Both Sides Know: Competing in Davies Moot an exceptional exercise in dynamic litigation training
Beyond tackling an advanced transaction in corporate law that not even lawyers five-years out encounter, law students competing in the Davies Corporate/Securities Moot need to come prepared to argue both sides of the problem. As a testament to the dynamic brilliance and professionalism of this year’s team from Robson Hall, Brandon Gray (2L), who tied for second-place Top Oralist, immediately expressed appreciation for his teammates and coaches for their contributions and assistance during the competition.
In addition to Gray, the Manitoba team consisted of Taylor Antonchuk (3L), Keenan Fonseca (2L), Aiyana McKenzie (2L), and Researcher Alex Broggy (3L). Ari Hansen (Fillmore Riley), Sharyne Hamm and Paolo Aquila (both of TDS Law), coached along with Faculty advisor and coach, Professor Darcy MacPherson.
The fictional problem was loosely based on an actual decision that came from the Alberta Court of Appeal: Calfrac, which explored the use of plan of arrangement provisions under the Canada Business Corporations Act in connection with a recapitalization transaction designed to reduce a company’s indebtedness and improve its liquidity. “This is not sort of the thing that you’re going to do in your first five years out, certainly in Winnipeg,” MacPherson remarked, emphasizing the challenging nature of the problem. “So, for the students to deal with a problem of this depth and to truly confront both sides of an issue like that means that they get an experience that typically, you’re not going to get at law school.”
Also, in having to argue both sides, MacPherson explained that the Davies is unique from other moots. “You don’t get to decide, okay, I’d rather be the appellant on this case, and then have somebody else say I’d rather be the respondent. You have to know your arguments well enough that whoever walks through your door, you can make the argument whether appellant or respondent, which I think is a great thing for our students to recognize, at least on the private law side.”
In private law, MacPherson noted, representing opposite sides can indeed happen a lot. “Today, you’re representing a company, tomorrow, you’re representing a group of dissident shareholders, usually not in the same case. But nonetheless, there’s advantages to that. So, I think that that’s one of the great advantages for the students,” he said.
Practice, Practice, Practice
In full appreciation of these advantages, Antonchuk said she will definitely be happy to have the lessons learned from this moot experience under her belt as she heads into articling in June. “The biggest learning experience I got was learning how to better advocate for your client,” she said. “Through the process of preparing to argue both sides, it really helped me to not only learn the strengths and weaknesses of the case, but also how to address them in a positive way in my oral submissions. Additionally, we were lucky enough to spend some time with various litigation practitioners who provided invaluable insights into advocacy such as using the point first method and theory-based advocacy.”
While she won’t go on to practice Corporate or Securities law, Antonchuk does want to practice litigation, and found that aspect of the moot very appealing. As a recommendation to future moot participants, while a prerequisite isn’t required, she did feel she could have benefitted from taking Securities Law prior to the moot.
Participating in this moot has been one of the key highlights from my law school experience, and I would strongly recommend anyone who is interested to try out. Given my interest in litigation, the moot was a fantastic way to further develop the clinical skills that I will be using in my future practice. Additionally, the skills and knowledge that I gained from both the coaches and numerous practitioner guest judges was beyond measure. – Taylor Antonchuk
The intense level of practice with coaches and guest judges helped the team to bond throughout the process. “We all were so proud and excited for Brandon when he was awarded second place oralist,” Antonchuk said. “It felt like a team win, and Brandon was so deserving of the award. I am also so grateful for our coaches who took so much time out of their schedules to help us every step of the way. I do not think we could have done this well without them, as I truly felt prepared after spending so many practices together and getting so much great critical feedback.”
McKenzie also found the moot helped her hone practical advocacy skills she had not yet had a change to do in law school. “The experience of writing a factum and going through multiple drafts to continue improving was a great practice and improved my legal writing skills. It was also great to take a deep dive on a specific area of the law,” she said, recommending that anyone contemplating litigation should definitely try out for a moot team.
Gray’s journey to ranking among the top oralists of the competition was a real learning process, and not something that happened over night. “I learned that as an advocate, you are the expert of your case and your primary job as an advocate is to make your pitch as simple and clear as possible for the Judge,” he explained. “I remember, during a practice with real Manitoba Court of Appeal and Queen’s Bench judges, going over what I thought was the self-explanatory stuff in a cursory fashion and delving right into the technical issues of the case. After practice one of the justices told me they still didn’t really understand what the case was about. That’s when I realized I had failed. I needed to do a better job of taking the time to paint a picture for the judges, showing them what this case was about and why my client should win. I forgot they didn’t have the luxury of spending 80-plus hours going over this case like I did.”
Gray would recommend that all 1L students try out for moot competitions in their upper years, and the Davies even if they don’t have an interest in corporate law. “There are not any absolutely required prerequisites, but it is usually a good idea to have Corp I under your belt,” he cautioned.
You can’t really know you’ll hate litigating until you’ve tried it. You might’ve come to law school knowing you hate public speaking, so you think “I would hate litigating”. But litigating is a different beast. You’re not sitting in an auditorium with eyes leering at you from all directions. You’re having a conversation with a judge, being a law nerd. – Brandon Gray
Gray recalled a story a lawyer told him about her experience having a litigation file dumped on her that changed her view of litigation completely. “Why not find out now if your preconceived notions about mooting (and litigating) are right or wrong,” he concluded. “It’s a win either way. Even if you take it and hate it the whole way through, who cares! Its three months of your life and the career clarity you’ll get from the experience is worth it in the long run.”