An Interview with Cheryl Woodin

Cheryl Woodin is a highly respected litigator at Bennett Jones LLP. She is the Co-Head of the Class Actions Practice Group and the Litigation and Dispute Resolution Department. She specializes in defending complex class action suits, having defended clients in claims across many industries, including consumer products, automotive parts, drug and medical devices, securities, labelling and billing practices, and environmental contamination. She has appeared at all levels of court in Canada and has been counsel in several precedent setting decisions. She graduated from the University of Toronto Faculty of Law with an LLB in 1996 and currently serves as an adjunct professor with the Faculty.

What motivated you to go to law school?

Prior to her legal education, Woodin completed a BA in Philosophy at Queen’s University. This educational experience strongly motivated her desire to attend law school. “I have a philosophy and political theory background, and I really enjoyed my undergrad… I really enjoyed studying the philosophy of life, community, and people. Law was an opportunity to become a more practical philosopher.” Woodin saw the law as a tool to take her interest in philosophy and apply it to real people and real problems.

Why litigation?

Woodin did not know that she wanted to pursue a career in litigation prior to law school. However, during law school she found that she “gravitated towards disputes as opposed to corporate law because the meaning of words is so critical to advocacy.” She noted that litigation was simply the natural output of that interest.

How do you think litigation is different from other types of law?

Woodin commented that litigation is different from other types of law for three reasons. First, litigation is built on an adversarial system. Second, litigation files tend to go on for a lot longer. Woodin noted that it is not uncommon for a file to go on for two, three, or even 4-5 years. Finally, litigation presents an unpredictability to the files: “anything can happen at any time… it’s a very difficult thing to control… we spend our lives trying to control the process and the narrative… all the while recognizing that we can only exert so much control. It’s about getting comfortable with the never-ending objective to assert as much control as you can while recognizing that you will always be stopped at some point along the way.”

How is the daily life of a litigator different from other lawyers?

Woodin commented that litigators tend to have more files open at one time than corporate/commercial lawyers. “You have to get comfortable with having a lot of open books... you’re reading a lot of books at the same time… I think that’s the real difference between litigation and corporate work.” Woodin also commented that in corporate work “a file opens, you deal with it, and then you close it… you might be working on three deals at the same time, but you’re not working on them for as long or often as intensely at the same time as you would in litigation.”

How does litigation change depending on the level of court?

Woodin noted that at the trial level “we are more likely to be dealing with people, credibility of documents, and admissibility… it is much more of a procedural experience… you’re really focused on the evidentiary issues.” However, she mentioned that this experience changes once you move to the appellate level. “On appeal you are really focused on the concepts… is this right as a matter of law, policy or fact? You are less absorbed by actually undertaking the procedure, and more focused on the right or wrong of the issues… for this reason some people gravitate towards trials and others prefer appeals.”

How is class action different from other types of litigation?

Woodin finds several differences between class action and other forms of litigation: “number one, [class actions are] designed to litigate issues that otherwise wouldn’t be economic to litigate… you have class action because nobody's going to sue individually. Right out of the gate you're litigating pretty novel issues, because when we didn't have class actions, people couldn't litigate them.” Woodin noted that the unique structure of class actions lead to numerous procedural precedents of how class actions should work, while at the same time answering substantive questions about what people’s rights and remedies should be.

“Class action attracts people who are really interested in the evolution of the law. It tends to attract people who are real students of the law because they’re excited to read the next chapter in the book… and it’s a chapter that has not been written yet.”

Woodin also mentioned that class actions are more likely to delve into policy issues than other forms of litigation may be. She noted that this raises questions on the role of the legal system for such issues: “do we want courts to regulate this kind of conduct? Is this actually misconduct? The procedure is supposed to not define the substance, right? Class actions aren't supposed to change our substantive rights. They're supposed to help us understand what they are, but the reality is that the procedure is so powerful that it very much interacts with the substance of the law… if you torque the procedure too much, you're going to get different outcomes in terms of the substance…we have to be really alive to how the procedure is relating to the substance, because we can produce results as to what people's rights are because of the procedure that we choose, that's to some degree inevitable, but it can be abused.”

How has class action changed in the past 5-10 years?

Woodin has seen notable change in class action over recent years: “I would say we've sort of come through the initial excitement about class actions. Courts are becoming much more sophisticated about whether they want to invoke class actions to do certain things.” She commented that in the early years of class action in Canada, it seemed that almost all class actions were seen as good. Woodin thinks that this perception has changed in recent years. “Now we see that class actions have limits and certain kinds of cases are better litigated outside of a class action, because there is real variability in how people experience an event… if there's real variability, in that a class action is not a good idea, it's not helpful to the plaintiffs or the defendants. If you're a very badly injured person… I am not sure you would want to be in a class action… class actions produce justice for all which sometimes can come at the expense of the best justice for one, and I think our courts are much better at understanding the value proposition of class actions now.”

How is class action likely to change in the next 5-10 years?

Woodin predicts that courts will become increasingly involved in policy setting for class action issues. “I think we’re entering an era where our governments are actually trying to leverage the class actions system to offload policy making to the courts or to private litigants… if you look at tobacco, if we look at opioid litigation, environmental litigation… the Competition Act has been amended recently to make it easier to sue on performance claims. These are fact patterns that are super difficult, and they would have, I think, traditionally been the arena of our legislators.”

Woodin has questions for this trend in class action. Topics like: “are we going to permit this kind of conduct? Are we going to regulate the sale of a product, advertising around the product, or whether it can be sold at all? Those are hard policy choices. We're seeing this in Canada and the US… we're seeing legislation being set up, particularly in Canada, to permit private litigants to come in and sue in respect of what we would traditionally understand as a public issue.”

Woodin predicts that we will see more of this policy offloading in the coming 10 years. “Whether the courts should be deployed in that way is a whole different question, because courts have a pretty specific function which is to award remedies for actual injuries, not to shape social policy… I think a lot of class action judges would say that we have to be careful about [courts becoming more involved in policy] because they are not equipped to develop sophisticated policy.”

Do you have any advice for current law students to prepare them for a career in litigation?

Woodin mentioned that “focusing on your reading and writing skills is incredibly important… being a good writer, and someone who can explain reasoning well is essential… it’s not about being a good arguer or debater... it’s about communicating your reasoning in a persuasive and clear way… the more time you spend on that, the more confident you’ll be as a young lawyer.” She mentioned that having a well-rounded background is particularly helpful for class actions, as class action is a procedure that can apply to various different industries and topics.

Do you have any advice for current students on how they can improve their oral advocacy skills?

Working in clinics and gaining hands on experience speaking to people is critical according to Woodin. A lot of the work is “talking to clients and understanding what they’re saying... developing your communications skills in that way builds a lot of confidence.” She also mentioned that mooting opportunities are a great way to build advocacy skills.