"There are known knowns ... there are known unknowns ... but there are also unknown unknowns — the ones we don't know we don't know ... it is the latter category that tends to be the difficult ones." — Donald Rumsfeld, former U.S. secretary of defence.
Law students and young lawyers often find themselves in the world of unknown unknowns. And that is a dangerous and very stressful place to reside.
That was the case for Zack Silverberg, when he started his professional journey.
Zack, now an associate at Mills & Mills LLP in Toronto, spent his 2L summer working in-house negotiating large contracts. Law school hadn't prepared him at all for this, and he had to learn on the fly. With no formal training, Zack learned by watching. It was — in his words — the only option to learn.
He landed an articling position at an insurance defence firm. Despite having now completed law school, he still had little idea what he was doing on day one. Six years later, he still vividly recalls a partner walking into his office during his first week and asking him to prepare a simple form. Naturally, Zack had no idea what that was and turned to the trusted resource of all young lawyers, Google, to try to figure out what to do.
At the beginning, he was out of his comfort zone every day. On his fourth day, he was sent to court to argue a Wagg motion. In an ideal world, someone would have told him that a Wagg motion is named after a court case: D.P. v. Wagg,  O.J. No. 3808, that sets out the process to be followed when seeking the production of police or Crown documents. But that of course didn't happen.
Despite the lack of formal training, Zack was fortunate to find a junior associate who he could run things by, and this person became an unofficial mentor, playing a big role in helping make the articling experience less daunting.
This is far too common a story: a younger lawyer who empathizes with students and helps to fill in the gaps in a firm's formal training and mentorship programs.
Unfortunately, lawyers who fill this role are rarely compensated for their time. Their non-billable time, which means it usually has little (if any) impact on their compensation or future progression within the firm. Lawyers who fill this role are in fact often acting directly against the extrinsic incentives put in place by their employers.
When Zack became a full-time associate at a litigation boutique, he was fortunate to get a wide variety of experience in his first few years of practice. He appeared at all levels of Ontario courts, the firm had a true open-door policy, and mentorship was widely available. That said, there was no formal training. Everything was learned on the job, and any training was more reactive than proactive.
What lawyers often fail to consider are the practical realities for articling students. Students are precariously employed on an 8-10-month contract that is really one long interview process. As a result: they don't want to look dumb, they don't want to rock the boat, and they don't want to ask for more than their peers.
Despite firms of all sizes making good-faith efforts to help students (whether through mentorship, training sessions and other resources), students are not always in a position where they feel comfortable to take full advantage of these opportunities.
To combat this, Zack reaches out to his firm's students several times a week to ask what questions they have and how he can help. This way, the students know they aren't being a burden and they are more comfortable asking for help or guidance.
Zack also reflected back to his civil procedure experience in law school. After completing the course, he had little understanding of the "big picture" of litigation and no understanding of the "why" behind the various steps.
In an effort to help younger lawyers, during the first week of articling each year, Zack walks the students through every step of the litigation process, from statement of claim to trial. He explains the various steps that parties can take, the timelines and why these steps matter. Without fail, students will come to him part way through their articling term to thank him for providing this context — which has been extremely helpful for them as they complete assignments throughout articling that touch on various steps in the litigation process. It's the same approach that Zack has taken when he provides training to first year law students at Ryerson University.
Often, lawyers forget that they are operating from a place of knowledge. When you've run dozens of cases and have a decade of experience, it's easy to solve issues on the fly because you can tap into an extensive pool of knowledge. But students and younger lawyers generally have no sense of what the options are and no sense of how the pieces of the puzzle fit together. These unknown unknowns make it hard to negotiate effectively, feel confident and produce high-quality work.
Being provided with more practical, formal training would greatly reduce the stress that young lawyers and articling students feel. After all, it's a lot easier to do your job confidently and effectively if you understand the "why."
This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
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