Law in the big leagues

Fall-Winter 2013
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Five recent McGill law graduates are currently clerking for the Supreme Court of Canada. (Top row, l to r:) Katherine Webber, BCL/LLB’13, Laura Scheim, BA’08, BCL/LLB’13, Ilana Ludwin, BCL/LLB’13, (bottom row, l to r:) Guillaume Laganière, LLM’13, and Malcolm Lavoie, BCL/LLB’12 (Photo: Jessica Deeks)

McGill’s Faculty of Law produces more Supreme Court clerks than any other law school in the country. For the students who receive that invitation to Ottawa, it’s a life-changer.

by Jonathan Montpetit, BA ’03

Every spring, a handful of McGill law students get a phone call from a blocked number. On the other end of the line is a Supreme Court justice, offering them a once-in-a-lifetime opportunity. Some students are dumbstruck, some fight back tears. Then they hang up and wonder if it was all just a dream.

The prospect of being offered a clerkship at the highest court in the country is indeed the stuff dreams are made of. Only 27 law students from across Canada are selected each year, and the competition is stiff. But in the past decade, McGill law students have received more of these fateful phone calls than the students of any other law school. Since 2002, more than 60 McGill law graduates have secured clerkships, close to one-fifth of all the available positions.

Yet for those who pine for these prestigious posts, nothing can quite prepare them for the shock that comes with receiving the longed-for call. Marc-André Roy, BCL/LLB’13, was at home, immersed in a class assignment, when his BlackBerry rang around noon one day last March. “Hey, this is Justice [Thomas] Cromwell,” pronounced the voice on the other line. “Are you still looking for a job?” Roy was incredulous. “Wait. Who is this?” he responded.

Roy was one of six McGill law students chosen earlier this year in the annual clerkship competition. He gave Cromwell an emphatic ‘yes,’ and will start his one-year stint in 2014. But even now Roy admits that, after hanging up, he couldn’t help but wonder, “Did that really just happen?”

Ilana Ludwin, BCL/LLB’13, who began her clerkship at the court in September, has a similar memory of her phone call. “It feels very surreal,” she recalls. “You wonder if it was an illusion. Was that actually a justice calling me?”

These ‘legends of the call’ are really only a half-way point in a longer story. On the one hand, the phone calls mark the culmination of years of studying. They are the outcome of a rigorous application process that includes a one-on-one grilling by a Supreme Court justice. On the other hand, the calls also mark the start of what, for many, turns out to be a varied and distinguished legal career. For some, that has meant private practice, arguing cases before the very judges they once worked with. For others, it has meant working for the government, helping to draft legislation or provide policy advice. Academe frequently beckons as well.

Benjamin Perrin, LLM’07, did his clerkship with former Supreme Court justice Marie Deschamps, LLM’83, after completing law degrees at the University of Toronto and McGill. In the years since, he has become a tenured law professor at the University of British Columbia, a best-selling author and international expert on human trafficking, and, until recently, legal counsel to Prime Minister Stephen Harper. He credits his McGill education for giving him the appetite to tackle major social issues, and the prestige of the clerkship for affording a certain flexibility in pursuing his ambitions. “It was really pivotal for me,” Perrin says. “It was during my clerkship that I decided to become a law professor.”

The clerkships tend to appeal to a particular kind of law student, those who have a fondness for research, for example, and an appetite for discussing the broader implications of the law. More than a few former Supreme Court clerks have ended up back at McGill as law professors, helping to ready the next generation.

The McGill advantage

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Associate professor of law Robert Leckey, BCL’02, LLB’02

Among them is Robert Leckey, BCL’02, LLB’02, an associate professor and William Dawson Scholar in the Faculty of Law. Leckey was working in the offices of the McGill Law Journal back in 2001 when Supreme Court Justice Michel Bastarache called to offer him a clerkship. It was a formative experience for Leckey, who went on to do doctoral studies at the University of Toronto before embarking on an award-winning academic career. “It allowed me to have a mentor, and in that way it was very special for me,” he says.

Leckey is among the more than 15 members of the law faculty who have served as Supreme Court clerks, part of a network of resources in place for current students interested in the positions. In the past, Leckey and, more recently, associate professor of law Hoi Kong, BA’95, MA’98, BCL’02, LLB’02, have offered guidance to applicants. Leckey insists this help is only a small factor in the overall success McGill students have enjoyed in securing the clerkships.

A bigger reason, he suggests, has to do with McGill’s unique pedagogical approach, which teaches both common law and the civil law system used in Quebec. A functional level of bilingualism is also a requirement for entry into the McGill program. Taken together, this gives McGill students an immediate edge, as each justice might be expected to reserve one of their three clerkships for someone able to read and understand decisions in French, notably those from Quebec courts.

But there are also the intangibles. Grades are only one part of what the judges are looking for; a high GPA, while helpful, is no guarantee. Questions of character and judgment also loom large in the application process, especially at the interview stage. “McGill attracts very well-rounded students,” says Leckey. “They have an openness to the world that is attractive to the judges.”

There are certainly some extra-curricular activities that would seem obvious assets for any aspiring Supreme Court clerks. Roy served as the French executive editor of the McGill Law Journal. Laura Scheim, BA’08, BCL/LLB’13, who began her clerkship in September, worked at the McGill International Criminal Justice Clinic.

Other activities, though, offer less obvious professional benefits. Ludwin, an avid flutist, admits that she initially got involved with McGill’s Savoy Society to “keep myself sane” amid a hectic study schedule. She was surprised to discover that Gilbert and Sullivan musicals have a big following within the legal community. “My advice to undergrads is to do what interests you, do what you enjoy, as opposed to asking yourself, ‘What do I need to fill in my CV?” she says. “That’s what worked for me.”

 

 

Nicola Langille

McGill law student Nicola Langille (Photo: Daniel Haber)

An intimidating interview

The final selection process is unscientific, says Leckey. The justices each have their own distinct criteria for what makes a good clerk. The decision is thought to come down to how applicants perform in a nerve-testing interview. A select few are called to Ottawa where they meet alone with each justice who might be interested in hiring them.

As part of her clerkship application, Ludwin indicated an interest in tax law. A few weeks later, she found herself sitting across from Justice Marshall Rothstein, answering questions from the man many consider to be the foremost tax law specialist in the country. She remembers thinking to herself, “Please don’t let me say something stupid.

In preparing for her interviews, current law student Nicola Langille, who will be clerking for the Supreme Court next year, readied herself to criticize some of the court’s past decisions. It was a good idea in theory, a way to demonstrate an independence of mind. But on the day of her interviews she was a ball of nerves. It turns out that telling Supreme Court justices that you disagree with some of their decisions is a much harder thing to do in person. Nevertheless, Langille stuck to her plan. “The judges appeared to truly want to get a sense of our views on judgments, and our ability to defend those views,” she says.

As intimidating as the situation can be, Roy notes that “it only takes about 15 seconds before you realize they’re real people too.” In the end, he says, many of the questions didn’t revolve around the law at all, and wouldn’t have been out of place in a job interview for any other entry-level position. “They wanted to know why I wanted to work there,” says Roy.

 

A job like no other

What, exactly, the clerks are supposed to do once in Ottawa is somewhat shrouded in mystery. Past clerks are not expected to boast about the arguments they contributed to particular judgments, nor are they expected to gossip about the court’s inner workings. They won’t even reveal who wears what underneath those red robes. It has led to complaints about the opacity of the legal process, and some have wondered if the clerks have too much influence on Supreme Court decisions.

The court has gradually become more transparent in recent years, and its justices have, slowly, offered more details about the role their clerks play in crafting the final version of important judgments. Among the most ardent defenders of the clerkship program is Deschamps, who, shortly after leaving the court last spring, offered some insight into what makes a valuable clerk.

Marie Deschamps

Marie Deschamps, former Supreme Court Justice, LLM ’83 (Photo: Lysanne Larose)

“What we expect of clerks is that they go beyond the case,” Deschamps said in an interview earlier this year with the Faculty of Law publication Focus. “The judge doesn’t need to have the facts of the case rehashed and generally expects the clerk to have an original view of the legal questions at hand.”

The standard way a clerk is asked to contribute is through the preparation of bench memoranda, documents that outline the basic facts and legal arguments of a case being appealed before the court. It is in these memos that clerks can offer an initial sense of how they would resolve the particular issues at hand. According to Leckey, the justices might rely on their clerks to expose them to different kinds of legal arguments, to offer them fresh perspectives of the law. But there is also a great deal of variety in the relationships that different justices have with their clerks. For some, clerks play mainly a research and analysis role. For others, clerks are expected to argue vigorously with the judges to help them toughen the logic behind their decisions.

When Annamaria Enenajor, BCL/LLB’12, began her clerkship in 2012, she didn’t know what to expect. The justice who had hired her, Deschamps, was stepping down and her replacement (who turned out to be Richard Wagner) had yet to be named. Before her first day, she wondered to herself, “Am I going to be able to do this?” It is one thing to study law in school, it’s another to find oneself called upon by a Supreme Court justice to interpret the most complex and fundamental legal questions facing the country.

While the heavy sense of responsibility never quite goes away, Enenajor says she was comforted by the trust Wagner displayed in her efforts. “Having my research valued by my judge really contributed to me overcoming any anxiety I had about whether or not I could do the job,” she says.

As much as the justices do encourage a frank exchange of ideas, past clerks suggest the newcomers carry a healthy dose of humility into their roles. “It’s a very diplomatic form of language that you develop as a Supreme Court clerk,” Perrin says, only half-jokingly. It is, after all, the justices who must make the final decision. During Leckey’s time at the court, it wasn’t uncommon for judges to veer off in a direction very different from what their clerks had suggested in their bench memos. “It was a constant reminder that the judges are independent and that people with 30 years of experience tend to see the law differently,” says Leckey.

One of the things that Enenajor remembers most from her clerkship was watching Wagner toil over the decisions he was making. There were no ready-made rulings, no matter what the case law suggested. “Seeing that process unfold was so interesting, so inspiring.”

Ludwin, whose clerkship began in September, says the court wasted little time putting her to work. “From day one I was conducting research and discussing cases with Justice Rothstein and my co-clerks.”

Scheim says the experience is measuring up to her expectations so far. “I knew going in that I would have an incredible opportunity to work on some of the most interesting legal issues facing Canadians today and I have not been disappointed.”

Perrin advises those heading into a clerkship to keep an open mind. “The clerkship experience is a new chapter for them,” he says. “They pretty much have an opportunity to go wherever they want to afterwards. It’s an opportunity to decide what they want to do with their lives.”

 

Jonathan Montpetit is a former Canadian Press journalist currently pursuing a PhD in political science at McGill. He recently won a National Magazine Award for his reporting from Afghanistan.

 

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