Good Faith, Great Writing, and Growing as a Lawyer with Marco Falco

Hello everybody, Welcome to another episode of studying Law around the world. Today I have the opportunity to interview Marco Falco. Marco has an incredible experience and story. He's a proud UFT alumni all the way from bachelors to his JD and one who has been very active in the universities activities as well. And also he's a partner at Talking Mains and works especially with appellate work. So just wanted to really thank you for your time and appreciate you joining us today. Thank. You, Marco. Thanks so much, Claudio. It's a sincere pleasure and honor to be here today. I'm happy to be part of this initiative and and the podcast generally. Thank you so much. Can you tell us a little bit about yourself to start off this episode? Yeah, of course. I'm so born, bred and raised in Toronto in Townsview, very middle class background. I'm a proud member of the LGBT community as well. So I effectively started my sort of legal journey back in undergrad at the University of Toronto. I did a specialist degree in English literature with a major in Italian literature. I went on after that to complete my masters degree in English at the University of Toronto as well. And then following that, I was really interested in pursuing the PhD route. I really wanted to become an English professor and I really wanted to become an English professor of American literature. So after my masters, I had applied to several Ivy Leagues in the United States. And this is a lesson about why certain life trajectories aren't necessarily failures when when you see them as such in your trees. But I didn't get in to any of the PhD programs I wanted. I think I got shortlisted for one of the Ivy Leagues. And as a consequence of that, I had banked my L SAT several years ago prior to that during my undergrad, and I wasn't exactly sure what I was going to do. I was accepted at the University of Toronto PhD program in English literature. And so I thought, OK, I'll just continue my merry way at U of T in English. But the market was not particularly good for humanities professors at the time that I graduated in the in the early 2000s. And so with that, I always had an interest in reading and writing and so forth. So I thought, let me parlay this and let me see if the University of Toronto will take a late application to the Faculty of Law. And fortunately I had, but there were amazing administrative staff who worked at the faculty and somehow did their magic. And the next thing you know, I was enrolled in the JD program at the University of Toronto and completed a law degree. I will say that I sort of sat in law school for the first three months and wondered what I was doing there and why I wasn't pursuing studies and Chaucer and Shakespeare and the things that really, really interested me and why am I looking at supply demand for curves in contract law and studying the law of the law and economics of Canadian contracts. So it took a while and then I suddenly sort of felt reinvigorated intellectually. And I would say by about the spring, I really started to take a deep and abiding interest in in the law, how it works. One of my amazing professors at the Faculty of Law once said to me, the light bulb will go on and it probably won't go off until March or April. But when it does, you'll start to understand how all these various puzzle pieces that you've been introduced to fit together. And literally that moment does happen. And suddenly it makes sense. Like, oh, there's this thing called contract law and tort law and criminal law and constitutional law. And how do they, how do they all operate as a unified pole in a democratic society? And so that that is effectively my journey. And then I essentially started as a summer student at Torkin Manes. And here we are 20 something years out. I don't want to think about it, but I was born, bred and raised here. And I'm a proud member of the firm and now a partner who practices in appellate litigation and judicial review. So that's how I ended up here. And that's that's me. Perhaps a long winded explanation? No, that's fantastic. I'm, I'm glad to always hear a little more about your story and especially how maybe law not being your first choice and that being a very successful 1. So that's always encouraging to hear and to learn and you've built a strong practice doing appellate litigation, judicial reveal and I'd love to hear a little more about that. What led you to focus on this area of law after? All it's really interesting. Not none of it was intuitive. I didn't come to my firm, you know, imagining that this would be my career sort of 20 years out. I thought it probably would have ended up in something a little more traditional like commercial litigation or some type of general litigation, health law and so forth. The way that it kind of evolved was that I suddenly took more of an interest, I would say, in reading and writing about the law and not to say that facts and evidence and so forth are not important. They in fact drive all the decisions that that I argue. But I had a particular interest in wanting to pursue the law proper. And so I naturally gravitated towards the partners that had practices and things like public law, administrative law, and who appeared before the Divisional Court and the Court of Appeal. And that intellectual hook, I think got me. The beauty of what I do is that because I am a generalist, which is somewhat of a rarity in our perfection, everyone's specializes in everything these days. But because I am a bit of a generalist, it means that every day something new is landing on my plate and I could be arguing in an appeal in a construction litigation matter and the next day be doing something in civil sexual assault. So it runs the gamut. And the skill set that I bring to it is that both clients and, and my fellow partners around here rely on me to sort of have a knowledge of how appellate litigation works, how the divisional court works, what are the judges actually looking for? And because this is a second kick at the can, effectively, it also sort of draws in how a judge may have gotten the underlying decision right or wrong, which to me is fascinating because it involves a whole other intellectual exercise that I think is sometimes not available naturally at the trial level, but certainly on appeal. That's fantastic getting you a little bit about your story, a little bit about, you know, the area you specialize in. Another, I feel like a highlight of your resume and all of that is that you've been very involved in various mentorship programs in the University of Toronto and outside of it as well recently, I think a chapter of the Italian students and just so many amazing different things. And I'd love to hear a little more about what inspired you to become a mentor and to be so committed to giving back to the legal community. Thank you. I mean, I, I try to do my level best while managing a sort of practice on the side. It's a, it's a hard thing to do, but it's such an important thing to do it. Early on in my career, I had mentors both outside of my firm and within the firm itself who either showed me the ropes, taught me what makes an effective litigator and what makes for effective advocacy and taught me how to sort of cope from a life skills perspective. Anyone listening to this will know that litigation is not an easy swag. It's immensely stressful. It can sort of quite large demands on your life, on your mental health, on your well-being. Having a mentor in my view is sort of critical not only to sort of learn about the substance of litigation and how how you pursue those aspects of your career, but on a sort of personal level, having a sounding board for someone to say, you know it's going to be OK. This is how I cope with strengths. This is how I cope with multiple deadlines. This is how I cope when I'm losing a case on an appeal or have lost a case. This is how you deliver good news to a client. This is how you deliver bad news to a client. Having that type of sounding board was so important to to my career. So it was almost as though when I gravitated into this role as as mentor to both students within my firm, outside my firm within the faculty of law at the University of Toronto. You mentioned various other organizations, LGBT organizations where I try to mentor students and also students from historically disadvantaged groups who in my view need extra mentorship because they have to face other obstacles in addition to the difficulties of litigation. Having committed, having others commit their time and resources was so valuable to my career that it's not something I do because I feel it's an obligation and a duty. I do it because I love to see people thrive. And I cannot tell you how many students have walked across my desk and I later encounter them that the faculty of law or encounter them in litigation of. I've had people I've mentored actors opposing counsel against me, and it just warms my heart, even if I don't know agree with their positions. But it warms my heart because I love to see others thrive. And there's a lot of pessimism in the world these days. And I feel that committing yourself to optimism through mentorship is is a way to make the world better generally. And perhaps that's corny, but so be it. I love that it tells about how how genuine your efforts are and taking into consideration for for how long you've done this now. And I'm sure, you know, seeing students at your firm and all of that in this experience, what kind of advice do you usually give to law students or young professionals just starting out? It's an excellent question. I think that one of the most important things, well, two important things #1 figure out what your superpower is as a litigator, It's in my view, impossible to be good at everything. You can't be good at examinations, oral discovery, the written work that's involved drafting, and so forth. We all, we all have our strengths and weaknesses. We know where they lie. Work on your weaknesses and continue to educate yourself so that you can overcome those weaknesses. But most important, learn how to leverage your superpowers. I realized at a young age, given my background in English literature, that I loved reading and writing. And that was going to be where I was going to make my career. And I knew it was going to be some form and it was going to take some sort of shape. And it wasn't exactly 100% certain, but I knew that that was the skill set I needed to promote. And so I started to do things like write a lot and publish articles about various legal topics and sort of show the world at large. This is what I'm good at. And so if you're going to hire me as a client, this is what I will do for you. And then oral advocacy, of course, developed over time as well. My, my sort of strongest, strongest advice is figure out your superpower. And then the second sort of component of that is for someone to figure out what they love. And it's really hard in the law because you necessarily graduate with law school debt. So you figure, I'll take the first job that comes at me. I don't think that's a wise move. And I saw a lot of my friends sort of start at places that didn't seem particularly well suited to them. And they did a lot of shifting early on in their career as a consequence. You have to figure out what's going to make you tick. You know, it could be corporate law, It could be litigation generally, but this job is very, very difficult. You have to have a lot of friends in it. You have to have mentors. But the other thing you have to do is want to wake up in the morning to do it. And if you don't have that type of drive, if what you're doing seems utterly and completely meaningless to you, you will not thrive in this profession. You will just sort of do your work, get paid, go to court, walk out the door and live to see another day. And that's that's genuinely not something you want to be doing every. Day well, that makes a lot of sense. Appreciate you sharing those. And I feel like they they could definitely apply to a lot of different people getting to listen to this episode and even for myself here. And if we may go back a little bit to your practice. I know that your practice covers a lot of different things, including, you know, public commercial law issues. And you just said that being a generally something new comes up every day. So how do you approach such a complex matter in in specially at the appellate? Level. It's really hard and it's really interesting. The truth about that is genuinely, sometimes I get pulled into files and I know absolutely nothing about the subject matter. So there's a learning curve. And so you start with, you know, very basic things like let me Google what a debenture contract is and, and figure out and how that works or what's a syndicated loan. You know, there, there are many, there are many sort of things that sort of start you off. There's a lot of resources available and you might start with textbooks and so forth. And then once you have a clue, you can then go to the underlying judgment. Typically, most judges do an excellent job at first level of sort of setting out the legal issues, getting the reader acquainted with the facts. And you start with the record there. And over time, it's just a lot of reading and a lot of hard work. And suddenly you've gone from zero to 100 and you're before an appellate court where you know the judges are incredibly intelligent, will often have very pointed questions for you. There's, there's not a lot of room in, in appellate litigation to sort of sit there and make your arguments and resuscitate the facts. You usually get 3 minutes into your submissions and then the panel is just at you with a million questions because they know the material and they're incredibly smart and so forth. But I kind of have to remind myself, no matter how many, no matter how apprehensive I may be about my lack of knowledge, let's say at the outset of a file, I'm going to get to a place where the only other people as well versed in this material as I am usually my opposing counsel. It's amazing how the law works that way. And that's why I think, you know, training, learning how to tackle a case from the outside, particularly when you know nothing about it, and then suddenly becoming an authority to get to that transition involves a lot of time and it involves a lot of hard work. But effectively, the skill set is always the same. And at the appellate level and at the judicial review level, which you're fundamentally looking for the two to three issues that the court is going to entertain. So this isn't about rehashing, you know, a 20 day trial and going through every little piece of evidence and every little thing that the judge may or may have done right or wrong. It's literally about feeding the court legal questions and saying, this is where I think the judge right, right or wrong on two to three issues. And that's literally all you have time for. So it's amazing how that process evolves. And I've done it so many Times Now that I've literally have developed a system in a rhythm to how I, I tackle things. And sometimes my clients will come to me and they'll be like, OK, let's talk about this appeal. And this is how I want things to go and so forth. And I, I sort of have to walk them back and say, look, I, I appreciate how you want me to tackle this, but I need to explain to you, this is my system. So, you know, I'll, I'll need X amount of time to sort of familiarize myself with the file. And then we can meet and then we can talk and you can tell me your thoughts and then I'll tell you whether or not, you know, you've, you've got some merit here. It's a fascinating process. It's an intellectual process. And that's why I. Love that one. Fascinating. And I'm sure that over the years, different people have different personalities and all of that. But if you're if your work is just, you know, filling out a form or, you know, doing the same repeated work, it definitely gets old fast. So I feel like that's a way to keep very alive, right? That's amazing. Well, you were just saying how in in today's world, so much comes up, so many different cases end up landing at your table. And if I may ask as well, in regards to, you know, the evolution, technology, AI and so forth, is there any of that that you see applied in appellate work these days? And even about the row of appellate courts, do you see these evolving, Changing anyway? It's an excellent question. There's a lot I have to say about that. Artificial intelligence, I think is, is slowly but surely revolutionizing the profession. That being said, at the appellate level, what we have now is a sort of patchwork quilt of practice directions and regulations across the appeal courts in Canada. The genuineness is that the responsibility, and this is true of a Law Society of Ontario white paper that says this as well, the responsibility for ensuring the integrity of anything produced by AI remains with the lawyer. And so the appellate courts are saying that even if judges do want to use artificial intelligence, they have to be incredibly careful. Even though the matters coming before an appellate court are usually public record, they aren't always. And so judges have been cautioned about the sort of risks inherent in hallucinations and inaccuracies. The sort of second component of that is the sort of bias that can arise where artificial intelligence is being used and the decision making process. And it's actually interesting. I wrote a paper in the Advocates Quarterly last year about the effect of artificial intelligence on judicial review and administrative law and public law. There's a lot of opportunity there. You can imagine that a civil servant who, for example, has 800 cases in their caseload and has to make 800 decisions, would be particularly tempted to go find an artificial intelligence program that can maybe narrow things down, assist with the decision and so forth. But there are fundamentally a lot of problems with that. There's bias, there's inaccuracies, you know, there's the degree of reliance. There are disclosure issues. If you're a lawyer attacking a decision of an administrative tribunal and you know that tribunal has used artificial intelligence, I can tell you I would be demanding production of any form of artificial intelligence in the data sets that were used to achieve the decision and so forth to see if there's any, any grounds for attack. The really interesting question in my view is that appellate litigation and administrative law so far are very much based on a 20th century model that never contemplated the use of artificial intelligence in the decision making process. I think, and I at least argue in my paper that it's time to sort of evolve the norms and understandings of things like reasonable apprehension of bias, the duty of fairness, the right to be heard. What does that mean when there's potentially a robot somewhere in the background assisting in a decision that's going to fundamentally affect people's lives? And that has a lot of implications. So it's a sort of risk opportunity calculus. And I don't know where I land yet. I am a firm believer in the regulation of artificial intelligence particularly is used by state decision makers because I think they they have to be bound by the rule of law as they always have been. But we'll see where it goes. It's it's a really interesting question and and props to you for for raising. It thank you for for your comments. I think those are very pertinent. And as we definitely talk about that in in law school in different circles, and we keep thinking about how, you know, things will turn out and how you know that usage will come up in different ways in different spheres. But especially when we talk about, you know, young associates, it becomes a little interesting, especially on the sense that a lot of young associate tasks are being in a way products are coming into literally do that kind of research. So when you get a mature lawyer, they already have the skills and ability to be able to ask the right questions and analyze it with a little more maturity than somebody just starting out. And I guess just time will tell how that will play out, but it's it's being definitely interesting to see that. It's actually, I mean, you raise you raise such an important issue, which is the effect of artificial intelligence on associate mentorship and training. There is a lot of concern about that. To your point, I can look at a fact of maybe drafted by Chad GBT, not that not that I do, but I'm assuming that in theory I could look at one. I can sort of realize almost immediately where I want to argue what's wrong with it, what isn't, what might be inaccurate, what couldn't be someone eight years, one to three as a young lawyer doesn't have that skill set yet. And so if we're going to just start delegating these tasks to artificial intelligence, the fear that I have is, you know, a lawyer who's 20 years out, who's been utterly reliant on AI is not going to have the necessary level of judgment and critical thinking skills that they may need. And so, you know, depending on the firm, while you know, we're fully supportive and we're happy to use artificial intelligence programs, we are in fact still very firmly committed as a firm to ensuring that we're not letting the education and mentorship part of of associate jobs suffer as a consequence of artificial intelligence from becoming a partner in in the law firm structure. I see no, that's that's reassuring to here in a way and very, very interesting to see how it will play out. Moving on to another topic, you've written a lot, not only for your appellate work as a part of your job, but you've written quite a bit of different, you know, op eds and opinion pieces and and about the legislation and all of that as well. And I saw that one of your recent articles discussed the duty of good faith negotiating commercial contracts. I was wondering if you could tell us a little bit about that, about this contract series that you've been writing on. And then I think that you've gone so long as writing about, you know, contract law during the trade war and the, the key lessons that business should keep in mind. So I'd, I'd love to hear a little bit about that, Marco. Yeah, of course, it's sort of, it's kind of amazing how a larger social and political context can take over lawyers minds and litigators minds. But this was true of the pandemic and now we're sort of seeing it again. You touched on this quite rightly. These are the the US trade war against Canada and the imposition of tariffs. There are a lot of implications. We've had a lot of clients contacting us. And of course, we we sort of offered the perspective from the Canadian common law and contract law perspective. But all the doctrines that sort of became important and prominent in the pandemic. And I'm talking about things like the doctrine of frustration when your contract gets frustrated by a supervening event or, you know, whether or not a commercial contract has a forced measure clause that takes into account circumstances that a party has no control over. When can those be exercised? How are they exercised? And we're getting numerous calls from clients who are sort of raising the same issues. The good news is we've kind of done a lot of legwork during the pandemic because these were issues that were raised then, but now that the US tariffs have gone into effect against the Canadian businesses where Canadian contract law applies, there's there's been a myriad of issues. So that's sort of something that I've been, I've been touching on just because my clients have been raising it and have been have been quite concerned naturally about what, you know, doctrines that deal with supervening events like the imposition of tariffs by by foreign governments could have on Canadian contract law. So there's sort of that. And then the good faith piece is something that's near and dear to my heart. I've written a lot about good faith. Good friend from law school, Brandon Kane wrote a 2 volume tone. And I think Claudio has part of your amazing 75 years initiative. You may have spoken to to Brandon, he's at parties and he wrote this incredible tone on the duty of good faith and I've kind of picked up on it as well. And we both he and I talk about this a lot. And so I recently gave a talk at the Advocate Society about whether or not there's a duty to negotiate a contract in good faith. And that is before the contract is actually entered into simply because the duty of good faith is we've always understood it only applies when the parties enter into a contract. But what happens before the contract is entered into? And there's been a sort of common law understanding, shall we say, the latest is the decision of the British Columbia Court of Appeal called Ocean, something you're going to have to forgive me for not remembering the second word, but it came out last December and it effectively affirmed that there is no duty to negotiate a contract in good faith if the parties have not properly entered into a contract. And so there's there's no good faith duty to perform. That being said, as with law, there's a rule and then there's a million exceptions. And the Supreme Court of Canada came out with a decision early in January involving the Quebec attorney general and seemed to suggest that under the Quebec Civil Code, which is where the common law got a lot of its good faith principles from. But under the Quebec Civil Code, if the parties in fact have an obligation to negotiate anything in their contract that's expressly set out, for example, in a lease, there might be a renewal provision that says the parties have to negotiate a renewal and so forth on the Supreme Court of Canada says absolutely, in those cases, there is a duty of good faith and that applies simply because the duty is tied to the contract itself. So it's going to be interesting to see where the Supreme Court of Canada lands at common law on this issue. But these are the sorts of burgeoning things that raise my intellectual curiosity and hopefully a a lot of your podcast members as well. And so I write a lot about it, yes, partly for shameless self promotion and so forth for clients, but also because I'm just genuinely really interested in in the directions that that that the law will take needs to be this issue. That's fantastic. Well, thank you for sharing that to to wrap up today's episode, I'd love to to go back to one of the topics that we spoke about. We spoke about, you know, young lawyers, law students starting out. And I know that a lot of people more and more want to build a meaningful career, a career with purpose and one that will be long lasting. We know that probably this this generation entering the workforce now will probably be there for for quite a while. And and of course there's always room to, you know, change careers and all of that. But we, we don't start a career looking into getting out of it for the most part, I'm pretty sure looking into, you know, keeping it meaningful with purpose and sustainable. I wonder if there is a piece of advice that you give to those of us starting out in this upcoming years. Here, the first thing that I think is important is that when you're starting off as a lawyer, yes, you have to learn your skill set, be it as a corporate lawyer who does transaction work or as a litigator who's who's going to be appearing in court. So substantively, of course, you have to learn the practice of law. That's fine. And that's something that will evolve naturally between years 1:00 to 6:00 and 7:00. But while you're doing that, the most important thing that you should be doing, and Claudio, you are Superbas, is building out a network. And that doesn't mean just a network of potential clients down the road that you know, so that you can become a rainmaker and and and make a lot of money. There's that, of course, and that, you know, the business of law is important without question, but also a network of mentors, a network of friends in the profession who do the same thing that you do, joining associations that are involved in the industries that you're going to see yourself in 20 years, acting as an advocate for. Those are all important things that you have to start thinking about. And to be honest, it's something I didn't do as much. I was, I was a very much a heads down kind of person, unlike you, Claudio. And I sort of kept my head down for a while just because I was so obsessed with learning the skill set that I kind of let that stuff go by the wayside. But the more networking I started to do, the more people I met in the legal community. Number one, you realize how small the legal profession actually is, the fact that there are many, many lawyers across Canada. But second, more important, you start to build people who will become critical to your success. And that means, you know, people like former judges, current judges, mentors, senior counsel, people who have guided me throughout my career and have said, do this, don't do that. Don't waste time with this, focus on this. And and then on a personal level, you know, having, having someone, someone there who can help you navigate and understands the law. I have an incredible spouse who's in immensely supportive and I'm super lucky for that. But there's also, you know, he's, he's not a lawyer. And so sometimes I need to bounce ideas off a lawyer or have someone who understands, you know, when it's like have a heart Davenport and and you know all the sort of followed the rules from one such have a good and we'll understand. So my sort of essential advice to any young law students and lawyers and is start to figure out who your network is and start to build it from the ground back immediately. Well, fantastic. What it what an episode. I encourage everybody to to go back and if you haven't gotten some, some pencil and paper and taken some notes, it's it's definitely an episode worth doing that. Thank you so much Marco for for your time and for all those insights. Thanks so much, Claudio is a sincere pleasure and congratulations on this endeavor. It's. Excellent. But thank you so much. Thank you all for tuning in, and we'll see you all on the next episode.