An Interview with Gillian Kerr

During the 2022 fall term, 1Ls at the University of Toronto Faculty of Law wrote a legal memorandum about a fictional newspaper that was sued for defamation by a fictional restaurant. The students were asked to analyze whether an anti-SLAPP motion by the newspaper would be successful. SLAPP suits are a tactic used by individuals and corporations to silence their critics. In 2015, the Ontario Legislature enacted the Protection of Public Participation Act. The Act permits defendants to seek to have the action against them dismissed through an anti-SLAPP motion.

The hypothetical given to the 1Ls closely resembles Subway v CBC, a defamation case brought by Subway with respect to a program which aired on Marketplace dealing with the composition of chicken in their sandwiches. Gillian Kerr, a leading Bay Street litigator and a partner at McCarthy Tétrault, was counsel to CBC for the case. “I am extremely proud to represent the CBC and they are a terrific client to work with,” remarks Kerr.

Regarding the high-profile nature of the case, Kerr says, “I do very much like working with high-profile clients. You really have to understand your client’s business, who they are, where they are going, and where they have been. For me, that makes the exercise such much more fun than just reading a fact pattern.”

This ability to take the long-term interests, reputation, and prospects of clients into account when managing a file has made Kerr the trusted advisor of many high-profile businesses and political leaders.

The Twists and Turns: Journey to Becoming a Litigator

Kerr’s journey to litigation was not a straight path. “I absolutely did not from day one know that I wanted to be a lawyer,” recalls Kerr. “My parents did not go to university, let alone law school.” After studying Economics and Political Science at McGill University, Kerr decided to take a couple years off to think about what to do next. She taught English abroad in Japan for a year, then spent time working and travelling in France. Returning to Canada, she felt more convinced that law school was the right path for her and enrolled at McGill.

Orignally thinking she would go into public policy after law school, Kerr spent her first summer with an NGO in Vancouver. While the NGO was doing meaningful work, Kerr did not find the speed of the work exciting and realized that public policy work was not the right path for her. During her second summer, Kerr was part of a group at McGill Law doing work in intellectual property. She found the work enjoyable, but overly theoretical.

The turning point was Kerr’s third summer as a summer student at McCarthy Tétrault. “I was not thinking I wanted to be a litigator, but all of a sudden, I was thrown on this file,” recalls Kerr. Now she was dealing with real people, brainstorming concrete issues, and heading to court. “I was surprised by how exhilarating I found it. It was a lot of fun. Being an advocate is an art in storytelling. I think that is what first grabbed me about being a litigator.”

Life as a Junior Associate: Developing a Litigation Style

After graduating from McGill, Kerr returned to McCarthy Tétrault. With a large litigation department, the firm is home to of many Canada’s best litigators. As Kerr navigated life as a first-generation lawyer, those litigators served as mentors. “Growing up, lawyers to me were like characters in a John Grisham novel,” reminisces Kerr. Being around lawyers with very different litigation styles helped her see that she could be a litigator while still being authentic. “I did not have to take on a person of a character in a John Grisham novel to be successful. I could do it in my own way,” she says.

“Nervousness is the theme that I remember most from my junior years,” says Kerr. During her time as an associate, Kerr developed ways to overcome that nervousness. “One of the ways that helped in trials and motions was to forget about the courtroom. I imagine I am having a conversation with the judge. I focus in on whether they are following me, just like you would if you are in a dinner conversation where you are really engaged with someone.”

Kerr also developed certain habits when it came to preparing for court. She always has a hard copy of her brief of authorities with her own annotated notes. “I write on the tab of each of the cases what the points are that I would want to pull, or if it is my opposing counsel’s case, how I would distinguish.” Although she often does not turn to those tabs, her marked up brief of authorities provides a sense of comfort.

Public Sector Group: Bringing the Toronto Raptors Back to Canada

Although Kerr ended up choosing a career in litigation rather than public policy, she still frequently engages with public policy as the co-leader of McCarthy Tétrault’s Public Sector Group. Kerr co-leads this group along with Awanish Sinha and Matthew Kelleher. The Public Sector Group has three streams: political law, novel regulatory regimes, and complex transaction work where governments are involved. As a litigator, Kerr is involved in both the political law and novel regulatory regimes streams.

Political law is a robust practice in US law firms, but less so in Canadian ones. Kerr and Sinha seized on the opportunity and began growing the group. Political law can include allegations of ethics violations against public officials, alleged breaches of the Election Act, and preparing clients who have to testify at parliamentary committee hearings.

Kerr notes that her work in the political law sphere is a great complement to the skills she built as a traditional litigator. “You need to think about reputations. It is not just about what is the outcome, like is there going to be a fine. Rather, you need to think about what is going to happen to this individual depending on the nature of the findings that are made.”

The novel regulatory regimes stream helps organizations and governments when requested work through situations where the rules of the game are being drastically rewritten. The Covid-19 pandemic is one such example.

For fans excited to see the return of the Toronto Raptors to Canada in September 2021, you have Kerr in part to thank. Together with Sinha, Kerr helped the Toronto Raptors figure out how to get the necessary approvals to bring 50 people across the border and put them all in a room together. At a time when everyone was “locked in their houses and not able to do much, having a game to watch was I think a lot of relief,” says Kerr.

Advice for New Litigators: Authenticity and Communicating Your Needs

Leaving law school and starting as a litigator is a big transition. Whether it be going to court for the first time or trying to balance the demands of work and life, all of a sudden, young litigators are faced with unfamiliar challenges.

Often, it feel like there is pressure to fit into the traditional mould set by successful litigators. To anyone feeling this pressure, Kerr has advice. “Give yourself time and space. Do not check out too soon. There are a million ways to be an advocate.” Kerr recommends trying it in your own authentic way. “If you are doing something that does not feel like you, I think you will burn out too quickly. You will probably not be the best lawyer you can be,” adds Kerr.

Another challenge faced by young litigators is the difficultly of balancing the demands of work and life. “Sometimes it can feel overwhelming. Sometimes the easier answer is to check out rather than try to find a way to solve the problem,” says Kerr. This was exactly how she felt after returning from her first maternity leave. Straight away, she was assigned as the only associate on a long jury trial with two partners. “I had spent almost a year with my young daughter, spending 24 hours a day with her. All of a sudden, being in trial, that was a very difficult transition,” recalls Kerr. “We would come back from court and would have team meetings. By the time I could finally get home, my daughter was asleep so I would miss a day with her.”

Feeling defeated, Kerr remembers thinking, “I will not be able to do this job because I will not be able to see my kid. It is too hard.” Rather than keeping that feeling to herself, Kerr reached out to the partners on the file. She said, “I want to see my daughter before she goes to bed. I obviously will be doing all the work.” Kerr had her own witnesses and was conducting cross-examinations. However, “I want to do it on a different schedule. After court, I will go home and have dinner with my daughter, put her to bed, and then I will be up working.” Right away, the partners were completely supportive.

For a couple of exhausting months, Kerr was up until one or two in the morning every night. “But I got time with my daughter, and it made the job feel sustainable.” “If I had kept that inside and had not voiced how I was feeling to my team, I might have just thought that the job was not doable. I am so glad I talked to them because I otherwise would not be here today.” Kerr’s advice to all young litigators is to speak about what they need and to ask for help. This might sound surprising, but senior lawyers have been in the exact same shoes before.