ADR, Civil Litigation

'Good old days' bring nostalgia, but practice of law better in 2018

By AdvocateDaily.com Staff

While some may refer to the legal profession of the 1960s and 70s as the “good old days,” the changes that have taken place since that time have led to an “infinitely better” practice of law, Toronto lawyer and arbitrator Earl Cherniak writes in the Summer 2018 Advocates’ Journal.

Upon his call to the bar of Ontario in 1960, says Cherniak, partner with Lerners LLP, there were 5000 lawyers in Ontario, just about evenly divided between Toronto and the rest of the province.

“About 200 lawyers were called to the bar with me in 1960 and five were women. No LSAT was required for entry to law school, only a recognized university degree and about $500 for tuition to enrol in Osgoode Hall Law School, on the grounds of Osgoode Hall. Students could and did fail,” he says.

Trials were also very different in the 1960s, he explains.

In addition to there being no computers, faxes, photocopiers or voicemail at the time, Cherniak says printed casebooks were unknown for argument in court, as was highlighting text and redlining drafts. An exchange of correspondence took about a week.

“In magistrate’s (now provincial) court and weekly motion courts, cases and motions were heard in the order of the seniority of counsel, which meant that the CLE for young lawyers consisted of watching their seniors in action, where we learned what not to do as much as how to do it. Crown attorneys and judges ate lunch together, while the criminal bar sat at other tables and looked on. Disclosure depended on the whim of the crown attorney,” he adds.

As there were no trials, all of July and August actually meant vacation, as discoveries could only be held on consent and only urgent motions could be heard.

Many lawyers in the litigation bar in the 1960s practised in the civil, criminal and family courts, says Cherniak, and were in more than one in the same day, or conducting discoveries. Trials in that period were short — two or three days at most.

“Specialization, except in the insurance defence bar, was almost unknown and many eminent counsel, especially in the county towns, did solicitors’ work as well. Discovery, and especially production, were nothing like today. ‘Trial by ambush’ was not uncommon.”

In addition, he writes, matrimonial law was very different.

“A deserted wife could sue for interim alimony, but the test was a sum to allow her to live ‘quietly and in retirement’, which meant a pittance and was not available to a wife guilty of adultery, irrespective of the conduct of the husband.

“Divorces were granted only on proof of adultery or cruelty and warnings had to be given to each spouse in a trial about collusion and connivance in the proof of adultery, which if present would prevent any relief being granted. Uncontested divorce trials before some judges took five minutes or less, some over an hour.”

What passed for diversity in those days, writes Cherniak, was whether lawyers were Protestant, Catholic or Jewish, “and many firms had no diversity in that sense at all.”

“There were almost no legal organizations. In Toronto, the Toronto Lawyers Club did not accept Jews, so they joined the Reading Club. But the Advocates’ Society, founded in 1963, and the county and district law associations accepted all qualified comers,” writes Cherniak.

The first Ontario Jewish Supreme (now Superior) Court judge — Abe Lieff — was appointed in 1963 and until Mabel Van Camp was appointed in 1971, at the same time as the second Jewish judge, Mayer Lerner, all Supreme Court and most lower court judges were older and male, he says.

“Supreme Court judges went on circuit, and some judges preferred certain county towns, not always to the pleasure of the local practicing bar. The Ontario Court of Appeal in the 1960s was composed of some very good, but very miserable, judges who made life exceedingly difficult for young lawyers who appeared before them, with the result that many never returned after one unhappy experience in that court. A few of us, such as John Sopinka, Claude Thompson, Stan Fisher, John Brunner, Lorne Morphy, Doug Laidlaw and me were gluttons for punishment and kept coming back."

"There were exceptions even then. Ken Morden, John Morden’s father, was one, as was Chief Justice Dana Porter, Julian Porter’s father. Things began to change in the early 1970s, with the appointment of the likes of John Brooke, Syd Robins and Charlie Dubin."

As Cherniak notes, he was fortunate to have the opportunity to learn his craft in those days, “because the kind of experience that I and my contemporaries had is not possible today, for countless reasons, not least of which is economic.”

At the time, however, he says the number of female lawyers was “vanishingly small,” and with very few exceptions, most did not practice at the litigation bar.

“… When I reflect upon the changes that have taken place in the profession since those days, for instance, the strides that female lawyers have made generally and in litigation and on the bench, I cannot help but think back on the waste of talent in my generation and that of my mother.

“The women I grew up with – my sisters, my mother and their friends – were no less talented and capable than the women I interact with today, but it didn’t occur to many of them that law (and some other professions) was an option. So while I look back with nostalgia on some of the 'good old days', for all its flaws the world we live in now, and the practice of law, in particular, is infinitely better,” writes Cherniak.

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