An Interview With Marco Falco

Appellate Litigator

Marco Falco is a partner in the Litigation Department at Torkin Manes specializing in appellate litigation and applications for judicial review. He has carved out an impressive niche for himself in this area of law, and he is among a small cohort of lawyers in Ontario whose practice is wholly focused on appellate litigation and judicial review. Given his passion for the area, it is no surprise that Falco has repeatedly won Lexology’s legal writing award for his publications on appellate and civil litigation since 2019. Additionally, as an alum of the University of Toronto Faculty of Law, he stays connected to the school through his active involvement with the University of Toronto’s alumni mentorship programs.

Path to Litigation

After completing his MA in English and contemplating a PhD, Falco ultimately decided to “take the plunge” and apply to law school, which had always been in the back of his mind. He never studied law previously and went in with very little ideas about what to expect. “I can say that I had absolutely no idea what I wanted to do with my law degree in year one, nor do I think anyone should,” he says. His first year of law school was dedicated to trying to understand the universe of law, and he focused on this intellectual exercise without worrying too much about what he would be doing years down the line. For him, it was important to keep an open mind about all of his courses and to experiment with many different subjects.

Falco places great emphasis on not shying away from new or unexpected experiences, and this is probably informed by the fact that his own interests were shaped by a few especially memorable courses and volunteering opportunities. In particular, he recalls two courses that had a uniquely profound impact on pushing him towards litigation. The first was Professor Denise Réaume’s class on Discrimination Law. “She took this really intellectual approach to the underlying ideology of discrimination law, and I suddenly realized that in my life, I wanted to do something that was highly legally based, that dealt with case law, and that dealt with the development of the law,” he reflects. The second was a course called Poverty Law taught by the now Justice Lorne Sossin of the Ontario Court of Appeal. This course taught Falco about the fundamental policy concerns that law can affect, and this got him thinking about the ways in which he could be a part of creating social change through the legal profession.

In keeping with these interests, an experience Falco describes as “one of the most rewarding experiences at the school” was his involvement with Pro Bono Students Canada. At the time, Halpern v. Canada – an Ontario case that challenged the constitutionality of defining marriage as between one man and one woman – was winding its way through the courts. Canada was one of very few countries in the world advancing this issue, and it was ultimately through a court caveat that same-sex marriage was legalized – an instance where the legal system produced material social change.

As a member of the LGBTQ+ community himself, Falco had a personal interest in following Halpern, so he reached out to the firm handling the case, and through the PBSC, he was able to participate in a very hands-on manner. For instance, he recalls helping to write the section 7 Charter arguments in favour of same-sex marriage. “No one really [knew] what we were doing because we were asking the judges to do something completely unheard of at the time,” he says. The idea of being able to tread across uncharted legal territory and contribute to advancing social change was incredibly rewarding for Falco, and it helped to further inform his already burgeoning interest in litigation.

When it came time to undergo the 2L summer recruit, Falco knew he was inclined towards litigation, but was not sure about pursuing private practice. He had often imagined himself working in the public sector, given his progressive inclinations, but when he interviewed with his current firm (that’s right, he started working at his current firm in his 2L summer) he was able to see what a great place it was. “It was at that point that the litigators in my department really inspired me,” he shares. “I saw what they did during my 2L experience, and I saw what they did during articling, and I thought: This is what I want to do.”

Falco will be the first to tell you that his career path is not necessarily a common one. He recognizes that he was quite lucky to have found a great firm very early on where he could see himself developing his career long term. However, he wants to emphasize to current students that your 2L job does not, by any stretch of the imagination, have to be a career-defining moment. “I don’t feel like there should be that kind of pressure on students. If you don’t get the 2L job, you still have a lot to offer this profession, and you will find your way,” he says. But for Falco, Torkin Manes represented a place where he could see himself realizing a fulfilling career, and it was there that he was able to explore his particular interests within litigation.

Appellate Litigation and Judicial Review

Falco’s litigation practice focuses on appellate litigation and judicial review, and this is an area that he naturally gravitated towards as he gained litigation experience. As a young lawyer, his work often focused on judicial review applications, and as his career advanced, he moved towards doing more and more appeals and appellate court work.

“I just find it, personally, the most fascinating because it really allows you to hone three primary skills that I’ve tried my hardest to work at, and that is reading, writing, and speaking. And I find that with appellate litigation, you can actually make great strides in trying to challenge the law as well, or help it develop in very important ways, mostly just because you are dealing with courts that have the capacity, power, and jurisdiction to do so.”

There are quite a number of differences between appellate litigation and the work of trial litigators, and it is becoming more common in Canada to distinguish these specializations. The Americans are ahead of Canadians in this respect, as they have long held appellate advocacy and judicial review as a separate sphere of expertise from trial litigation. The system in Ontario is gradually evolving in that direction, and a few professional organizations for this specialization have started to form. But there are still not very many lawyers out there who spend most of their time just focused on appellate litigation and judicial review. “It’s a very different skill set [in comparison to trial litigation],” he shares. “I don’t spend my days cross-examining witnesses. I spend my days drafting facta, thinking about legal issues, and how to advance a proper oral argument…It’s a different beast. It requires a very different area of specialization in my view, and I think the profession is starting to become more and more attuned to that in Canada.”

For Falco, what he found attractive about appellate litigation and judicial review was its focus on the substantive law and advancing arguments about the law itself. An appellate court proceeding looks very different from that of a trial court, and the judicial review process is very different from the tribunal one. At these higher levels, the arguments become more abstract. It is not so much about evidence or findings of fact because the record has already been established by the lower court; rather, it involves arguing about legal principles. “It’s often a difficult thing to explain to clients because they understand the facts, they understand their narrative, but now I’m going to be talking to them about why we need to change the law on limitation periods in Ontario, or why this particular branch of negligence needs some modification or tweaking, and this is the argument we advance on [their] behalf,” he explains.

The purpose of a judicial review application or an appeal is not to retell everything that happened, unlike at the trial level. Rather, it is about picking two or three key issues and either explaining why the court below got it wrong, or alternatively, why the court’s decision should be upheld. It requires coming up with arguments about the law itself and presenting them to courts that have greater jurisdiction to decide in novel ways. Elaborating on his interest in this area of law, he says, “there’s something about having a particular intellectual curiosity towards legal development, and I think that’s why I gravitate towards this area.”

Diversity and Inclusion

Among the many hats that Falco wears, one very important one is his role as a co-chair of his firm’s Diversity and Inclusion Committee. He emphasized that meaningful diversity within the profession requires more than just tokenism, but actual inclusion in the profession and ensuring that its constitution is truly diverse. “On a basic level, it starts off on a foundation of education, humility, and understanding what diverse groups can bring to the profession,” he says. He adds that the profession itself has much to gain from the inclusion of diverse experiences, backgrounds, and perspectives, and that there is a real economic case for prioritizing diversity and inclusion.

During Falco’s career, he has witnessed and been a part of meaningful changes not just within the legal profession, but also in terms of what the legal profession is capable of in advancing the values of diversity and inclusion more broadly. For example, Falco recalls how during his law school days in the early 2000s, the idea that two men or two women could get married was a foreign concept. But this is an area of the law that has changed and progressed since then, with lawyers and law students having been an important part of this process. It goes without saying that the work has only just begun – the profession is nowhere near perfect – but it is important to recognize the influence that lawyers have when they choose to direct their efforts towards achieving substantive equality in whatever area it may be. This is particularly true of litigation, where ideas and arguments in favour of social change can be brought forth “through the voice of good judicial reasoning.” And with this unique power that litigation has, there is all the more responsibility on the legal profession to itself be representative, and to take seriously the capacity of legal reasoning to bring about meaningful changes in the law.

Advice for Students

One of the themes that ran through Falco’s reflection of his own experiences was the importance of keeping an open mind. He wants to impart to students that they should apply to many different types of opportunities, and to not cross things off just because they pre-emptively judge themselves to be an uncompetitive candidate, even for jobs, like clerkships, that may have a reputation of only seeking top students. “I think people are more receptive to understanding that it’s not just grades that make effective counsel or effective judges…It’s grades in combination with a whole series of other things, like empathy and concern for others…I think you owe it to yourself to apply,” he says. “I wouldn’t want to discourage others who have other forms of life experience from applying on the basis that it’s only based on grades.”

Falco also shared that his biggest piece of advice for any student is: “Don’t be surprised by how things will change.” Students may have a particular inclination now about what they wish to practice, but they may take a course that allows them to discover a whole new interest, leading them changes their plans. Falco wants students to know that this is something they should be receptive towards. And on the other side of that coin is the advice to not be discouraged if things don’t go exactly as planned or imagined: “If you don’t get that 2L big law job and [instead] go work for a sole practitioner in criminal law, you might find out that you love criminal law all of a sudden. I don’t think it matters whether or not you secure a job at a big firm or not. I think, fundamentally, it’s about: Have you landed in a place that will make you happy? And have you landed in a place where you see yourself in 20 years? I was lucky because I landed in that place quite early in my career, but that is not the narrative of most people.” As such, it must be with an open and adaptable mind that students enter the forthcoming stages of their career.