Law Times

Law times • august 25 / SEPTEMBER 1, 2008 Full bench means work gets done ation convention in Quebec last week. She had reason. It is heart-warming to see the C top judge of the highest court in the land looking so pleased. Her court had shown earlier this summer what it can do when it has the resources. It came up with a ruling on the $35-billion BCE Inc., takeover in something like three weeks. Speedy. No other way to say it. That put those whiners in their place. She was pleased to tell the assembled lawyers all about it. That's why it was worth listening when she said that she wants Prime Minister Stephen Harper and Jus- tice Minister Rob Nicholson to hurry up and appoint the ninth and final justice to the bench of the Su- preme Court of Canada before the heavy workload in October. When former justice Michel Bastarache retired back in June, he said the same thing. A full bench means the court gets things done. Now we're almost into September and we still don't have a replacement for Bastarache. Harper has been stall- ing. Don't blame him too much. Filling a Supreme Court vacancy is a lot tougher than picking a cabinet. All kinds of factors come into play. First, there is geography. There are nine judges on the bench, three from Ontario, three from Quebec, two from the West, and one from Atlantic Canada. Basta- rache was from New Brunswick, so Harper's choice has to come from Atlantic Canada. Everybody else in Canada? Forget about it. Then there has to be a balance, male and female, luckily right now it's four women, four men, so either gender is not a factor. In the U.S. the big issue is whether a Supreme Court nom- inee is a progressive or a conserva- tive. We don't tear ourselves apart like that in Canada. We put the emphasis on skills, not ideology. Bastarache was an expert on corporate and commer- cial law (he used to run a major insurance company) and an expert on minority rights issues. And the Constitution and the Charter. He had it all, and worked tirelessly. They called him "the little workhorse." He wasn't a big talk- er, but when you work that hard you don't need to be. Bastarache was bilingual. French or English. Bring it on. That's Harper's problem. Every- body on the bench is bilingual except for one judge. He's Justice Marshall Rothstein of Manitoba, appointed by Harper in 2006, Harper's only Supreme Court ap- pointment so far. The fear is that Harper will appoint another uni- lingual anglophone. Right now at the court, every- hief Justice Beverley Mc- Lachlin was beaming at the Canadian Bar Associ- The Hill By Richard Cleroux thing in French has to be trans- lated for Rothstein. So he sits on fewer cases in French than he might otherwise. That reduces the court down to eight justices. But eight is a bad number for the bench. What if there was a tie? What do they do, go back and de- liberate more, like a jury? Or flip a coin? If so, there goes credibility. So they use seven justices. Now we are down to seven. The work- load is increasing. So are the delays. French-language jurists asso- ciations across Canada have said publicly and repeatedly they want a bilingual appointment. So has Parliament's official languages committee, Commissioner for Official Languages Graham Fra- ser, and various legal and judicial bodies, and dozens of francophone organizations. It's an issue. Article 16 of the Official Lan- guages Act says all judges in fed- eral courts have to be bilingual. There are more than 1,100. There's an exception. Supreme Court justices can be unilingual. Strange that an officially bilingual country that can find 1,100 bilin- gual federal judges can't find nine more for the highest court. Justice John Major, who retired from the Supreme Court three years ago, said he didn't speak French but the translation services at the court were excellent and bi- lingualism should not be a criter- ion for appointment. Fraser replied: "What is the ability of a unilingual, anglophone judge to pass judgment on the quality of translation services?" The word came out on Parlia- ment Hill earlier this year that Harper would appoint a woman from Newfoundland. The province has never had a Supreme Court justice. It would be five-to-four for women on the bench for the first time. Then it came out that that she is not bilingual. There are plenty of good can- didates in New Brunswick, in- cluding Chief Justice Ernest Dra- peau. It's Canada's only bilingual province, but why not give it to another province this time? The name of bilingual Justice Thomas Cromwell of Nova Scotia often comes up. Francophone Acad- ians are pushing for him. Perhaps Harper is listening. Then again, he may stick with his original choice. LT Richard Cleroux is an Ottawa free- lance reporter and columnist on Par- liament Hill. His e-mail address is richardcleroux@rogers.com. COMMENT PAGE 7 Finding the right balance A ccording to what I have read, the legal profession does not have a particularly high level of job satisfaction. Finding the right balance for our col- leagues in the context of the economic realities associated with running a business is a difficult thing to do. And that low level of job satis- faction, it would seem, extends from the top to the bottom. Associates frequently talk about the extra- ordinary demands placed upon them by firms almost from the commencement of their ten- ure. Most of us have encoun- tered the challenge of properly communicating to our associ- ates our expectations, particu- larly in the context of our cli- ents' ever-increasing demands. Given the cost of training an associate, given the significant financial investment that law firms must make in their young lawyers, years before there is any prospect of their being profitable, it is not surprising that law firms are demanding of their associates. Associates are unlikely to accept a salary reduction or give up the perks of their position in connec- tion with their demanding jobs. Nonetheless, they do still seem to harbour some re- sentment of those demands. Partners have a different set of demands. The number of things partners need to be good at in their professional lives is astounding — first class lawyers, business gener- ators, collections agents, word processors, researchers, educa- tors, mentors, firm adminis- trators, and activists, to name but some of the functions that many of us perform. And the legal profession seems to attract people who are used to trying to meet everyone's highest expectations. We are not renowned for having set reasonable expectations of ourselves or of each other. So, how do we improve law- yers' job satisfaction in light of all of these challenges? At the end of the day, most law firms are remarkably similar in what they have to offer to their law- yers; the prospect of practising law in a relatively hospitable environment for clients whose problems are generally interest- ing. And most law firms also have in common the basic profit principle — they must get an extraordinary number of billable hours from their professionals at an hourly rate that more than covers the high overhead and related costs associated with practis- ing law in circumstances in which our client base is in- creasingly discriminating and cost-conscious. We are easily distinguished from one another by our size, the number of offices that we have, and the range of the services that we offer to our clients. These are important differences that will affect www.lawtimesnews.com who is interested in being as- sociated with the firm, but perhaps not overall job satis- faction amongst the lawyers at the firm. Apart from these obvious differences, the factors that distinguish one firm from an- other, and its lawyers' level of job satisfaction from that at Doing By Lisa Borsook other firms, are subtle. Over and over you read that most lawyers want to be part of an enterprise whose core values can be articulated, and whose actions resonate with them. And, if you give them the op- portunity to participate in the formulation, articulation, and implementation of those core values, while earning a fair income, then job satisfaction ought to be the result. The challenge is to find a way to articulate and implement a strategic vision for the firm — one that marries the firm's culture with its partners' profit expectations and one that will resonate with its employees, associates, and partners. What are the factors that firms consider in plotting their strategy? (1) Clients. Either focus- ing on the clients that fit the firm's service providers or en- deavouring to enhance the firm's client base by changing the services it provides. (2) Sophistication. The theory goes that the more so- phisticated the firm's services, the more likely it is that the firm's services will be attractive to a broader range of clients and can be charged out at a higher hourly rate (or by using an alternative pricing model that will nonetheless increase profitability). Sophistication in services can be achieved in a variety of ways — but primar- ily by increasing the number and quality of lawyers practis- ing in a particular practice area. It goes without saying that a firm's strategy may involve lack of sophistication — but that takes us back to strategy No. 1 above. (3) Practice management. Allocating resources to prac- tice areas that have the great- est potential to generate fees for the greatest number of lawyers in the firm. (4) Firm culture. This usu- ally involves striking the bal- ance that works for the firm amongst various competing factors — firm profitability, commitment to the profes- sion, lifestyle choices, etc. But, in the words of Henry Ford, "You can't build a repu- tation on what you are going to do." And we all know that all change involves disruption, even if it is change for the bet- ter. So, having selected a strat- egy, or some combination of Business factors to comprise the firm's strategy, there are at least two difficult challenges that im- mediately arise. The first is building consen- sus. It goes without saying that you can't please all the people all the time. But if there is transparency in decision-mak- ing, and a clear articulation of what underlies the decisions that are being made and how the day- to-day decisions under- pin the firm's strategy, then it may be easier to make progress. The other chal- lenge is, of course, implementing the strategy. By way of example, if the strategy centres around client base, then a firm may have to commit to a marketing pro- gram, to improve the firm's profile and refine its image. Charting out that market- ing program, articulating it to the firm so that the firm's members can articulate it to others, gaining acceptance of the costs associated with it, and implementing the mar- keting program — these are time-consuming processes. The firm also has to ensure that its lawyers are committed to being part of that strategy, and the firm's compensation formula must reward behav- iour that is fundamental to the implementation of its strategy. If growing/enhan- cing the firm's client base is the strategy, then rewarding client origination is, logically, a fundamental component of that strategy. Creating a system for re- warding client origination can be complicated — how much emphasis is to be placed, how to avoid duplicating compen- sation for a single set of fees, and sunset provisions to inhibit complacency. What a tangled web we weave. And, of course, those lawyers who mine the files, who improve on existing client relationships, need to be recognized as well. My firm recently launched its new web site. This event was the culmination of a three- year process, which started with an analysis of our firm's business and the development of a strategy for our firm that focuses on what we have now articulated as our core areas of strength. A web site, like any other communications tool, is not a substitute for de- veloping a comprehensive firm strategy to build allegiance, camaraderie, and job satisfac- tion. However, it did assist all of us in telling our story in a unique way, so that our clients understand our strengths and we understand what binds us together better. LT Lisa Borsook is the managing partner of WeirFoulds LLP, a Toronto law firm specializing in litigation, corporate, property, and government law. She also chairs the firm's leasing practice group and can be reached at lborsook@weirfoulds.com.

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