Behind-the-scenes at the appellate courts

December 2010

Panel distills elements of effective appellate advocacy

A word of advice for lawyers about to appear before the Quebec Court of Appeal or the Supreme Court of Canada: be well-prepared, be punctual and above all, be respectful.

Basic considerations, perhaps, but such words of experience are to be ignored at each advocate’s own peril. Do you want to be the lawyer who misses your appeal before the Supreme Court because of a flight delay? It has happened before. Or the lawyer whose factum is so turgid the judge dreads not only reading it but also hearing the case? It’s an unfortunate, but avoidable, fate over which every appellate lawyer has control.

On October 26, Quebec Court of Appeal judge Allan Hilton and Dean of Law Daniel Jutras, a former Executive Legal Officer for Supreme Court of Canada Chief Justice Beverley McLachlin, debuted a new season of continuing legal education lectures at the Faculty of Law with three hours of advice, discussion and anecdotes about presenting a case before an appeals court.

As counter-intuitive as it may sound, Jutras said, a successful appeal to the Supreme Court of Canada begins with a leave application that convinces the Court to hear the case regardless of outcome. Rather than seek correction from the Court for a previous judge’s decision on the matter, the application emphasizes how the case addresses an issue of national importance or significance.

A similar philosophy guides the Quebec Court of Appeal, said Hilton, who is the Faculty’s judge-in-residence for the 2010-2011 academic year. “We want to make sure that the case is one that has a broader interest than the parties that are presenting the application and if you can’t persuade us of that, the chances are that your application is going to be dismissed.”

Effective persuasion remained a theme throughout the evening, with the written factum taking center stage as a crucial piece of the case. “The factum is our first contact with you,” Hilton said. “It is our first impression of you. It needs to be written and rewritten until it is clear, concise, and above all, persuasive.”

With Quebec Court of Appeal Chief Justice J.J. Michel Robert also in attendance for the evening, Hilton offered a glimpse of the workings of the Court with a run-down of its numbers. In a typical judicial year, a Court of Appeals judge hears anywhere between 160 and 200 appeals, which works out to between 15 and 19 appeals per panel of judges per week, he said.

The Supreme Court of Canada grants leave to between 50 and 55 cases, or about 10 percent of the 550 leave applications it receives, per year, Jutras offered by way of comparison.

In light of the Quebec Court of Appeal’s heavy case load, a well-written factum becomes all the more crucial to an effective appeal and, having seen hundreds of factums, Hilton was impassioned in his dissection of the good ones.

“A factum should be written more like something you would see in a good newspaper, rather than in a trust deed or a notarial will. You want to make your factum sing; you want us to say, ‘Wow, was that a good factum! I want to hear this lawyer plead.’”

Too often, a judge’s reaction to a written factum runs more along the lines of, “Oh my god, I’m going to have to listen to this poor guy,” said Hilton, to audience laughter, burying his head in his hands in mock despair.

Jutras also took the opportunity to unveil a behind-the-scenes glimpse of the Supreme Court, drawing attention to the Court’s little-known “sundown rule.” Once the Court hears a case, he explained, “the judges retire to a room immediately behind the main hall and the sundown rule is that they have to have a consensus on the case before the end of the day. In fact, they usually have it within an hour or 90 minutes.”

What does this mean for appellate lawyers before the court? “Your job during the oral advocacy is to make matters simple. Narrow the domain of controversy to the two or three issues that they might disagree with around the table.”

Jutras had additional advice for lawyers preparing to appear before the Supreme Court: practice the case beforehand. The Supreme Court Advocacy Institute provides one venue for a trial run, he said. All lawyers who are granted leave can take part in a moot before a panel of three lawyers who have argued before the court; the SCAI provides this service free of charge.

Above all, Jutras said, when appealing a case before the Supreme Court, decorum is paramount. “Never speak over a judge,” he warned ominously. “The second a judge opens his or her mouth, you close yours.”

“Never praise a question [by saying], ‘Oh, your honour, that’s such a good question,’” he said to the audience’s amusement. “They know it’s a good question. They’re on the bench.”

After presenting a series of pointers about material preparation and argument structure, Jutras offered another tip on effective advocacy: knowing when to stop. “When your time is up, sit down,” he stated, upon which he took his own advice and sat down to animated applause.

The next session of the Continuing Legal Education series takes place on November 30 and features Professors Catherine Walsh and Yaëll Emerich discussing secured transactions. See the CLE website for more details.

Photo courtesy of Wally Gobetz, Flickr Creative Commons

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