I Never Learned to Duck

“I never learned to duck.”

The judge said it himself, late into our emergency Zoom hearing before him. My submissions had relaxed into a thinking-caps-on, professional back-and-forth, spit-balling the various legal pathways that could lead to a practical, badly needed outcome to the chaotic situation that had unfolded over the prior week. We had luckily hit the sweet spot between (a) moving fast enough to get a court order in time for a key transaction to close on schedule and (b) leaving enough time for the evidence to settle into facts, rather than an ever-moving target of changes and new complications.

This doesn’t always happen: sometimes we are propelled before a judge before cooler heads prevail, and sometimes we come in hot and the court disagrees and would prefer that we all head back outside and find a way through it without wasting hearing time. This time, though, the urgency was straightforward, but the momentum was no longer building. There was consensus that certain legal solutions were necessary to stabilize the situation. So it became an engaged conversation about this discretion, that jurisdiction, the statutory hooks to support a sensible analysis, the facts that were reliable notwithstanding the speed with which the situation had crested.

He had read all of our materials, over two hundred pages that had only been jammed together in the last 48 hours, that were filed with the court for less than a day. This was Thursday. One lawyer on screen, in her robes, I had first spoken with on Monday. She had picked up the case just ahead of the weekend, on her phone at a rest stop on a car trip with kids. Another, counsel from the public guardian’s office who was new to me, had just called me on Wednesday night, but she was there, in good humour and gowned, prepared to assist. The solicitor on the transaction was there too, not on record but as committed to the situation as we were, closely observing every word, every nuance. My associate was on from her home office, holding all of the quickly acquired facts and references, ready to leap if my office internet connection dropped in the winter rain.

It was a mess, and none of us had made it.

Last week, our schedules had us doing different things for other people. This week we were here, game faces on, like we’d had plenty of time to prepare, when in reality it was only a fluke that I had squeezed in washing my hair that morning. Zoom is forgiving of many sins, but it’s best to wash hair before appearing, in my experience. Each counsel looked good, and calm, and assured.

We were winding down; I checked with my associate that I hadn’t forgotten anything in my adrenaline rush and exhaustion. She gave the reassuring wave. There was a comment about the process of getting to the hearing so quickly, and the quick turnaround needed from the court, and his Honour said with a rueful smile that even as a judge, he never learned to duck. I smiled too, looked at the other smart, composed, hardworking women on the screen, and said something to the effect of “Me neither, your Honour.”

I’ve learned to jump in. I’ve learned to run a play. I’ve learned to adapt and pivot and regroup. I’ve learned to respond with compassion even though I’m on fire. I’ve learned how, most times, to hold my foot over the gas for a moment to collect my thoughts before driving ahead. I’ve learned how to floor it (but braking is another story). I’ve learned when I need to ask someone else to drive. I learned to pick up the phone first, then type. I’ve learned how to find some common humour even when we are battling. I’ve learned what to do in a crisis; I’ve done it before, and I’ll do it again. But to duck? No. Not part of my syllabus. And I’m not the only one.

I spent a hot week in the company of counsel, colleagues, co-workers and court staff who had all learned those things, in their own ways. All of our efforts ended up in an organized, effective, necessary hearing, everyone part of it, the people who never learned to duck.

About the Author

Kat Kinch is a graduate of UBC Law, clerked at the BC Supreme Court, and has been a litigator since 2006. In 2004 she was named as one of Maclean’s magazine’s Best and Brightest university students. She practises civil litigation, family law and municipal law at Kinch Eddie Litigation in the Central East region in Ontario, and in her spare time is a Master Gardener in training with a special interest in prairie planting and dry gardening.