Leading in Litigation

MELISSA MACKEWN: I thought I was going to be a human rights lawyer all through law school. In fact, the reason I ended up going to Faskens is because I had said I was interested in a secondment to the Human Rights Commission where I went for three months. I did one human rights case in Ontario and decided that it wasn’t what I thought it would be and decided to do commercial work. On the securities side, it happened by accident. I thought it would be quite boring, I had never opened the Securities Act — I thought securities law sounded dead dull, but wanted to get on my feet more and not be in a boardroom looking at documents for 12 hours a day.

I decided to go to the OSC [Ontario Securities Commission] and I found I loved the securities work. It’s the human element — you are dealing with people’s livelihoods and reputations. Even though there is a commercial context to it, there is also someone’s reputation at stake.

ANDREA LAING: I think in an odd way I got into class actions because of being a woman and my family situation. When I started, there really weren’t securities class actions because we didn’t have part 23.1 [of Ontario’s Securities Act], which was the legislation that was brought in in Ontario in 2005 to facilitate securities class actions. I was on maternity leave with my daughter in 2005 and came back and thought “there’s this new legislation . . .” and I started writing about it and letting everyone in my firm know I knew about it and the cases started coming and they had to use me. That’s how I got up to speed in a new area and I’ve done a lot of work in that [practice area]. I think if I hadn’t had time to think about it and ramp back up [after maternity leave], I probably wouldn’t have been able to make the investment to get the expertise.

LINDA PLUMPTON: I think all of our stories are about serendipity. When I think about how I got into competition law, I had two mentors earlier in my career — John Laskin and Kent Thomson — both of whom practised in that area. As I started at the firm, there was a criminal trial under s. 45 of the conspiracy provisions of the Competition Act that was ongoing. We also happened to represent the defendants in the first two price-fixing class actions that were commenced at the cusp of a growing, novel area of practice. I spent a lot of time on those matters. I wouldn’t have predicted when I started that this is where I would have ended up but it took me to the Supreme Court of Canada.

REENA LALJI: If you’re a true litigator, often you don’t think in-house is the place to be. But what’s interesting — at least I find this at CIBC — is the litigators are heavily involved in the litigation. When I came from private practice, I had a very broad, general litigation practice. I really found it helped a lot when I went in-house. I did zero banking litigation even though CIBC was a client and is a client of Gowlings where I was in private practice; I was just never on any of the banking files. But I didn’t find it difficult because it’s not really banking litigation — it is class actions, securities work, regulatory work — a mix of everything and so if you know how to do all of that you can do banking litigation. I do find with our group we are very small compared to the other banks and so whatever comes along comes along and we all share in it. I found it surprisingly rewarding. I remember telling people I’m just going to go in-house for three to four years and will go back to private practice and bring the client. Eight years later, I’m still there and still feeling challenged.

CATHERINE BEAGAN FLOOD: I was very interested in public law. I came to Blakes because Peter Hogg is scholar in residence here and Paul Schabas is here, too. I’ve been very lucky to be able to continue to do some of that work — I still get to write constitutional opinions with Peter Hogg and go to the Supreme Court with him. On the privacy side, when I first started as a litigator, I wasn’t sure if I wanted to stay in private practice or become an academic. I clerked at the Supreme Court of Canada, I did a masters degree and Osgoode tried to recruit me when I was at Harvard. I told them I wasn’t sure yet that is what I wanted to do, but I taught privacy as an adjunct professor for eight years and started teaching when PIPEDA came into force in 2000 — so, again, that serendipity of learning a new area of law when no one knew anything about it.

More recently, given the growth in data breaches and how important preparing for those and defending those class actions has become for our clients, what had been giving privacy advice on PIPEDA in 2000 has turned into defending data breach class actions and dealing with cyberattacks — something I never anticipated in 2000, but that marries my interest in privacy and class actions.

INHOUSE: What differences do you think women litigators face compared to male litigators?

MACKEWN: I do a lot of work with traders, investment advisors and most of them tend to be men, although there are women. I have had male clients say to me, “Do you think you can be tough enough on this?” And I think to myself — you clearly do not know me if you are asking me that question. They would never ask a man that. The thing I have decided is the difference between men and women in litigation as a practice area is with men there is a presumption of confidence. They walk into a boardroom at a firm and see the male lawyer and assume the man is smart and has had a successful career. I feel as women you have to prove yourself initially and once you do they realize they have someone who will work harder for them and be more available for them, but you don’t have the presumption of confidence I think that men get the benefit of in litigation. It’s not something I feel I’ve not been able to overcome, but it’s something I’m aware of at the introductory phase of a client relationship.

PLUMPTON: I think there are differences, but I think the balance tips in favour of us in many ways. I think there are more women that you encounter day to day in the litigation practice now, fortunately because of other changes we’ve seen in the judiciary and the client base opposite us.

LAING: Maybe one of the more distinct pressures we face is that we are outward facing — we go into court and we represent and are a proxy for our client and so profile and how you approach the court is very important. As a junior in a litigation practice, you are asking yourself: “What is my style?” You’re looking for role models.

I think one of the changes we’re seeing is there is much more diversity of role models now, even if you look around this table there are many more acceptable ways to be a female litigator than there were 15 years ago. We’re seeing women on the bench who are women we would like to emulate. I think generally it’s getting easier to find your own authentic style without feeling like there are some narrow approaches you have to emulate and that have worked in
the past.

LALJI: I’m a client to external counsel, but I also have internal clients as well and what I find is in our litigation group there are four of us of which three are women so to me that’s fantastic and we’re all quite senior. One of the things I have found is that with in-house positions, I think generally there have historically been more women at junior levels and the senior levels tend to be men. I’m seeing a shift in that and seeing more women in senior roles in legal but in particular in the business. I’m finding at the bank there are fantastic senior women role models. Our CEO is really committed to having more senior women in executive roles and that’s his commitment. I find even with male clients internally, definitely on the trading side, with the investment bankers it’s a bit tougher — they apologize for swearing and I have to remind them I’m a litigator, I’m familiar with the f-bomb.
I find now though that we end up being their go-to people; it doesn’t matter that I’m a woman.

In terms of where I’m the client, in the past I found every time I would go to court as the client I was very aware of the fact of when I’m looking at everyone in the room I’m one of the few, and often one of the only, women in the room, including my own counsel. Over the last eight years, I’ve seen a shift. I don’t select my external counsel because they’re women, I select them because they are the best at what they do and think they can do the best for the bank. What I have found is the team I hire tend to be women or led by women. I often think: “I didn’t do that on purpose, I just picked the best.”

MACKEWN: Do you find they [women] are more prepared for the phone calls and things like that?

LALJI: Generally, yes, but I do it more by email. One thing I find is women are generally much more responsive. The other thing I find dealing with male external counsel is initially they didn’t think they needed to keep me up to date — I would hear, “Don’t worry, we have it under control.” I had one situation where I would follow up with external counsel and they wouldn’t give me updates and in the interim of eight months they brought a motion, lost it, appealed, lost that. . . . I’m providing reports to executives saying everything is in abeyance and [they’ve] been running the file and we haven’t even discussed the strategy. That was the last time that happened. I think men don’t really think they need to engage their clients as much whereas women are quite a bit different. There is more communication and they are more collaborative. They know when they have an in-house counsel they know what
kind of relationship they have with them. They know I’m very involved and have a view on everything.

INHOUSE: Does that perhaps go back to the days when external ran it because in-house would just hand over the file?

PLUMPTON: The old barrister model — give me the brief and let me know when it’s over.

LALJI: Yes, back then, businesses wouldn’t have had litigators in-house. You had the corporate lawyer who could do everything and then farm out the litigation. That’s not happening anymore.

BEAGAN FLOOD: Picking up on something Reena said, I think one thing that has changed since I started is the focus on sponsorship. I was mentored primarily by men who were gender blind who were looking for someone they had confidence in to work on files. I don’t think they were deliberately looking to sponsor or advance or thinking about the importance of diversity and what that added to litigation, whereas I think there is a much more conscious effort by leadership within the business and legal community to ensure that there is sponsorship by men in addition to having a wealth of mentor models, as Andrea mentioned.

LAING: Or senior enough women to be in that wonderful position of being able to be a sponsor for someone. It’s been a challenge as someone who mentors, I think, sometimes to realize there’s only so much at your particular level of seniority that you can do for one of your mentees,  but you realize as you get more senior the possibilities and doors you can open for people. Women can now be sponsors, which hasn’t always been the case.

INHOUSE: Has there been enough done at the firms to provide opportunities to mentor?

LAING: I think not only do you have to encourage women to seriously invest in mentoring and relationships and taking the time to really listen to junior women and open doors for them, you have to reward the women for engaging in that activity. That’s where eyes are starting to open and recognizing the value of women supporting women not just because it’s the right thing to do but also because it’s good for business. It might be that it doesn’t necessarily reflect on numbers on a page, but over the long run, we are seeing that type of investment is allowing us to recoup the investment we are making in our women because they are staying longer.

PLUMPTON: We’ve always benefited from having a fairly strong group of women at the partnership level. I remember joining the firm and the lions were many, but the lions of our practice I was focused on in coming to the firm were Sheila Block and Mary Eberts who were both there doing fantastic work. But in my earlier years of practice, those are not the people I worked with the most, but I think their mere presence was empowering for me. I do think there are more systematic things to be done to build those relationships in a formal way rather than making women reach for it — so establish closer relationships with those people you’re trying emulate and we try to do that. There is much more focus on having women-centred mentoring opportunities in the firm.

INHOUSE:  Melissa, with a smaller firm like yours how do you go about recruiting women?

MACKEWN: My colleagues in my firm and others in different firms see the success you have whether it’s an award from Benchmark or Best Lawyers or Lexpert and I think it encourages them to move forward. I try to be approachable and available and try to keep an eye on women in the firm and if there is anything I can help with.

PLUMPTON: It’s so important — I think junior women look at us and say, “How do you do it?” Sharing with junior women that it’s not always easy — whatever you’re seeing externally — we’re all under the same pressures, this is how we manage it but don’t think we have it all together all the time. I always share my stories about how I don’t have it all together all the time.

LAING: In fact, you have to let them see that not only are you succeeding and being recognized for it but at the same time you have to let them see it’s not a cake walk and we all have bad days. Initially, I was so busy trying to show everyone I knew what I was doing that I realized I was perhaps
creating a façade that was impeding my ability to be a really effective mentor to junior women and in fact the best relationships form when you talk about your bad days.

INHOUSE: Is it still a challenge to keep women in these high-performance roles?

MACKEWN: Yes, and I struggle with this question all the time because I don’t think it will ever change. It is a demanding job. The trick is to know you and your kids will hopefully live a good long life and I say this to the women in my office — my kids are now teenagers and I am so glad I toughed through it. I love my job and find it extremely rewarding and have made wonderful friends in the work I have done. I don’t think you’ll ever eliminate the push and pull from having a demanding job and having a desire to spend time with your family; you’re going to have to make a personal choice.

LAING: I think back when I was going through that crunch period with young children and a busy practice and we just can’t deny it for women and men who are parenting there is a confluence of factors. Everything hits you at the same time — the pressure to make partner is hitting generally around the time you’re struggling with a young family if you’re a parent. I think the challenge for our profession is to find ways to get people through those crunch years. Nothing fazes you once you’ve gone through that period. When you come out of it you’re bullet-proof. And if you have supported them through it they are absolutely unflappable. You can send them to court and they can get yelled at and they don’t care because they’ve been through that period with a client on the phone and a sick baby and husband sick of being home every night with the kids. Sometimes, it’s not about leaning in, it’s just hang in.

MACKEWN: If a woman has to take time off because the kids have the flu or you have to pick them up, I think it registers with colleagues in a way that if a man had to take an afternoon off to pick up their kids because they have a flu it would not register. I don’t think it’s intentional, but it’s just noticed more.

I had both my kids at Faskens and I was told I was the first associate to have a baby and make partner in 2001. I didn’t have any mentors and I didn’t feel one way or the other about it and just went through it, but nobody else was in that position to
offer advice.

INHOUSE: Are there any myths associated with women in litigation?

BEAGAN FLOOD: I think the primary one is the one Melissa mentioned about “Are you going to be tough enough to advocate for me?” I think it’s just a matter of proving yourself in conversation with clients that you are as tough and capable as the men.

LALJI: I definitely felt this myth in private practice eight years ago. I see it a little since I’ve been at the bank, but one is that women in litigation that are on big files are the project managers — they are great organizers.

LAING: Yes, it’s a positive stereotype that I think can hurt us.

LALJI: In private practice, I was lucky to work on high-profile files with high-profile partners, but to my determent, I was really good at the big document-intensive files so I became the go-to litigator to do that and I wanted to be the litigator who was arguing in court because I was good at that, too, but was not getting recognized for that. So that’s one myth. The other one tied to that is when a team of lawyers comes in on one side and if there is a woman there is an assumption the woman is not the lead counsel. The automatic assumption is that the man is. I still see that.

LAING: At a certain point, I just started telling everyone how old I am because I think people don’t want to think about it or don’t know. There’s a phrase used in litigation that gets my back up — it’s “grey hair.” “We need to put grey hair on it.”  I think sometimes we have to go around telling people how old we are.

MACKEWN: Someone called me a year ago about a market manipulation case they wanted external counsel on and they asked me questions about it. I think I’ve done more market manipulation cases than virtually anybody because I worked at IIROC [Investment Industry Regulatory Organization of Canada] and we did that work and at the OSC. At the end of the conversation, this guy said: “I think maybe you’re a bit too young because this happened in 1999.” I thought, I am 45 years old — you would never say “you’re too young” to a 45-year-old man. I know this area and am not unconfident in my skills in this particular area. He wanted grey hair. It didn’t matter if they had ever looked at a trading blotter before.

LAING: Sometimes, grey hair is just code for man.

PLUMPTON: The only myth I see that is the inverse of the “You’re not tough enough” which is the “You’re too tough” myth. For junior women, I think they get a lot of “You’re not projecting enough confidence, you’re not tough enough. You’re uptalking.” For senior women, there is a perception you’re being too tough or strident and maybe you should smile more and maybe you’re not projecting enough warmth, you’re scaring people. You’re too sharp-edged. A lot of characteristics being described are ones that are commended in men about strength and confidence in leadership. I think women can achieve leadership roles projecting those qualities,  but they are still not welcomed. It’s the whole likeability factor. Smile more  — the judges will want to see more smiling from you. I’m quite sure senior men aren’t being told to smile more.

MACKEWN: I think they do equate those things with more emotional language. If you’re tough, you’re bitchy; if you’re enthusiastic, you’re histrionic. For example, senior [male] people who are known for being enthusiastic in their arguments; if a woman does that, it’s considered shrill or shrieking or impassioned about your argument.

PLUMPTON: I think you want to have lots of tools in your tool belt, but at the end of the day, you have to get personally comfortable with your own style.