How government works
Tax litigators in private practice often assume the government is all-knowing and all-powerful, with “a massive amount of resources and manpower to throw at litigation,” says John Grant, a former Department of Justice (DOJ) litigator. But that’s simply not true. “Often, the government is the litigation side that’s outmanned.”
The former government lawyer: Before joining Miller Thomson as a partner, John Grant was Crown counsel for 15 years. He has also been a tax litigation expert with Canada’s Department of Justice.
The in-house counsel: Eryn Fanjoy is an associate practising in Stikeman Elliott’s Tax Group.
Now in private practice at Miller Thomson in Toronto, Grant is sharing his insights with second-year Stikeman Elliott tax associate Eryn Fanjoy, passing along what he learned over the course of more than 15 years at the DOJ.
Over a lunch of black cod at the very busy Drake One Fifty in Toronto’s business core, Grant recalls that courtroom experience plus the opportunity to represent Canada on matters of national scope greatly appealed to him after he graduated from law school. “You’re immediately on your feet” at the DOJ, he says, unlike private practice. “There’s no better training ground than the government.” During his time in government, John worked on hundreds of files, including about 100 reported decisions.
The aim of government counsel should not be to win, Grant says, but to get the just result. “And by and large, that was the passion and driving force of many Justice counsel.” In comparison, in private practice, he says, clients want to win.
“It’s tough to have that conversation with a prospective client and say to them, ‘You know what? The law’s not there for you; the facts are not there for you. It’s not worth taking it forward.’”
Fanjoy asks about the most unexpected differences between government and private practice. Grant says a common misconception is that government litigators don’t log as many hours: in reality, the hours needed to address the same litigation steps are identical to those required in private practice. The difference is in the time spent on client development.
“What would have been a nine-and-a-half or a 10-hour day during the week turns into a 12- or 13-hour day with the extra hours added for client development,” says Grant.
Shifting to private practice involved making small changes, such as in timekeeping and document management, says Grant, but a bigger challenge was looking at cases from a non-Crown perspective. At the DOJ, Grant was involved in files that could affect Canada’s gross domestic product (GDP) if something went wrong. In private practice, working mainly with small- to medium-sized corporations, he knew he wouldn’t be directly involved in that type of file.
He says representing clients whose own money is at risk has been refreshing, challenging and rewarding. “You’re actually protecting their livelihood, you’re protecting what they’ve invested often the majority of their life in. Their contact with you is often heartfelt,” he says. “When you do something appropriate, and do it well, it’s a feeling you just don’t get in government.”
He has also observed that government lawyers are averse to risk, but not to settlement. In fiscal litigation, “they’re usually juggling protecting the government and protecting a certain body of jurisprudence,” he says. His takeaway from working with government officials? “If you want to attempt to settle, engage them early, because they’re open to it.”
One benefit of working in the government is that it’s comfortable, Grant says. “If you need clients, you just turn on a tap and the files miraculously arrive on your desk.” There is no such tap on the private side, of course.
Litigation at the DOJ tends to be team-oriented, adds Grant. “There’s such a structured team, really a safety net, that’s built around you,” including mentors who are always readily available. “You don’t feel bad about knocking on the door and wasting a seven-minute interval or a 14-minute interval. Their doors are always open.”
When Fanjoy asks Grant’s advice on choosing between tax planning or tax litigation, Grant’s advice is to begin with tax planning. “Even with my passion for tax litigation, I would say go into tax planning first. Get a depth and breadth of experience and knowledge in tax, and then use that to build a tax litigation career.”
Heading off to meet a new client after lunch, Grant shares a final observation: his new partners sometimes wonder if he’s having a hard time taking off the white hat. But he doesn’t see it that way.
“Whatever the right answer or the right result is, it is right whether you’re on the side of the government or in private practice.”