Law Times

Page 12 November 30, 2015 • Law Times www.lawtimesnews.com 'Old-fashioned barrister' returns to big law McCarthy alumni show mobility part of a career BY JULIUS MELNITZER For Law Times nlike many other things, the mobility that imbues society today hasn't escaped the legal profession. But people are moving for reasons that differ and are more subtly complex than they were in the past. Law Times interviewed two senior lawyers and a relatively junior practitioner, all of whom started their careers at McCarthy Tétrault LLP, to determine why they are where they find themselves today. MICHAEL BARRACK Michael Barrack spent 28 years at McCarthy Té- trault LLP be- fore moving to Thornton Grout Finnigan LLP, an insolvency bou- tique in Toronto, where he prac- tised for seven years — but he's now returned to the big firm environment at Blake Cas- sels & Graydon LLP in Toronto. "It's probably more about me than about the environment," Barrack says re- garding his latest move. A game-changer for Barrack was his attendance at the Harvard Innovation Conference. "I watched it thinking I was going to continue in the small firm direction, but then I realized that if you want to with- draw $200 from the bank, you require a big, hulking mainframe computer," he says. "I realized I'm a mainframe guy and that big shops complement my personal practice as a good old-fashioned barris- ter who's done everything from murder trials to bilateral investment treaty dis- putes to administrative law to medical negligence." At Thornton Grout, Barrack worked on the massive cross-border bankruptcy of former telecom giant Nortel. "We could never have gone toe to toe with the big American firms without U.S. firms backing us up," he says. "That's not to say boutiques are out of the game, but they have to partner up — although technology has definitely narrowed the gap." Still, Barrack adds that it's very hard to generalize these days. "Is Lenczner Slaght a small firm or a big firm?" he asks. "They're a litigation boutique, but they have more lawyers than some of the big firms' litigation de- partments." To be sure, big firms have changed over the years that Barrack was away from them, but it's hard to pinpoint ex- actly how and why. "Firms are just organized differ- ently in terms of how practice and other groups relate to each other, and who knows why that it is?" Barrack says. Certainly, the diversity of the envi- ronment has something to do with the different feel of the large firms today. "Brock Gibson's [Blakes' chair] par- ents were two NDP school teachers from Yorkton in Saskatchewan, the firm's managing partner, Rob Granatstein, is Jewish, and Brad Berg, who heads our lit- igation department in Toronto, is openly gay," Barrack says. "Large firms are far more comfortable with diversity than they were in the past and there's a vibe that says every kid in the class counts." JONATHAN LISUS When Jona- than Lisus, then a 45-year-old partner who had been at McCarthy since 1990, joined what was then 11-lawyer litiga- tion boutique Lax O'Sullivan Scott LLP in 2010, Law Times wrote that his move had "rocked Bay Street," citing sources who said that his departure was transforma- tional for the next generation of litiga- tors. "The opportunity to build some- thing out from a great platform with the next generation and the opportunity to pursue different kinds of work, such as plaintiff 's commercial litigation and more public law, were very appealing to me," Lisus said at the time. "The firm [was] really open to these ideas and to the idea of expansion." Indeed, Lisus' firm, now Lax O'Sullivan Lisus Gottlieb LLP, currently boasts 23 lawyers. And the change in en- vironment has to a large degree satisfied the "inner restlessness" to which Lisus attributed his move. "The most refreshing thing is that you just have one business line," he says. "You also have a much more eclectic practice and greater freedom of movement to be counsel to other firms and take cases against entities you couldn't have op- posed at a large firm." Lax O'Sullivan, Lisus notes, has no "embedded relationships" on which it depends for more than five per cent of its revenue. "We don't act for banks, telcos, utili- ties, or insurance companies," he says. "To be sure, that kind of blank slate has always provoked a bit of anxiety around budget time, but it always seems to work out." Lisus also enjoys what he calls the "different attitude" to client relationships that exists at his firm. "At McCarthy, lawyers embedded themselves with clients and developed re- lationships," he said. "In Lax O'Sullivan's counsel practice, the reward is that you are truly independent and there's a much broader range of work." This past summer, for example, Lisus tried a family law case, has recently spent three weeks in court on an admiralty matter, and is preparing for a tax case next summer. As for the ability to cope with cases such as Nortel, Lisus says it's not an on- going issue. "Nortel is idiosyncratic and no one is in it by themselves," he says. Still, he acknowledges that smaller firms have to "scale up" to take very large cases. "You can't be in the big leagues by re- lying on just eight, nine, or 10 lawyers," Lisus says. "You need 20 or more lawyers who represent a bandwidth of experi- ence." A "serious e-discovery capacity," he adds, is also vital. While many firms out- source this function, Lax O'Sullivan has dealt with it by hiring two dedicated e- discovery experts in-house. "There is no question that technology is a huge equalizer," he says. JUSTIN NASSERI Justin Nasseri spent three successful years in McCarthy's Toronto litigation department, where his experience in- cluded achieving a $27-million arbi- tration award for a client. He's now at Pape Barristers Professional Cor- poration, an eight- lawyer litigation boutique in To- ronto. The press release accompanying the move cited "the unique opportunity to have a large role on great cases, includ- ing a lot of high-profile appeals, and to learn from a small group of elite lawyers who are getting into court around the clock." Nasseri is grateful for the "incredible training" and "learning to think, write, and research at a high level" that he ex- perienced at McCarthy. But the limita- tions of a big firm got to him. "You're dealing with institutional cli- ents, so the firm's practice and pricing model makes it hard to justify young lawyers taking on larger roles or doing more of the oral advocacy," he says. "And for the most part, the clients are those of the firm and not your own." Eventually, Nasseri found that the structure and regimentation inherent in a large organization imbued his profes- sional life. "The structure determines every- thing, how you progress, how you're involved in files, and how you can take advantage of opportunities," he says. "At Pape Barristers, there is not nearly as much structure or process or precedent; there's more opportunity to take a larger role, and you can focus on working with a small group of senior lawyers." The prospect of working with that small group gave Nasseri the confidence that there would be "a few elite profes- sionals who have a more personalized investment in my development." Nasseri said he felt the change almost immediately, appearing in court within two weeks of joining his new firm. "I like the expanded opportunities for oral advocacy and the chance to de- velop my own business," he says. LT FOCUS SUBSCRIBE TODAY AND RECEIVE: • 40 issues a year covering Ontario's legal landscape • FREE digital edition and unlimited online access to past issues • FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Subscribe to Law Times today for only $199*! To place an order please call 416.609.3800 or 1.800.387.5164 Order online at: www.carswell.com/product-detail/law-times-print-digital *Plus applicable taxes How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover the latest news HUKILULÄ[MYVTL_WLY[JVTTLU[HY`MVY just 55 cents a day! @lawtimes Contact us for more information: Canlawyer.lawtimes@thomsonreuters.com | 416.609.3800 | 1.800.387.5164 Access a free preview at: bitly.com/CanLawyer-FreePreview Untitled-2 1 2015-11-24 3:59 PM U Boutiques 'have to part- ner up' to keep up, says Michael Barrack. Jonathan Lisus likes the greater freedom that a boutique provides. Joining a smaller firm a chance to learn from a 'group of elite lawyers,' says Justin Nasseri.

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