following year. “I liked Boris right away,” recalls Adler. “But he's not only a terrific individual. He is also a tremendous lawyer with tremendous legal knowledge.” 2020: Now a partner at Bytensky Shikhman Barristers, Bytensky helps draft dozens of new protocols to improve the criminal-justice system during the pandemic. “Over the past few months,” he says, “we’ve taken major steps forward.”

PHOTO BY ELAINE FANCY

Boris Bytensky Partner, Bytensky Shikhman Barristers

1975: A seven-year-old Boris Bytensky arrives in Toronto with his parents after emigrating from St. Petersburg.

Brief ON THE RECORD

Foreclosed The future of the Bay Street office tower by Adrienne Tanner illustration by Doug Panton

The well-appointed law offices on Bay

Street are, in a word, stunning. These corporate compounds feature sparkling lobbies, boardrooms that overlook Lake Ontario and hundreds of offices that span multiple floors. None of this comes cheap. But the legal profession has long considered downtown office space to be an essential part of the law-firm business model. Other industries have been more open to change. Accounting firms and tech companies have, in recent years, expanded their work-from-home policies and added shared workspaces to their floorplans. The largest law firms have sat on the sidelines. “They have this image of themselves that is very hard to change,” says Norm Bacal, a former managing partner at the now-defunct Heenan Blaikie LLP who has become a consultant on law-firm management. The robust legal market, he points out, has provided little incentive to reform long-held business practices. “If you’re a big firm and your lawyers are consistently billing anywhere from $700 to $1,200 an hour, you’re not going to be too worried about rent.” The coronavirus pandemic might shock the profession out of its complacency. The legal economy has taken a hit, which has made some cuts inevitable. Law firms are also learning that it is, in fact, possible to work productively at home. “It sometimes takes a calamity to cause major change,” says Bacal. “Suddenly, all your sacred cows are out the window.” Before the pandemic, the Toronto realestate market was at a record high. In the financial district, the average commercial rental rate sat at about $69 per square foot. At the most exclusive buildings, such as the Bay Adelaide Centre, that figure rose into the eighties. “The highest watermark was $90,” says Allen Brusilow, a senior vicepresident at the commercial real-estate giant JLL. “Leading into this year, we were in very much a landlord’s market.” What does that mean in real terms? At the market’s peak, a single floor of top-tier office space could have cost $2.25 million. If a law firm leased, say, six floors at that

price, the annual rental bill would have been $13 million. There are, of course, additional expenses: renovations, furniture, artwork. The total cost, therefore, would almost certainly have been much higher. Today, the real-estate industry is feeling a bit of pain. According to Stefan Teague, an executive managing director at the commercial real-estate and professional-services firm Cushman & Wakefield, some small companies that were hit hardest by the lockdown are trying to renegotiate their leases or downsize their space. “Businesses are evaluating what cost-containment

measures they can implement,” he says. “Clearly, real estate is one of the highest cost items for any business.” Bacal predicts that change in the legal profession will take time. Many large firms sign 10- or even 15-year leases, so they may be locked into high rates. But he thinks the pandemic will serve as an impetus to implement long-overdue reforms. Those include cutting down on lavish office space: “If my lease was coming up three years from now, I’d be thinking, How do I not lose the momentum from this and rethink entirely the way our firm is going to practise law?”

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How this lawyer enhanced her legal skill set For Melanie Toolsie, no two days are the same. As a legal counsel at the Department of Justice, she represents decision makers and departments within the federal government — such as Health Canada or the Canadian Food Inspection Agency — when they face legal challenges. “Every day, I’m working with different statutory mandates, departments or pieces of legislation,” she says. Her work requires a nimble mind and a wide range of knowledge. By 2010, Toolsie had been in this role for close to a decade, and she decided it was time to take a deep dive into the theoretical underpinnings of one of her core practice areas. So she enrolled in the administrative law specialization of the Osgoode Professional LLM, a rigorous graduate program that she could complete on a part-time basis. At the time, she had two young children, ages three and five. Thankfully, the program offered evening courses and lectures delivered via streaming video. “If it wasn’t flexible,” she says, “it would not have been doable.” The quality of the instruction was top notch. “The LLM connected us with incredible thinkers who could bridge the theoretical foundations of administrative law with practical experience,” says Toolsie. After completing the program, she was more confident and could deliver expert advice to the broadest range of public-law clients. “I wish I could take the program indefinitely,” she says, “as part of my continuing professional development.”

MELANIE TOOLSIE Osgoode LLM: Administrative Law, 2013 Legal Counsel at the Department of Justice Year of call: 2000

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The pandemic chronicles We followed three Toronto law firms as they fought to keep clients, court dates and camaraderie during the coronavirus lockdown by Simon Lewsen illustrations by François Vigneault

In the tech industry, the informal motto is “move fast and break things.” In law, the equivalent axiom might as well be “move slow and don’t touch anything.” The core tenets of our legal system are nearly 1,000 years old, and the norms and practices of the profession are similarly ancient. So what happens when an industry rooted in precedent — both legal and institutional — faces an unprecedented crisis? We now have an answer to that question. In March, the COVID-19 pandemic turned the legal world upside down, shuttering offices, closing courthouses and making faceto-face client meetings impossible. What follows is the story of how three firms — an established personal-injury outfit, a brand-new workplace and alternative-dispute resolution practice, and one of the most storied litigation boutiques in the country — adapted to the biggest period of upheaval in a generation.

Part One The response team

Today, such an event would be unthinkable. The advent of COVID-19 has forced society at large into an extended form of lockdown. That, in turn, has placed Howie, Sacks & Henry’s culture under enormous pressure. The tight-knit firm, with 12 partners and eight associates, has always valued camaraderie that cannot be sustained through water-cooler chitchat alone. The partners get most of their cases through referrals from lawyers and doctors, a strategy that requires them to keep a busy social calendar. Even lawyer-client relationships involve a high level of mutual rapport. Personal-injury plaintiffs must place immense trust in their legal representatives during a vulnerable phase in their lives. “There’s a human aspect to all of our cases,” says Valérie Lord, one of the firm’s associates. In many respects, however, Howie, Sacks & Henry was prepared to weather the storm. Internal documents were stored electronically, clerks were already working from home several days a week and, because the business runs on contingency fees and settlement payouts, it didn’t rely on sending clients monthly or quarterly bills. Yet the partners were nervous. With the courts closed indefinitely, would they be able to reach settlements on any cases? And how could they maintain such an intensely personalized practice in a world on lockdown? “Get ready for business as unusual.” This was the advice that

David Levy, the managing partner, delivered to staff on March 26, at the firm’s first virtual town hall. The style of work might change the personal-injury firm Howie, Sacks & Henry LLP, went in the months to come, he explained, but the work itself would dancing with five of her colleagues. First, the group stopped continue. The firm had no intention of laying anybody off. at Mambo Lounge, a Cuban restaurant, for dinner and During the previous week, Levy and Adam Wagman, a senior mojitos. Then, they headed to a nearby community centre partner, had come up with a plan. The entire team would avoid the for salsa and bachata classes. The vibe was surprisingly clubby: the office, except a skeleton staff, who would show up twice a week to lights had been dimmed, there was a DJ in a makeshift booth and a do such tasks as receiving documents and mailing out settlement bartender mixed five-dollar rum and Cokes. “We were learning cheques to clients. To increase cash flow, the partners would take from the instructors but also from the people around us,” recalls 20-percent pay cuts. And, in the weeks to come, all lawyers on staff Miller. “Every 15 seconds, I was dancing with somebody new.” would focus on cases that could be advanced through remote work

n the last Friday of February, Melissa Miller, a partner at

PRECEDENTMAGAZINE.COM 17

or virtual proceedings (such as pre-trial hearings and mediations). The message was clear: locking down didn’t mean slowing down. It just meant rejigging priorities. But what about business development? Howie, Sacks & Henry gets most of its clients through networking. If a doctor or lawyer has a lead on a personal-injury case, the firm wants to get the call. This strategy requires a track record of high-quality work, but visibility doesn’t hurt either. That’s why the partners attend, on average, between 10 and 15 outreach events per month, including industry get-togethers — like meetings of the Advocates’ Society or Law Society — and informal hangouts with colleagues over, say, craft beer at King Taps, oysters at Buca or dim sum in Chinatown. “The business-development practice,” says Levy, “is as important as the practice itself.” When the world shut down, the leadership team knew they’d have to get creative to maintain their marketing edge. In late March, Levy sent out personal emails to his closest contacts in the legal and medical professions. He discussed the difficulties of lockdown and invited recipients to share their stories. He was inundated with responses. The lines of communication were now open. In April, Wagman was on an email exchange with a colleague at another firm, when suddenly he had an idea. “Let’s go for a bike ride,” he wrote. A few hours later, the pair hit the trail. They did loops around the Bridle Path, pedalled past Drake’s mansion and stopped at Goûter, a French bakery, for takeout pains au chocolat. It wasn’t Buca, but it was a good day’s networking all the same. The firm works just as hard to maintain contact with its client roster. Seeking financial compensation, after all, is only a small part of the job. The legal team begins each case by asking: Does the client have the proper supports, like nurses, occupational therapists and counsellors? And is the insurance company covering these expenses? “The sooner a patient gets into rehabilitation, the more positive the health outcome will be,” says Levy. “This is where our work begins.” In an era of social distancing, bespoke medical care has been difficult to provide. Wagman recently started representing a client who was in a car accident that left her with extensive injuries from head to toe. “I’ve never seen so many broken bones,” he says. Typically, such a patient would stay in a rehabilitation ward until she had reached an appropriate level of mobility. But, to free up beds for potential COVID-19 cases, the hospital discharged her within two months of the injury, before she had arrived at that point in her recovery. So Wagman found a physiotherapist willing to put on PPE and visit the client at home (once the Ontario government gave the green light for such care). To manage the stress of convalescence, he helped her set up regular video consultations with a social worker. And, to compensate for the absence of a live-in nurse, he arranged for her husband to get lessons in personal care. Most importantly, he made himself available 24/7 for phone calls. The firm as a whole has exhibited the same dedication. “We’ve been meticulous about communicating with clients from the very beginning of lockdown,” says Lord. “If, before COVID, I depended mostly on emails, I’m now setting up calls and video chats. I want clients to hear — directly, in my voice — that, despite everything, I’m doing all I can to help them.” If strong interpersonal relationships are key to advocacy and out-

reach, they’re also essential to office morale. The cases are emotionally tough. Howie, Sacks & Henry is currently representing, for instance, the families of Canadians who died on Ukraine International Airlines Flight 752, the passenger plane shot down over Iran. (The firm has been retained by 11 families in relation to 19 deaths.) The firm is also bringing claims against several nursing

homes, including Orchard Villa, a long-term care facility that has seen one of the worst COVID-19 outbreaks in the province. These claims involve more than a dozen homes and about 50 clients. To handle this work with diligence and sensitivity, the team needs a bit of levity in what are otherwise difficult workweeks. And so the firm has kept things fun. Each Friday, at cocktail hour, all the lawyers make a drink, alcoholic or otherwise, and then log on to Webex for bonding and banter. Maybe the associates will begin by ripping on one of their bosses for wearing goofy quarantine attire, or they’ll do a virtual tour of a colleague’s house. One time, Neil Sacks, a founding partner, picked up his guitar and regaled the team with old blues standards. (The rusticity of the music paired nicely with the ragged mutton chops he’d grown at home.) For the annual retreat, conducted virtually, the firm had a fun-in-the-sun theme, with everybody in beach hats and tropical shirts. “I was laughing so hard I couldn’t breathe in my snorkel goggles,” says Levy. There’s been dancing, too. During the early stages of lockdown, Paul Miller, a partner, was quarantined with his kids when he saw them making TikTok videos. The resulting clip is hilarious: Miller’s 21-year-old daughter is in the kitchen getting down to Megan Thee Stallion’s viral hit “Savage,” when suddenly Miller appears, dancing awkwardly in the background. He sent the video to his colleagues, who found themselves laughing and cringing at the same time. One associate asked if, after lockdown, Miller might come to the next salsa and bachata class. His reply? “I don’t think I’m ready for that.”

Part Two The incredible duo

n March 24, Morgan Sim, co-founder of the workplace and

alternative-dispute resolution practice Parker Sim LLP, was having what felt like an unusually productive morning. Her husband, Nazorio Koné, an auditor with the French school boards of Ontario, had recently returned from abroad and was self-quarantining at their Toronto home. Sim and their two toddlers holed up at a friend’s farm near Prince Edward County. Her friend, another busy lawyer, was also at the farm with her young child. Which meant that there were three children in the house, all demanding food, play and entertainment. Sim’s formal workday began at 8 p.m., once the kids were asleep, though she got through occasional emails and phone consultations during business hours. But March 24 felt different — at least, at first. She began her morning with a lengthy, uninterrupted phone call with her co-counsel on a case. The kids, meanwhile, were blessedly silent. In retrospect, she should’ve known something was up. When she emerged from her call, she discovered that “quiet playtime” was actually “take poop out of your diaper and smear it on the couch and rug time.” There was shit everywhere. The adults went into emergency cleanup mode: Sim washed down the children, while her friend disinfected the rug and furniture. “Luckily, she had a dog,” says Sim, “so she had the appropriate cleaning products.” The rest of the day was typically anarchic. At one point, the children sat around the dining table slamming their palms down and demanding yogurt — vanilla yogurt, to be exact. At another point, they ventured outside and came back covered in mud. Before the day was over, there had been a second diaper blowout. “By 4 p.m., we’d pretty much given up on parenting,” says Sim. “We parked the kids in front of the television and basically just called it a day.”

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Meanwhile, her work life was blowing up. Once COVID-19 hit, many law firms faced the possibility of reduced clients and stagnant cash flow. Parker Sim had the opposite problem: nearly everyone in the business world suddenly needed workplace-law advice. Existing clients were calling with emergency requests, and the firm received at least two calls per day from potential new clients. To keep up, Sim worked seven days a week, as did her partner, Cenobar Parker, who was eight-and-a-half months pregnant with her second child. Amid the intensified pressures of family life, the duo had to steer their practice through an unprecedented national crisis. And one more thing: in March, Parker Sim was, itself, only three months old. Parker and Sim first met as associates at Pinto Wray James LLP,

the erstwhile employment-law firm on Bay Street. They were close from day one, and colleagues often joked that, one day, they’d start their own practice. In October of 2019, Sim had lunch with Parker, who’d gone solo a year earlier, and they discussed whether they could turn the old joke into reality. As it turns out, they could. Parker Sim, which opened in January, offers a variety of workplace-related services. In a given week, they might advise an employer or employee on a contract negotiation, help an employee with disability benefits, litigate a human-rights claim or investigate a case of workplace misconduct. From the start, the clients came in fast. But nothing prepared the duo for the onslaught that would head their way in March. The legal ground beneath everybody’s feet kept shifting. Consider, for instance, the thorny issue of layoffs. It’s well known that, in order to save themselves from going under, many business owners temporarily dismissed their staff. Less well known is that these kinds of layoffs may have been illegal: you can’t typically furlough your workforce unless your contracts allow you to do so. There had been speculation that, amid an emergency like the COVID-19 pandemic, those old rules may no longer apply, but that theory had not been tested in court. If employees started to sue their former bosses, it was impossible to predict how judges would rule. The partners opted to embrace the uncertainty. They gave the best advice they could and were frank about what they didn’t (and couldn’t possibly) know. When advising employees who’d been laid off, they walked them through their options. Yes, they could sue for breach of contract, but such actions could jeopardize their hire-back prospects, and, on top of that, the laws might change. Similarly, when advising business owners who were contemplating layoffs, the duo helped them pick the best of the bad options. “We advised clients to be frank with employees to help them to understand the dilemma that the employers were facing,” says Parker. This honest, humane approach, she reasoned, would preserve goodwill and minimize the chances of legal repercussions. The other big challenge was keeping up with the law. Seemingly each day, the government announced changes to its legislation on wage subsidies, employment insurance and other emergency benefits. To follow along, Parker and Sim turned to an unusual source: Twitter. Sim remembers the day Bill Morneau, the thenfederal finance minister, announced changes to the Canada Emergency Response Benefit (CERB), a program designed to keep jobless citizens afloat. She needed to read the legislation ASAP, but it wasn’t easy to find. So she put out a Hail Mary tweet, hoping somebody with insider knowledge would chime in. A former law-school friend, who knew someone who worked in the Senate, saw the request and sent Sim a URL where the legislation would be posted. It was an abnormal way to source legal information, but these were abnormal times.

“It felt like we were living in a world of royal decrees,” says Sim. “Each morning, we’d wake up and watch Trudeau’s press conference in order to learn how the law would be changing.” One month into the lockdown, some of the initial chaos subsided:

employees started collecting benefits and employers figured out how to operate remotely or temporarily wind down their businesses. Eventually, the provincial government amended the Employment Standards Act, retroactively deeming COVID-related layoffs to be another category of temporary leave. This avoided a potential crisis for employers, who may have otherwise been found to have terminated those employees. On the whole, however, the legal landscape remains uncertain. In early April, Parker gave birth to her son, Iliya. At the hospital, she kept up with clients by phone. “When you own your practice,” she says, “you can’t just shut down.” Once she returned home, however, her workload had let up, which allowed her to take a (partial) maternity leave. She still handled intake meetings with clients and some admin, but Sim covered most of the legal work. Because daycares remained closed, Parker and her husband — Mayu Saravan, a director at BMO Capital Markets — found themselves taking full-time care of their three-year-old daughter, Naiya, along with their newborn. This challenge brought its share of pleasures. In between work emails and time with Iliya, Parker went on long walks with Naiya, during which they’d hunt for imaginary Easter eggs. “As a lawyer, I don’t often get to exercise that whimsical part of my brain,” she says. Whenever Parker had important work to do, she’d plunk the toddler down in front of Cosmic Kids Yoga, the DayGlo-coloured YouTube series for children. At first, Naiya fell over every time she attempted the “tree pose” (balanced partly on one leg, arms stretched overhead). “Now,” says Parker, “she’s a balancing master.” Despite the travails of the last few months, Parker and Sim believe that the pandemic might spur positive change within workplaces. For instance, they often represent employees seeking alternative work arrangements, perhaps because they have a disability or a childcare commitment. Bosses are sometimes hesitant to provide these accommodations, but the pandemic has shown that it is indeed possible for people to be productive outside of a traditional workplace. “We have always known that employees are not defined by their limitations,” explains Sim. “If they are allowed to make alternative work arrangements, they can be hugely valuable employees.” Parker and Sim have also forged an incredibly strong partnership. If they can survive the pandemic, they can survive anything. Sure, the hours have been ungodly, and the work was often unorthodox. Yet they improvised, co-operated and, ultimately, made it through their first six months in business. Even if it was a (sometimes literal) shitshow.

illegally deleting digital files pertaining to that controversial (and costly) decision. Hutchison — who represented Miller at the trial, but not Livingston — hoped to demonstrate that the expert witness in front of him, a computer forensics examiner and retired police officer, was too involved in the case to give unbiased evidence. Hutchison had roughly 40 documents, including memorandums and emails, showing that the witness had helped the police execute search warrants and had even suggested charges that the state might bring against the accused. That’s not how a neutral party behaves.

“ We parked the kids in front of the television and basically just called it a day.” — Morgan Sim, Parker Sim LLP

To make this point, Hutchison needed to present not just vidence but also a kind of story — in this case, about a witness e gradually acknowledging that he wasn’t as impartial as he’d claimed to be. “I put each document in front of him and gauged his response,” says Hutchison. With every new file, the witness got visibly nervous. In such instances, says Hutchison, the witness will often look to the prosecutor or judge, as if seeking their help. In the end, the court accepted that the expert had too much skin in the game to give impartial testimony. The cross-examination was successful, in part, because it happened live. Had it transpired remotely via videoconferencing or through written submissions, it wouldn’t have had the same effect. “Presenting evidence is not simply about downloading data into the court,” says Hutchison. “There’s a performative element to it.”

Part Three The league of legends

n 2018, Scott Hutchison, a founding partner of the litigation

boutique Henein Hutchison LLP, was performing a crossexamination in one of the most high-profile cases in the country: the trial of David Livingston and Laura Miller, former aides to the premier of Ontario. Close to a decade earlier, the provincial government had halted construction on two gas-fired power plants, and the defendants were accused of

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A trial is a kind of human drama, with characters, dialogue, awkward silences and the occasional plot twist. (Miller was acquitted on all charges.) One can make a similar point about the legal profession as a whole. Advocacy, after all, is an interpersonal endeavour. Clients and counsel build trust through face-to-face meetings. Lawyers come up with strategies via conversations with their colleagues. And cases are advanced through what Hutchison calls “informal advocacy” — the spontaneous dialogue that happens, for instance, in a hallway prior to a mediation. Everybody at Henein Hutchison is attuned to the social nature of their work. The lawyers carefully stage-manage trials to make their arguments as compelling as possible. The two founders — Hutchison and his business partner, Marie Henein — have a firmwide open-door policy, whereby staff can drop by their offices anytime for in-person advice on a file. (The firm has three equity partners, three non-equity partners and 10 associates.) Even junior lawyers at the firm are highly sought-after among prospective clients; they may be relatively inexperienced, but they have unlimited access to two of the best legal minds in the country. When COVID19 hit, the partners had to figure out how to preserve their workplace dynamic while all but shutting down the office. And they had to answer an even more pressing question: with the courts closed, what were they going to do about trials?

answered a work call on his phone and forgot to mute his laptop. Luckily, he didn’t say anything confidential, but when he got back to his computer, the client and co-counsel were both laughing. “I had demonstrated exactly what not to do,” he says. Pretty much everybody has stories like his. Since COVID-19 hit, we’ve all found ourselves fumbling with technology we rarely used before. In low-stakes situations, such hiccups hardly matter. But what about high-stakes proceedings, like a virtual trial? The concept has one clear advantage: if we take the courtroom online, it could promote greater access to justice by freeing up resources in our underfunded legal system. Hutchison worries, though, that virtual trials will undermine advocacy. “Under normal circumstances,” he says, “very few people would ever pick a video trial over a live one.” Still, with the courts suspended and hopelessly backlogged, the alternative — waiting indefinitely, with your client in a state of legal limbo — is perhaps even less palatable. “In some cases,” Hutchison acknowledges, “a virtual trial is better than no trial.” In June, Danielle Robitaille, a partner at Henein Hutchison, conducted Ontario’s first virtual criminal trial, after first getting consent from her client, the Crown and the judge. The preparations were at times surreal: at one point, the police brought a Bible to a witness who wanted to swear on the Good Book but didn’t own a copy. On the Monday when the trial was due to begin, Robitaille went to the office and put a sign outside the small boardroom telling colleagues to keep out. (The office was still open.) Inside the room, Robitaille had three monitors — one trained on the witness, one focused on everybody else and another with her documents and materials. When she needed a private word with her client, she met him in a virtual breakout room. — Danielle Robitaille, Henein Hutchison LLP It was a unique experiment, with both benefits and drawbacks. “In virtual examinations,” she says, “you’re On Fridays at Henein Hutchison, once work wraps up, the employnot walking around, so you don’t have a minute to catch your ees often gather on the rooftop patio above the office for drinks and breath or think through your next line of questioning.” Still, she banter. After the first week of lockdown, the partners sent out wine enjoyed being able to drink coffee on the job, an act that is norand cheese to the home of each staff member and invited them to mally verboten in court. That wasn’t the only liberty she took. attend a virtual Zoom meeting instead. They spoke candidly about “Although I was more tired at the end of the day than I usually the challenges to come. Yes, these were unpredictable times, but would be,” she says, “my feet hurt much less. I wore running shoes the firm was committed to keeping all of its lawyers employed. throughout the entire trial.” There would be none of the nasty surprises — like out-of-the-blue pay cuts or layoffs announced over email — that people at some At Henein Hutchison, the staff misses the in-person office other firms had experienced. dynamic, but they have embraced Zoom as the next best thing. To facilitate working from home, the partners expedited an The lawyers still meet, virtually, each Friday, for an event now initiative already underway to digitize the firm’s documents. They titled “Drinks on the Rooftop (but Not).” The conversations have also cut office expenses, such as cleaning fees and work lunches. been lively and playfully legalistic. A chat about the true-crime Each Wednesday morning, either Henein or Hutchison held series Tiger King quickly progressed — or, if you prefer, devolved — remote office hours: anybody at the firm could pop into the Zoom into a debate over how the case would play out in Canada. meeting and seek advice on a case. “We used the technology as (Although no consensus was reached, the lawyers posited that, much as possible,” says Hutchison, “to replicate the open work under our country’s relatively tough animal-cruelty laws, the rival culture we had before lockdown.” zookeepers would have been put out of business long before their And it went well, although lawyer-client dynamics still had their feud reached its climax.) occasional awkward moments. Mark Strychar-Bodnar, an associA few weeks later, the lawyers had a Zoom debate about (you ate at the firm, remembers lecturing a client, prior to a virtual guessed it) the merits of making your own sourdough. Maya mediation, on the importance of video-conferencing etiquette. Borooah, an associate, recalls that the office was divided. In one The plan for the mediation was to have two communication chancamp were the pragmatists, like her, who insisted that homemade nels: a Zoom meeting with everybody on it, as well as a separate sourdough wasn’t worth the time. On the other side were the meeting, where the client and counsel could speak privately while idealists. “They argued that the satisfaction of making the bread the proceedings were underway. “Be careful when making conficompensated for any deficiencies in taste,” says Borooah. She condential statements,” Strychar-Bodnar warned. “Make sure the cedes that both sides had a point. True, some things in life really Zoom mute is on when you think it’s on.” About half an hour into are more meaningful if you’re physically present for them. Then the meeting, he moved into a private Zoom breakout room with again, in a world of constraints, you can’t be dogmatic. Sometimes the client and his co-counsel. While he was in this meeting, he you have to settle for what’s most expedient.

“ I wore running shoes throughout the entire trial.”

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Debrief life beyond the law

“You can never really tell if someone is looking at you or typing an email.” Mark Polley on how difficult it can be to practise law on Zoom p.26

Naomi Loewith and her three sons hang out with the family’s new puppy in their backyard

THE INSIDER

Paw patrol One month into the pandemic, Naomi Loewith’s family welcomed an energetic puppy into their home by Danielle Groen photography by Brendan George Ko

The cockapoo — two pounds, eight weeks old, pure black and

cloud-fluffy — arrived in mid-April on a mission: to bring joy to a family under lockdown. “My husband and I had talked about getting a puppy for ages,” says Naomi Loewith, legal counsel and director of strategic partnerships at the litigation funder Omni Bridgeway. “But he’s a lawyer as well, and we were cautious about the time commitment to train one.” Then the pandemic hit and she figured, well, they had the time; her three sons, ages five, seven and nine, could also do with a bit of playful distraction. The puppy, named Jack, has been happy to oblige. The four have even devised a system for sharing Lego: the boys reach for the smaller pieces, the better for building, while Jack sticks to the larger pieces, the better for gnawing. “Jack’s something happy for us to focus on,” says Loewith. “He lets us be in the moment.”

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Debrief

➊ BEST PICTURE

➋

Screen share An inside look at how Toronto lawyers have moved their practices onto Zoom by Leah Rumack photography by Rachel Wine

Once the coronavirus pandemic forced the world into lockdown,

lawyers across the city started to conduct team meetings and client consultations over Zoom. The transition was not so simple. Video calls would descend into chaos as children (or pets) screamed in the background. Technical problems caused constant delays. And the profession’s dress code was tossed aside, since it’s clearly absurd to wear a full suit in the kitchen. To capture this bizarre moment in time, we spoke to four lawyers about how they’re doing, what they’ve been wearing and how they’ve decorated their Zoom-ready “offices.”

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1. Peter Aprile Founder, Counter Tax Lawyers

Peter Aprile is a tax litigator, meaning he likes order. A few days into the lockdown, he started to play the Star Wars theme at 8:50 a.m. each weekday to summon his eight-year-old daughter and seven-year-old son to their homeschool lessons. Aprile did the morning shift, and his wife took the afternoon. In mid-June, help arrived. The parents brought a family friend (who’s also in teachers’ college) into their bubble, so she could watch the kids during the day. Aprile was well prepared to take his practice onto Zoom. “Our work has always been some portion remote and Zoom-based,” says the founder of Counter Tax Lawyers. “So we’re closer to business as usual than most.” His work-at-home outfit has been consistent. “I wear the same thing every day: a black T-shirt, black sweat top and a black pair of jeans.” His children have enjoyed appearing on video calls. His son, for instance, told one of Aprile’s colleagues a particularly embarrassing story. “In Japan, my wife and I had got ramen at this hole in the wall,” says Aprile. After leaving the restaurant, they both (to be blunt) lost control of their bow els on the street. “My kid finds this story hilarious! And the person on the other side is having a great time, so what do you do?”

Debrief

➌

➍ 2. Teagan Markin Associate, Borden Ladner Gervais LLP

It’s probably not surprising that a lawyer whose Twitter bio reads “Cats, feminism, law, the Bachelor” would have a (sometimes) naughty kitty as a pandemic officemate in her downtown condo. In May, Teagan Markin, a second-year associate at Borden Ladner Gervais, tweeted: “While I was on a video call today my cat looked me dead in the eyes and then tried to take a bite out of my succulent. What he didn’t count on was my low commitment to professionalism on video calls. The succulent is fine.” Markin’s cat, Stanley, also helps her write legal memos by lying in front of the keyboard. “He hasn’t passed the bar, but he only gives legal information, not legal advice,” she says. “So it’s okay.” At this point, Stanley hasn’t yet bombed any business calls. “But every Friday some of the associates will have Zoom drinks,” says Markin, “and he’s definitely made some appearances there.” On the topic of wardrobe, Markin is adamant. “I’m not suiting up, that’s for sure!” she says. “If it’s a client, I usually wear a classic sweater or my go-to grey turtleneck. Today, I had a video call with a group of counsel, and I wore my Dalhousie Law baseball T-shirt. They were also in T-shirts and sweatshirts, so I calculated correctly.”

3. Mark Polley

Partner, Polley Faith LLP

Mark Polley’s new legal assistant is enthusiastic and hardworking. There’s just one problem: she only writes in block letters. With crayon. “My six-year-old transcribes letters for me,” says Polley, a partner at Polley Faith LLP, of Mae, his new officemate. “She also loves popping into the frame of my Zoom calls and waving, but people have been pretty understanding.” He says that while there have been a few hiccups during the lockdown — read: epic kid meltdowns in the background — working from home with his family of five has been pretty manageable. (He and his wife also have a 12-year-old daughter and a 13-year-old son.) “I brought my stand-up desk from the office and put it in our sunroom,” says Polley. “It’s quite airy and nice in there.” The biggest challenge of communicating on Zoom, he says, is missing out on the IRL cues that he usually relies on when he’s working with clients. “We work so hard as litigators to pay attention, maintain eye contact and read body language,” explains Polley. “Suddenly, a lot of that is thrown off. You can never really tell if someone is looking at you or typing an email.”

4. Charlene Theodore Counsel, Ontario English Catholic Teachers’ Association

When the world shut down, Charlene Theodore, an in-house counsel with the Ontario English Catholic Teachers’ Association — and, as of this month, the president of the Ontario Bar Association — was so bogged down in work that she could hardly think about anything else. So she didn’t put much effort into her home-office setup. “At first, it was just: dining room table, laptop, phone and go go go go,” says Theodore, who lives on her own in a onebedroom condo. But after she realized she was going to be under lockdown for a while, she decided she could do better. She got a desk pad to protect her custom-made table from spills, put out some colourful pen holders and flowers and added some of her favourite trinkets. Since her workplace doesn’t have an overly formal dress code, Theodore has been leaning into the comfort quotient while working from home. So what’s her favourite video-call outfit? “I have a pink dashiki, which is a tunic-style garment in a traditional African print, that’s been on repeat,” she says. “I love that it feels like me, and it’s bright so it makes me feel cheerful. But it’s not something I’d ever wear to the office.”

PRECEDENTMAGAZINE.COM 27

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Debrief

FIRST PERSON

System failure The pandemic has overwhelmed the legal job market. How can a culture built on perfectionism make sense of such a sudden setback? by Cameron Bryant illustration by Jeannie Phan

Early in law school, I remember getting an

exam back with, let’s say, a less-than-desirable grade. I was mortified. Throughout my undergrad, I’d never earned such a mark. In that moment, I wondered if law school was really the place for me. Because of the tiniest blip on my academic record, I started to

PRECEDENT FALL 2020

question my identity as a whole. This, more than the grade (which I brought up to an A by the end of the course), was the problem. My experience is typical. Lawyers are creatures of perfectionism. Our profession demands exactitude and attention to detail, qualities that benefit our clients and fuel our work ethic. But we often hold ourselves to absurd standards. The smallest mistakes can give rise to feelings of shame and failure that are wildly out of proportion to reality. In normal times, this tendency puts our mental health at risk. Today, nothing is normal. We are, of course, still in the midst of a pandemic. Uncertainty about the future persists. So, too, does our social isolation. And existential dread continues to creep into our minds — at least once a week, for me — about the state of the world. The pandemic has also crushed the legal economy. In April, some of Toronto’s largest law firms started to announce layoffs and salary cuts. Beyond the world of Big Law, there are doubtless hundreds of exam-

ples of lawyers being let go at small to midsized firms, of further salary cuts and of drops in business and billable hours. As perfectionists, we are ill equipped to handle this sudden shock. Those who are affected will, inevitably, struggle with deep feelings of inferiority. If you have recently experienced a career setback, there is no simple cure that will make everything better. But the first step is to pause. Although you might feel like a terrible lawyer who is destined for a life of failure, this is not the case. The pandemic is not your fault, nor can you control its consequences. And you shouldn’t lose sight of that fact. You should, on the other hand, reach out to your network. Not necessarily to ask for a job, but to make meaningful connections. The wisdom of senior practitioners can be particularly helpful. Most lawyers who have been practising for a while have, at some point, encountered a professional roadblock. Maybe they weren’t hired back after articling. Maybe they worked at a firm that went under. At the very least, they will remember how the profession recovered in the wake of previous economic downturns. Seek out these conversations. The more open you are with your friends and colleagues, the more you will find that feelings of embarrassment and failure — which are unhelpful to begin with — start to disappear from your mind. Though my own job has been stable, uncertainty about the future has certainly led to an increase in anxiety. Having a healthy diversion has been critical. Every day, my partner and I go for a walk after our workdays and come home to cook. We use these opportunities to relax and take our minds off of our daily stressors and the pandemic at large. Look for your own ways to decompress — such as taking a socialmedia break and exercising — so that you can ease the burden of this difficult time. Finally, if you are plagued by stubborn feelings of self-doubt, speak to a mentalhealth professional. This is a great way to get a direct, unbiased view of your situation, and the cost is often covered under the Law Society of Ontario’s member-assistance program. Learning how to set aside our perfectionism is critical to getting through difficult periods, both now and throughout the rest of our lives. Cameron Bryant is a lawyer and lease negotiator with Cirrus Consulting Group in Toronto. He writes about fashion and legal culture for Precedent.

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