Month: May 2013

Time For the Profession to Talk About Depression

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Darryl Singer is a lawyer well-known to paralegals for his effective CPD presentations. He shares his knowledge of assistance available to legal professionals who are coping with issues such as depression.

In any given year, according to Statistics Canada, approximately 5% of the population will experience a major episode of depression. Almost 15% of us will suffer from such an illness at some point in our lives.

According to the Canadian Medical Association, depression is the fastest rising medical diagnosis in Canada and accounts for over 11 million doctor visits a year. Add to this burden on our system the lost work productivity and it is clear depression is an issue that needs to be addressed as a society at the macro level.

However, on a micro level, the legal profession is even worse off. It is estimated by some studies that lawyers will suffer depression at three times the rate of the population at large, yet are far less likely to seek treatment for it.

Although the studies deal specifically with lawyers, there is every reason to assume the statistics either do or eventually will apply to paralegals. Since paralegals are now Law Society licensees, they face the same professional, business, and personal pressures attributed to lawyers. So for the balance of this article I will refer to lawyers and paralegals simply as legal professionals or licensees.

High Expectations, Competing Demands

I suspect the reason for increased incidences of depression amongst legal professionals is because we are entrusted with our clients’ most significant personal and business problems, sometimes including their very liberty or financial well being. Their problems become our problems.

Then there are the expectations we have of a particular lifestyle, having invested much time, money and effort to attain our Law Society licence; the tangential expectations of our financial success by others in our lives based on some perceived “status”; the very real pressures generating business; doing the work generated in a timely manner; billing and collecting on that work; long hours away from family and friends; the increasing expectation with technological advances that we must always be available and that everything needs to be done yesterday.

And this is for those of us who are for the most part successful in our career. For others, particularly at either end of the experience spectrum, there are more basic issues, like even finding work in the first place or phasing out of the only work you have ever known (often not by choice).

Then there are the challenges unique to those who litigate, as opposed to those members of the profession whose work does not require them to attend court or tribunals.

Litigators of all experience levels and specialties must navigate the course of a file with greater burdens than ever — in addition to the problems enumerated above, they must also struggle with systemic delays (which clients do not understand and for which the client will inevitably blame the legal professional); an economy that makes the cost of running a practice more expensive than at any other time while at the same time making it more difficult to get paid; clients more aware about their ability to report you to the LSUC or file a claim with your negligence insurer; and a constantly increasingly lack of civility amongst members of the profession.

The most surprising thing about the recent statistics is that the numbers are not higher.

Far-reaching Consequences

I regularly defend lawyers and paralegals at Law Society discipline hearings through the Advocates’ Society’s excellent and much needed volunteer duty counsel program. It has been my experience, and that of many of my colleagues on the duty counsel roster, that a disproportionate number of licensee defendants in these disciplinary proceedings suffered from some form of mental health issue, such as depression or anxiety. Most did not seek any treatment or assistance of any kind until after they had run sufficiently afoul of the Rules of Professional Conduct (or worse).

Note: While I use the word depression in this article because it references the particular statistics set out herein, depression is intended as an all encompassing term that also includes anxiety and panic attacks, debilitating stress headaches, other psychosomatic illnesses as well as other types of mental health issues.

It is also worth noting that mental health issues often go hand in hand with some sort of addiction or substance abuse. Often the effects of the addiction on one’s life and psyche lead to depression, while at other times the depression results in some form of self-medication which in turn leads to addiction. In many instances the depression and the self-destructive behavior run hand-in-hand, and it is virtually indistinguishable where one stops and the other begins.

The potential to cause costly and often irreparable harm, when our own mental health issues prevent us from dealing with both our clients’ matters and our law practices timely and appropriately, cannot be overstated. Yet the fear of “coming out” as someone suffering from depression is terrifying to most of us.

I remember thinking when I was suffering some years ago, “These people trust me to solve their problems and I can’t even handle my own life! What will everyone think of me? My clients, my colleagues, my sources of referral? Will they all turn against me, blacklist me, be afraid to deal with me? Will the Law Society get involved?” This is what is going through the minds of thousands of legal professionals at this very moment.

Paradigm Changes Needed

As a profession, we need to recognize this problem and deal with it in terms of education, compassion, and a change in mindset about how we view ourselves as members of the Law Society.

This has to start with the schools, the Law Society, the large firms, and the most senior and successful members of the profession We need to pay more than lip service to the concept of work/life balance, must accept a new economic paradigm, and learn to see our jobs as an integral part of our lives but not as the be all and end all.

Most importantly, the stigma of depression needs to be lifted. It is time for all those of us who have suffered, overcome our difficulties and thrived, to “come out” for the benefit of those still suffering in silence. One person going without help will result in deleterious effects for many others beyond just that practitioner, and ultimately our profession’s failure to address the issue will in the long run hurt both our public image and our ability to self-govern.

So what exactly needs to be done? We need to educate the profession, starting during school, that depression is not a barrier to a successful career if it is treated or managed. The message must be disseminated to the furthest reaches of the profession that those who seek help will not automatically face disciplinary action either by their employer or the Law Society. Programs like OLAP and the LSUC’s current Member Assistance Program through Homewood must continue to be funded, have a peer counseling component, and guarantee confidentiality. And such programs must ensure that members who seek help receive the best available care in a timely fashion.

Most importantly, the message from on high needs to be that asking for help demonstrates strength of character rather than weakness of will.

Darryl Singer is a Toronto litigator and peer counsellor with the Ontario Lawyers’ Assistance Program (OLAP).

by Elizabeth Published on Paralegal Scope Magazine

Anatomy of a Case

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A pink monkey, a mock trial gone sideways, and plain talk from a retired deputy judge were among the surprises during a CPD event at North York Central library, May 17.

Presented by CPD On-time and sponsored in part by Tripemco Insurance, Anatomy of a Case brought together just over 60 participants, both in-person and online, via webinar.

Recently retired Deputy Judge Allan Mintz began the evening with provocative advice for paralegals. Mintz prefaced his effective advocacy talk with a warning that anyone who is easily offended may not be receptive to his comments.

Drawing on some 50 years of legal experience, Mintz said not all lawyers, or paralegals, have achieved the status of “advocate.”

“Advocacy has nothing to do with smiling and being compliant. Advocates must passionately, forcefully and authoritatively present submissions,” he said, and held forth on his opinion of the way paralegals introduce themselves in court.

“I cannot understand why paralegals indicate that they are licensed by the law society,” he said.

“There are no unlicensed paralegals. The suggestion that, because you are licensed by the Law Society, creates a new privileged category is offensive to every lawyer, including deputies who have struggled to gain some recognition through hard work, particularly if there is a deficiency in your knowledge of the law. Personally, I find the practise offensive and so do many other deputies.”
Understand the Case Law

Mintz implores paralegals to make better use of their fellow licensees and law students, who have had the benefit of more formal legal education and training than paralegals.

“Asking another paralegal with the same absence of fundamental knowledge of the law is a useless exercise,” Mintz said. Paralegals failing to use legal decisions adequately is a source of great frustration to many deputy judges. “The deputy sitting on your case is a legally trained individual who may not be receptive to anyone who either does not know the relevant law or states it incorrectly. Do not enrich yourself with legal knowledge and you will never reach the level of a persuasive advocate. I know this is a harsh reality, but it is reality.”

Mintz suggests paralegals pool their resources to obtain legal opinions from lawyers or articling students.

To “beat the other side” or “win at any cost” is not the proper role of an effective advocate, he noted; it is to assist the judge. Mintz said this is another area in which paralegals can improve.

“You’d be surprised how often I indicated that a paralegal had proved liability on the required standard, but failed to prove any damages,” for example. “If at the beginning you are aware of all the issues you must prove, including damages and referred to it, you won’t fall into this trap. The essential tools you have as an advocate are common sense, rational thinking and judicial decisions that support your submissions.”

Effective Advocacy

Mintz suggests creating a “persuasive, rational road map” when advocating, with attention to detail and a deep understanding of all relevant case law. He provided specific advocacy tips, including how to speak effectively on a matter by being prepared, brief, respectful and receptive to the justice, while focusing on only the relevant issues and evidence required for a “rational axis” of persuasion.

Another straightforward speaker at the event, Darryl Singer, interviewed a potential client — his daughter, looking to recover stolen allowance funds from her brother, and then attending on behalf of a friend, Pink Monkey.

Does Pink Monkey Present a Conflict?

Singer, a lawyer with more than 20 years’ experience, used the engaging exchange to effectively demonstrate the professional and ethical obligations paralegals face when interviewing potential clients. He touched on practical business elements of client intake, advising against such things as negotiating retainer fees and “doing a favour for a friend.”

Besides potential liability problems, “It sets you up to devalue what you do,” Singer said. “You’re providing a professional service. They have to respect your skills and knowledge. If you start off with negotiating, you will be negotiating for the whole relationship. It’s not short gain you’re going for. Think about the long game.”

Singer doubled as Deputy Judge for the mock trial which topped-off the evening. Senior paralegals George Brown and Susan Koprich demonstrated advocacy skills in a small claims matter. Relying on legal principles, legislative interpretation and case law, the pair demonstrated that quick thinking and paying close attention to the judge can turn a case around. While the plan was for the Defendant to win, Singer found in favour of the Plaintiff, who was awarded compensation for his Lamborghini repair work.

All-important Pleadings

Brown had spoken about pleadings, which are “the most important documents you will write on behalf of your clients.” He advised writing pleadings as if they will be reviewed by “the toughest judge you know.”

Brown took questions about amending pleadings, from both the attendees and webinar participants. He pointed out that paralegals are held to a higher standard than people who self-represent in court, so it is important to refer to the Rules of the Small Claims Court when crafting pleadings.

Stanley Razenberg, a paralegal at Bergel, Magence LLP, discussed legal research and provided pointers on such tricks as having case law updates sent via email. Maximizing research resources not only boosts one’s knowledge and ability, he said — it is also a great tool for networking.

Don’t Be That Person

Gail Mahadeo, a litigation lawyer specializing in professional liability, spoke about settlement conferences. She said these are “the most important element” of cases and should not be given short-shrift. “It is the first chance all the participants have to be honest,” Mahadeo said, adding that settlement conferences offer the opportunity to get a frank assessment of the case from the “fresh eyes” of a judge, deputy judge or referee.

Co-operation, preparation and asking effective questions at the best time, can propel a case forward and affect cost assessments, Mahadeo said. Ensuring the client has been briefed on courtroom etiquette goes a long way, too. “Don’t be “that person,” she advised. “If you put your cellphone on a chair and it goes off — I hear you.”

The archived webinar and supporting materials will be available at CPD On-Time.

by Elizabeth Published on Paralegal Scope Magazine