Legal Horror Stories | SMP A Legal Podcast
Swainson Miki Peskett LLP Partners, Jordan W. Smith, Ryan C. Kemp, and Graeme R. Swainson detail tales of legal practice gone wrong. Explore common issues, potential pitfalls, & what (not) to do as you choose your counsel or build your legal practice. Tune in to avoid writing your own legal horror stories!
SMP | A Legal Podcast is a business first legal podcast discussing trending legal topics with the occasional help of top industry professionals. SMP | A Legal Podcast is hosted by 3 of Swainson Miki Peskett LLP’s partners, Jordan W. Smith, Ryan C. Kemp, and Graeme R. Swainson.
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Transcription
Jordan W. Smith
“Hello, everybody. Welcome to SMP A Legal Podcast. Of course, I’m Jordan Smith. We’re changing it up and I’m going to host today. So, I’m really excited for that opportunity. Thanks, Graeme. And of course, with me, as always, is the aforementioned, Graeme Swainson.”
Graeme R. Swainson
“Hey, Jordan.”
Jordan W. Smith
“Hey, Graeme. And my other fellow colleague, Ryan Kemp.”
Ryan C. Kemp
“Hey, Jordan. You’re crushing it so far, my man.”
Jordan W. Smith
“Well, what, 45 seconds in and I haven’t yet made a mistake, so it’s better than how I do at home. So, this is wonderful. Today, we’re going to be talking about horror stories. So, of course, you know, there’s the good and bad and the ugly of practicing law. And, of course, this is the kind of stuff that we talk about around lunch or in casual settings, you need to go for a couple of beers or drinks or whatever. And you get to king of debrief and talk about, again, these horror stories, whatever you want to call them, that happened, the scar tissue, so to speak, that you build up in this practice and so that’s kind of the topic of today.”
Ryan C. Kemp
“And just to kind of kick it off, one of the ones that I was thinking of when we kind of said on this as a topic was when I was starting my practice..”
Graeme R. Swainson
“Jordan, these are professional horror stories, right?”
Jordan W. Smith
“Well, I, what don’t we talk about? So, when I started my practice as a junior lawyer, I remember I was working with a senior lawyer and the particular senior lawyer I was working with was pretty darn good at his job. And I remember having this thought that, again, pretty green. I was that, you know, when you’re practicing with the senior counsel, you know, 30 year counsel, whatever, you had a presumption that they, you know, they had done a lot of the type of work that they were doing, they knew what they were doing. Very likely that they knew more than you knew. I remember I had this file where it was kind of perplexing me because it was a sale of business and I’d only ever done of them, but it just didn’t seem to be going the way I thought it would. Like, the business deal terms and the agreement, the kind of security that we were being negotiated, just kind of things didn’t line up. And very early on, I just kind of presumed that maybe I didn’t know what was happening and maybe I needed to learn. I remember prior to closing, I finally had all my closing documents from the other party were trying to close this deal. And I looked and thought, well, this isn’t right. And that’s not right and that’s not right. And in particular, you know, for example, there was a personal guarantee that wasn’t, didn’t have proper material certificate, et cetera. This things are pretty basic. So, of course, I go to the senior council I’m working on in our firm with it. And of course he looks at me and I have three eyeballs and, you know, when did you find out about this and everything else. And I’m like, well, but this, you know, this person has been working for so many years. And again, the lesson I learned very quickly was obviously, you know, you don’t have to doubt yourself. Like, you know, it might be that you’re working on files with lawyers that are more general lawyers and they’re doing a lot of different files and it’s just the nature of the practice that they’re carrying. And maybe there is something that, you know, and in this case it was a very nice lawyers working across, but just didn’t do a lot of these types of deals. And so, of course, it all got sorted.The client bought the business, everything was good, but it caused some heart palpitations. And, certainly again, lesson learned, it takes so long to build that requisite confidence.”
Ryan C. Kemp
“And it’s such a big part of being able to practice and get through the work. But yeah, I mean, it takes time to build that up. When you start out, you’re probably well served to be second guessing yourself and thinking that you don’t know. You don’t know much and I think that humility, that humbleness serves you well when you’re starting out. But when you start to get the star tissue together, you have those, maybe those uncomfortable experiences or those, those tough learning experiences, that’s when you start building that confidence kind of brick by brick by brick. And things kind of start to snowball from there. But it’s tough when you start and it’s like, it’s such a familiar feeling when you first start out that, this isn’t familiar to me. This is different than the last time I did it. But that’s again, what you face every deal that you do when you’re starting out, because every deal is different. And then when you finally come across something and think, I actually think I know how this is supposed to go. Yeah, And it’s not this way.”
Graeme R. Swainson
“Again, to Ryan’s point, it takes so long to actually have the confidence to speak up and say, you know, well actually, I think we should be doing X,Y,Z, not, A,B,C.”
Ryan C. Kemp
“Well, and one of the headwinds, I kind of, I think, stifles the growth of that confidence. And, this is, I’m assuming a fairly ubiquitous experience that junior lawyers have is to be, you know, in your case it sounds like you had, you know, good opposing counsel on the other side. And, and maybe it wasn’t overly difficult, but starting out, I think we’ve all had experiences where that’s not necessarily the case. And you’ve got senior counsel on the other side, and they go out of their way to sort of remind you, not so subtly that, you know, while you’re a year out, what could you, what could you possibly know about the subject matter?”
Graeme R. Swainson
“Right. So, clearly, my word is gospel. We have a favourite saying for that, it’s being grey haired. And maybe not a fair saying, maybe a little ageist, but yeah, when a senior practitioner basically talks down to you and acts as though you should just take them for their word because they have a couple decades more at the bar than you. Of course, when you’re starting out that, again, your word is gospel, I’m going to listen to you. And then you start to realize just because someone’s been doing this for a while, it doesn’t necessarily mean that they know everything. Or, they know exactly what they’re doing and again, there’s good lawyers and bad lawyers.”
Jordan W. Smith
“And I think they call it flexing these days. Yeah, That’s the kids call flex, flexing.”
Graeme R. Swainson
“Yeah, this is a fun topic because I think, you know, we’ve done a few episodes of this podcast now and we’ve focused more on, you know, how things should be. Yeah, you know, how you should use a lawyer, you know, what I want to know, after I graduate law school, all this kind of stuff. And in reality, you know, it’s almost like a Murphy’s Law profession where, you know, everything that can go wrong does go wrong. I am a very optimistic person. As you guys know, I always kind of try to look on the bright side of things and, everything always is going to work out as it should. That’s a dangerous mindset sometimes for a lawyer because you do have to hope for the best, but prepare for the worst. And we’ll share some stories that have us preparing for the worst. And so, I think there’s different types of horror stories that we have, right. There’s, you know, the horror stories, like we’ve kind of talked about being a junior lawyer and just learning and how difficult it can be. There’s some difficult to pose in counsel. And then there’s the stories where your client find himself in a bit of a predicament. And we’ve talked about this before, where I’d rather a client come to me before they do something rather than after. But the reality is we have a lot of clients coming out us and saying, you know, I’ve done this. I’ve signed this contract. I’ve half performed this agreement, but now I’m not going to be able to finish it. And what do I do? And it’s hard. We’ve talked about this before, not to make your clients’ problems, your own problems. And I think one of my horror stories is I remember dealing with a client, they were getting booted out of their space. This was a few years ago and they had got themselves, you know, they were in some tough times. This is during COVID, and they’re fighting with their landlord and trying to get out of their space, or the landlord has tried to get them out. And I seem to have cared more about this than the client did. And I was up at night thinking, you know, how do we get out of this, what are the strategies? How do we work something out? I’m reading legislation late at night to figure out, again, the rent relief, all that kind of stuff. And, again, talking to my clients and my clients are even more, you know, rose colored glasses than I am. And they’re just saying everything’s going to be fine. Like, you know, it’ll work out. And so one of the horror stories I remember having is like, literally, you know, having this file that was keeping me up at night and that having that realization that, like you can’t, if you care as much as we generally do about every single file, about every single client, like we make our clients’ problems our own. We feel as though our clients’ businesses are like our children almost. We, you know, help raise them kind of thing. That can wear you out in a hurry. And so, again, it’s one of those things where you take all of your clients’ problems home… You’re going to be up at night and those are some horror stories.”
Jordan W. Smith
“But, I think, there’s a bunch of examples of those kind of things too. Yeah, well, for sure. So, I mean, yeah, to your point, and one of the stories that I have, I would share, and I mean it’s this is a type of story that, I’ve had unfortunately a few different times, and probably every lawyer would probably have a story of this nature. And I think there’s a learning lesson both for lawyers that you could hopefully impart upon clients about, you know, timing of transition to the business, et cetera. But obviously, our firm, like a lot of firms who were dealing with family businesses where the patriarch or matriarch are, kind of, getting up there. They’re in the golden years and they’re looking to transition to business. In this particular case, there was a third party offer for the business but there was always this thought that I think a lot of people, especially entrepreneurs, entrepreneurs think they’re going to live forever. Their house could be great. Like everything’s always going to be fine. To your point about being an optimist…”
Graeme R. Swainson
“I mean, facing your own mortality kind of sucks.”
Jordan W. Smith
“Yeah, it sucks. And tell someone who built a business from the ground up that well, you know what, how many more years do you want to work? I mean, for most entrepreneurs, I mean, that’s the, you know, it’s one of the greatest joys of their life. I mean their business is, you know, frankly is a huge part of their life, it not most of their life. So, in this case anyway, the third party offer, but the thought was, and it wasn’t necessarily even about the money, it was, well, we really like what we’re doing and we think there’s a bit more tread in the tire. We’re going to keep going, without getting into all the details, life happens. Market changes a little bit. And you’re a couple years, two, three years after that. You know, in this particular case, in position where, you know, they ended up selling to a competitor and didn’t, of course, get what they were hoping for. The good news is we were able to, through that process, I was able to at least transition them. So, they still had some ownership interest and still were working there. So, it wasn’t a complete, complete sad tale. But the point of it is preparing for the transition and in helping our family business clients, you know, be realistic about who in the family might want to join the business. You know, if the third party offers on the table, again, bird in the hand, it’s there. Is that because you can always help your family too with money. I mean, if you think you’ve got kids that might want to be in the business and you’re hanging on because you’re not quite ready, well maybe if life changes. So, that’s one of those ones where the lesson for me, you know, and I’ve lived through it a few times, is just helping, again, helping the clients see the different pathways. And just being realistic about what those might mean. And again, because of that, frankly, there’s been lots of, to get away from the horror stories quickly, there’s been lot os good results because sharing past experiences, of course, clients will say, well, what do you think? Or what’s happened? What have you seen? And I can share some of these things and say, well, you know, you got to think about it because of abc. So, at least there’s a good upside there too.”
Graeme R. Swainson
“Well, I think part of the reason we always share horror stories is because unfortunately those are the files that we learn the most on and that you grow from. And that, it makes you a better lawyer because like he said, you’re able to advise future clients based on your experience with past clients. And you can tell people, you know, I’ve gone through this before and practically this is how this goes. And again, horror stories are not fun to go through, but they’re so beneficial to experience because they make you better.”
Ryan C. Kemp
“Yeah. You took the words out of my mouth. I mean, that’s the, you mentioned off the top, you shouldn’t assume you should, you know hope for the best, prepare for the worst. The reality is, is that in, in this profession you can accumulate scar tissue from a whole host of different sources. Again, whether that’s internally opposing counsel, hair on a deal, difficult client.There’s just so many areas in which you have opportunities to gain that scar tissue. But the reality is, if everything went to plan on every file that you worked on, I think your arc, your development arc would be far more gradual than it is if you have the benefit. And I know it’s one of those things where it’s hard to see the forest when you’re in the trees because when you’re going through these types of experiences regardless of the specifics, it elicits stress. It can be overwhelming at times. It’s not fun when you’re in it, but hopefully you make it through, you get through the other side, and with the passage of time, you look back on that and you say, look, whatever that was, I’m better for it now. I can, I’ve just got better coping mechanisms. I’ve got more ability to deal with that in an effective, constructive way, than I had before. And that makes you a better, a better lawyer for it.”
Graeme R. Swainson
“Mm-hmm. And it’s an opportunity to again, you know, do better. But also, I guess, educate, for lack of a better term, your clients as well about how they should be using your services. Again, the example of, you know, even going back to my client with the tough landlord, one of the reasons that was such a tough situation is that they had signed a lease that was really landlord friendly. And the landlord had a lot of, had a big hammer to swing kind of thing due to the commercial lease they had signed. And so that was on opportunity for me to sit with them and so, this is tough but like, again, we’ve got a bunch of lemons, let’s make some lemonade. This is an opportunity. Anytime you sign a lease in the future, let’s, I’ll have a look at it. Again, it will cost a little bit in legal fees to just have that lease reviewed but, again, you’re not going to be in this situation again, right? You’re going to save money down the line. And I think it’s one of those things, like I said, it’s tough to go through these kind of horror stories, but they make us better. And again, it’s also an opportunity to kind of prove your worth a little bit. And again, with the horror stories. That’s sometimes as lawyer, when we show our value again, getting clients out of a predicament.”
Ryan C. Kemp
“Right. I was going to say, it’s like, that’s a, it can be a difficult conversation to have because certainly you don’t want to be coming across like opportunistic, like, oh, you have this, you know what I mean? But the opposite of that is, you know, when we tell clients, look, you’re like, you will be better off in the long run if you bring us in early. You know, I can understand the perception on the receiving end of that is like, well, that’s kind of self-serving. You just want to get in early and bill more. And, but unfortunately, like as I mentioned before, the most valuable learning or some of the most valuable learning experiences I have had in my career have been from the stressors, the scar tissue. Same thing with our clients. Like, the same thing can be said unfortunately. It’s great if you start a business and you go through and you enter new contracts and you never get into an issue, and that’s great. And the way you go. Is that realistic? Probably not. Eventually you’re going to have a hiccup and I think for a lotof our clients, that is when the tough lessons are learned, but they’re better off for it, and that’s an opportunity for us to demonstrate our value.”
Jordan W. Smith
“Yeah, I was going to you know, and it might be a stretch to say this is a horror story, but I’ll stretch it a little bit. I mean, one of the things I find in the corporate area is you’ll have clients that might incorporate, a couple things. You’ll incorporate a company at a registry. So, they’ll get their articles but they hadn’t really thought a lot about them at that point. I mean, I get it. You’re starting out, you’re cost conscious. I understand, but you actually haven’t saved anything but you don’t realize until later. But maybe you get your articles and they’re very basic and then you want to do some things. Maybe there is a reorganization or some other, other planning you want, you can’t do what you’re wanting to do and effectively date things and deal with it because of the way you’ve structured that. So, that’s one. One thing, and I won’t call it a horror story, but there was a particular client where because of a tax issue, it was quite significant outcome change based on the fact of how they structured things in the beginning, which was unfortunate. And the other one, is just shareholder agreements, whether it’s shareholder agreement or a partnership agreement, whatever. Doing things kind of where, first of all, thinking what, it was just a template. So, I’ll just, I don’t need to get a lawyer now. I’ll just deal with that. Or, and I’ve seen this, you know, we’re brothers, like literally brothers. I had a file where they were literally brothers and like, we’re best friends. It’s great. Nothing’s going to happen except when they’re not, except when you’re not, and which, you know, and anyway, so, I’d like to put a silver lining on that one. And in that particular file, they did settle and deal with their equity position and everybody went on, but it was pretty tenuous and it was very stressful. And again, it’s one of those things where it’s great if you get along, that should make getting that USA a lot easier, right. But still do it.”
Graeme R. Swainson
“So, you know, it’s we get into a lot of situations where we’re kind of helping clients out of predicaments and those are some horror stories. But those are, again, hopefully the happy ending horror stories where you’re able to get your client out of something. And then the other thing that it’s opposing counsel and I think we all have our horror stories about dealing with different opposing counsels. I think a lot of those stories I think they get fewer and far between as you get more senior in your career for a number of different factors. You know, the one I always find that I come across now and I still get grey hair to an extent. But it’s the, I’m smarter than you opposing counsel and we’ve talked a bunch on this podcast about what we try and do. The three of us are solicitors. Uh, we see ourselves as facilitators. Yes, we’re trying to get a deal done. Yes, we’re trying to get the client’s goals accomplished. I’ve had to just swallow my ego so many times when I’m dealing with opposing counsel where you’re negotiating a specific agreement or even a specific provision within an agreement. And I am 110% sure that I am right and this is the proper way to do it. And opposing counsel is just a brick wall. Again, for some reason or another, they just disagree with me. They tell me I’m wrong. You have to do a cost benefit analysis. I think at that point, again, kind of how big of a deal is what you’re talking about to the actual deal itself. If it’s not like extremely material or anything like that, it’s not going to prejudice your client or cost your client money or anything like that. It’s just, again, in my mind, there’s a right way to do things and a wrong way to do things. I’m going to steal a line that my wife always says, do you want to be right or do you want to get the deal done? No. I think something I think about a lot is that you have to swallow your ego sometimes and just say you’re smarter than me. Go ahead. Like, you win. Can we move on now, please? And just because we are bad at that as lawyers. Yeah, putting your ego aside and just saying, you know, it doesn’t matter. Sure, you win, at the end of the day, I just want to get the client’s goals accomplished. If I come across looking like a moron or looking sloppy or what have you, like sure, I’ll fall on that grenade as long as the deal gets done.”
Ryan C. Kemp
“I agree, yeah solicitor’s ego never helped get a deal closer to completion ever. Like yourself, I’ve had situations too where you may feel like you’re in the right, but you do the cost benefit and you think like, what is this going to cost if we go back and forth and there’s another three emails and I really dig in, but I want to prove I’m right. Like, to whose benefit is that at the end of the day? So, no I think that’s a really pragmatic, useful way of looking at it. That even though you may feel that you are in the right on a particular point sometimes it just makes sense just to forego, just to move on.”
Jordan W. Smith
“Yeah I was going to say, of course I have had those sort of experiences. One of the other things that I find very challenging is, you know, you’re doing a deal, particularly say a larger deal where there is a series of complex agreements, and there’s this kind of hot potato element where maybe every weekly meetings or biweekly meetings, whatever it is, cause there ‘;s a longer due diligence period. You’re now on a Teams or Zoom calls, it seems even more frequent. But you’re connecting and there may be, I don’t know, couple of clients or broker and client plus, who knows how many lawyers on whatever side on the call. And it’s, you know, you’ll have a SCU email at like Thursday night or Thursday morning because you know that there’s all these deliverables that didn’t happen. And then you get it, you know, three hours before the meeting and then the hot potatoes in your plate. Well, I sent you that. I sent you that. And it’s lawyers do it to themselves. It’s like saving face, like this idea that, now it’s in your, and it’s this, you’re obviously very self-serving. And I hate it because again, and we’ve talked about it on the podcast here. Trying to actually get deals done, cloud relieving with other council where I just, you know, look, I don’t want to make you look bad. You don’t need to try to make me look bad. It doesn’t help the client anyway. But as far as horror stories, it had a particular file, and I’ve had a few like this, but this one was very high. The high water mark where it was, it’s like I knew clockwork. I knew, okay, you know, and I would even try to do what I could have to mitigate it. I’d say, okay, well I’m going to send a note on Tuesday and I want to embarrass that lawyer saw phone, you know, Wednesday night, like, where is this? And like, again, light clockwork, middle of the night or something, I get some. And of course it wasn’t done very well, so I’d have to clean it up anyways, hop the potato on my plate. Yeah. So, but the positive, I guess if you want to spin it that way from all of it is again, even to your point, I don’t have to right after to get the deal done. So, it’s like I would get to that point where I realized, I guess Friday, I know what I’m doing is I’m cleaning up documents or I’m doing whatever and I kind of like almost try to book it off and go, okay, well it is what it is. You know, again, try to get the deal done. And again, it doesn’t serve my client anything to get upset so again, being right or just getting the deal done, just get it done.”
Ryan C. Kemp
“So I’ve got a similar, it’s somewhat analogous, but it’s a bit of a more specific to I think the real estate context is there’s a common thread and it really is kind of ego and what I’ve seen, and it causes, I think an unnecessary heartburn right at the time of closing is being put under trust conditions that amend the underlying contract. And I’ve had a number of situations where this happened and I’ve had a number of situations where I’ve gone back and said, just that you’re amending the contract, by the way, of trust condition. Remove it. No, remove it it. No. And it’s noon on the closing date. So what do, and I acknowledge that the code of conduct stipulates that you, that you are not, it is improper to disregard trust conditions on the basis that they amend a contract, but it’s noon. My client wants to close. Your client wants their money. Like what are we doing? Like what are we doing? Right?”
Graeme R. Swainson
“And then you are getting into the argument about if there are reasonable trust conditions and going back and looking and it benefits nobody.”
Ryan C. Kemp
“It benefits nobody. And it’s just like, it’s just a huge amount of heartburn, right at the 11th hour. And it’s ego, it’s what that’s the common thread. And it just, anyway, that’s a very, I know that’s a very specific example in the real estate context, but that thing just drives me down.”
Jordan W. Smith
“I was going to say, but isn’t it interesting, like, even say for myself, I have obviously colleagues that we work with and we, I have, you know, friends at other firms and everything else. And you do build a reputation. I mean, it’s obvious. Mhm-hmm. I mean, everybody does. You wear, you own your reputation. And it’s interesting because, you two I have very high opinions of, of course, other counsel when I’ve asked for referrals. And I know like, well, obviously you want to refer, like if it’s another side of follower in a conflict, you want to refer it to a lawyer that you know is going to do well.”
Ryan C. Kemp
“Mm-hmm.”
Jordan W. Smith
“Do a good job. And part of that’s informed by everything we’re just talking about. Sure. Where at the end of the day, and that’s kind of it, anyways, you’re doing a disservice to yourself anyway, because at the end of the day, when it comes time to that sort of thing, I can think of a number of lawyers off the top of my head that I would prefer obviously to send work to and frankly I’ve done it because they are really good at what they do. And part of what they do is, again, get deals done. And, to your earlier point,Graeme, about discussing clauses and negotiating things. It’s not like I haven’t learned things from other lawyers. I’ve been on files with lawyers at other firms where they’ve constructed something in a way or, I mean, I’m not too proud to say it and I think, well, that’s pretty bright or that’s an interesting way to have handled that. And so, again, I’m always learning, right?”
Ryan C. Kemp
“I mean, all good or bad, it informs your experience and you’re better off for it. There’s no, there’s no doubt. And as we said off the beginning, sometimes it’s those, it’s those challenges that you run into that you grow the most form. But just to take it back, I’ve said this to you guys, how you guys are probably going to roll your eyes cause I’m going to say it again but this occupation is hard enough as it is. We don’t need to make things more difficult, more stressful on each other by letting ego get in the way, being unreasonable. Be empathetic to your opposing counsel. Like, do what you can to get it done. Everybody’s better off for it. Thing are tough enough as it is.”
Graeme R. Swainson
“Again, we fancy ourselves as facilitators. It is so much easier to be that facilitator when again, both sides are kind of pulling in the same direction. Again, we’ve had files where we have essentially done both lawyers jobs. Yes, and that’s never fun. You never want to be a lawyer that people groan when they see that you’re on the other side of the deal. And that being said, I’m sure some people groan when they see my name, but, you know, that’s this job and it’s hard because we put a lot of, I don’t want to say trust, but a lot of reliance on other lawyers to make our jobs easier and to be able to facilitate all of this. And part of that is, again, like you touched on Ryan, trust conditions. Again, undertakings and trust conditions are kind of generally how we get deals closed without basically meeting down at the bank with a deed and a bag of money. And so again, if someone doesn’t really know how trust conditions and undertakings work, it makes it so much more difficult. And again, we rely on other lawyers with that and we rely on other lawyers, I mean, we move a lot of money around and whether it be, you know, we’re “post-COVID” right now, so a majority of the money moving around now is by wire, I think. But, we’re still in the days of, you know, the solicitor’s trust check and I will share a horror story because I think this is every lawyer’s nightmare. You are closing a deal, you are acting for vendor, purchasers solicitors’ trust check comes in in the morning. You cut a bunch of checks to pay out outstanding mortgage real estate commissions. Have either of you ever had a solicitor’s trust check bounce on you?”
Jordan W. Smith
“No. Mercifully, I have not.”
Graeme R. Swainson
“I have and I think that’s the closest I’ve ever had to actually having a heart attack, because it is all of a sudden I’m recalling checks. I am scrambling. I’m trying to figure out if I have to, you know, go talk to the law society or what have you. And all the while my clients call me and are saying like, you know, where’s my money? And have we sold this building? Should we hand over keys? And that, I’m trying again, you don’t want to sewer someone right away. Maybe there’s a misunderstanding. You don’t. Something went haywire. I’m not going to immediately like raise alarm bells and say the check bounced. But I kind of wanted to raise alarm bells and say, holy cow, the check bounced guys we’re freaking out over here. So again, you try to stay calm, you reach out, you figure, okay, it’s a misunderstanding. The funds that they had in their account hadn’t quite cleared. So again, you talk to the banks, you get every, you get it sorted out. Again, it’s a matter of communicating with the lawyer on the other side, communicating with the banks, communicating with your client to make sure that they know, okay, yes, we don’t actually have the money yet, but we’re getting this sorted. So again, when kind of calm heads prevail, and again, I’m a big believer in you worry about things that you can control and you don’t worry about things that are out of your control. Again, not raising the alarm bells right away, trying to stay calm and just getting it figured out. We ended up closing the day after and, not the worst thing in the world. Again, purchasers paid a day of interest, everything was fine, but oh my god, I actually thought I was going to have a hear attack when our finance manager came into my office saying the check bounced.”
Ryan C. Kemp
“Oh, that’s a horror story. So, one of the, I had mentioned before that there’s a number of different ways to accumulate scar tissue. And one of the ones that I overlooked, the glaring omission is that one of the ways to accumulate scar tissue is your own error. And so I don’t want to sound like a preacher here talking about previous experience and I’m on my sweatbox. I am far from perfect. I’ve made a number of mistakes in my career, I’ve learned from them. But I’ll share two examples of ‘horror stories’ that are my own doing. And I’ll open myself to be a little vulnerable. During my articling year, I had what I think is a very common experience. You get a file on your desk first thing in the morning, please appear in chambers. We have to get a consent order and so I tread down completely unprepared. You know, again, not that I, you know, let it sit or what have you but again, I just, I went, I didn’t know the full, I didn’t know the file as well as I should. You’re sitting in the back of the courthouse reading the file for the first time and I go and it’s finally my turn. I get up and I make my pitch and the justice asks me a very, which should be a straightforward for somebody that actually knew about it, would be a very straightforward question. And so I was left with a decision to make, like, do I try and jazz hands my way around this? Or do I cop to the fact that I don’t know my ass from my elbow. And so, of course, I decide I’m an officer of the court. I’m going to, it’s my mea culpa and so the judge sent me out of there without my consent order. Left to explain to the partner that had sent me there that the consent order was going to have to wait. So that was, uh, I learned some valuable lessons there. The other one is, I was maybe a year or two out of, first or second year associate doing residential conveyancing. I’m on for the buyer. We close our deal. File sitting away again. We’re like, you know, a month or so after closing. I get correspondence back from the vendor’s lawyer. Please find enclosed an updated copy of title evidencing, discharge of the permit, non permitted encumbrances. I’m like, great. I take a look at title and I look at the registered owner and I think, oh boy, those aren’t my clients. That’s still the vendor. That’s not good. So, in a panic, I’m right through that mercifully I had to go, you know, about 20 pages deep into the correspondence peg, and I found the DRR and the transfer, right on the correspondence peg. So, I was, you know, no harm, no foul. I was able to submit it, we got registered. No, you know, intervening registration, nothing wonky mercifully. But again that’s one of those situations where you learn the most, you grow in the most by making mistakes. And I’ve made my fair share of them. But again, it wasn’t fun going through it. But after the fact, I can laugh now. I got a story.”
Jordan W. Smith
“So, I was blessed with a lot of confidence coming out of law school, unjustifiably. And it really got cut down real quick. But, I’ve got two. One was there was a senior lawyer, this is the third day that I articled. Literally, the third day I was there, like I knew nothing. Driving to where my office was, and he comes in and he says, you know, he’s a senior litigator. I need a case that says this, and I’m like okay I’m like writing down my little note. Oh, it just says, okay, okay, so I go, and I completely like, you know, like a squirrel finding a nut, like it happens, I find find that case that he wants, right? And it’s like, well, that was easy. I go down and I ‘m thinking, I’m rocking. Boy genius. Doogie Hauser. And I go down and I give hi the case and he’s like back slaps and it’s great and everything else and I’m like okay, yeah, I did it right. Well, the next day or maybe two days later, I mean, now he’s going back, he’s going back on the, well, he’s fishing in the wrong stream. I can tell you that in a long, a little all star. The wrong intellectual pool. And he comes back and he’s like Hey, and he literally said this, he’s like, you did such a good job. I’m like, this guy said, what’s he doing? He did such a good job the first time. I just need a case that says this. And I’m like, okay, again, I write my little note. I mean, same thing, man. I write my same note down and I’m realizing i’m struggling a little more, right? Like, I’m going okay, he needs it right away. Because there’s, he’s going to be in court the next day. like this is important, he is going to be in court the next day. Like this is, you know, so he comes back and checks and I’m like, how’s it going? It’s about six o’clock. And of course I have plans, right? Like, you know, no, I’m still a young guy. And I’m like okay, well maybe another hour, he comes in again, about seven thirty or eight. He’s like, you know, how’s it going? And I’m like, I have to cut this off. So, now I’m feeling pressure, like, I’ve got to show him my work, I had nothing. But I was trying to, oh, maybe this is good. So I go to him and I remember him reading this and I remember his, I knew it was a mistake. As soon as I gave it to him, he’s reading it, he’s like, what? What’s this? He’s like, oh, maybe you didn’t understand I need it to say this, anyways, I just had it. Like, I’m like, look, I have to be honest with you, I’m doing my best, and then I remember he looked at me, he’s like, oh , that’s interesting. It’s like, well, you know what? I just, you did such a good job the first time, it just kind of trailed off, you peaked early. That was it. Just kinda dot, dot, dot. I’m like okay…”
Graeme R. Swainson
“Anyway. You have to eat some humble pie when you’re starting out. I do think, yeah, we all do that. But like Ryan, your story, the Chambers application, which I’ve heard several times and I never get sick of hearing it. Again, the lesson there is not necessarily one for a student to learn, but I think what you kind of like, the lesson I always gleaned from that is like, how not to prepare students to go to chambers on your behalf, right? Like, you know, for the non-lawyers listening, Ryan’s story is not unique whatsoever. I think there’s so many stories out there about whether it’s a student or a junior associate, walking into the office with that file on their desk and say, just need you to go get a quick order in chambers this morning with no context or background or anything like that. And I think again, the scar tissue and the horror stories, that we get throughout our careers, it makes us better lawyers. But it also, again, you know, the pay it forward thing, and I think this is something we very much believe in the, let’s make the experience for the next generation better than what we had it, the attitude that I had to do this. So yeah, you have to. Which is prevalent, I think across a bunch of different industries where basically I had to walk through 10 feet of snow uphill both ways to school. So I’m going to make your life as tough as possible because it hardened me up. So, it should harden you. Again, let’s take that and say again. Still able to teach people lessons, still able to instil a good work ethic to people and teach people values and all that good stuff don’t have to also make their life a living hell in order to do so.”
Ryan C. Kemp
“And I think that’s maybe the lessons that we’ve learned along the way as well. There is, there does seem to be an element of, kind of like rite of passage with some of that stuff. And I agree. I just had the thought that, I’m going to have to make a bar admission application next year. So, my student should be sweating because I think that might be my first court appearance since my bounced consent application.”
Graeme R. Swainson
“I’ve never seen a bar ad get declined, but you never know.”
Jordan W. Smith
“Not a good track record. You guys have any other stories or have we tapped the well?”
Graeme R. Swainson
“I gave you all my gems.”
Ryan C. Kemp
“Yeah, it was funny. Once we got to the self-deprecation, the stories really started showing. So, that should probably say something. Yeah, but, no I’m tapped out. I think this is good. I think let’s go experience some more horror stories here. Let’s do it.”
Jordan W. Smith
“Thanks everybody for listening to SMP A Legal Podcast.”
