This brief article is designed to give some insights to the profession as to what is required of an advocate in the new regime where mandatory time limits on the argument of counsel have been imposed by the court. I anticipate that the reader, upon reflecting on what I have to say, will recognise that my suggestions propose nothing radical and indeed set out no more than my observations as to the way successful counsel have presented argument in the Court of Appeal, certainly from the outset of my experience.
It is trite to observe that advocacy is the art of persuasion. In the modern setting of the Court of Appeal that means making effective use of your greater knowledge of the specific case on the court’s docket to assist the panel of judges to arrive at a proper result: your result. Unfortunately, too many counsel regard their role as that of verbal gladiator and that of the court as an informed audience. Consequently they resent any intrusion on their performance, not recognising that their client’s case is not being judged on form but on substance. However, the reality is that the court is committed to time limits on oral advocacy and subject to seeking adjustment to the time allotments in the particular case, counsel must learn to live with them and indeed exploit them to their client’s advantage.
I start with a quotation from The Conduct of an Appeal by Sopinka and Gelowitz:
In order to argue effectively in the face of a time limit, the argument must be prepared having regard to this factor. Unfortunately, some counsel do not plan at all, and find that they have frittered away the time available on preliminaries or non- essentials. Others decide to argue the appeal as if time is unrestricted; they just argue it twice as fast. The result, usually, is that the benefits of oral argument are seriously compromised.1
I agree with this overview of the problem and hope to give counsel some guidance as to how they can make the most effective use of the time allotted to them. The first and most obvious tool in the effective presentation of your appeal is the factum. In my opinion, it is as if you were permitted to write a letter to your judges which they can read at home in their studies. Take full advantage of the opportunity. My colleague Justice Laskin has prepared a paper on the content of this document and I do not intend to encroach on his subject. My comments will be limited to the use of the factum in the course of your argument.
A second useful tool is a compendium of extracts from exhibits, transcripts and authorities that you propose to rely upon. This is not only useful in complex cases, it is essential, if you are to avoid the waste of time and loss of focus that inevitably accompanies the search by panel members for the document, transcript or authority to which you intend to refer. The court has encouraged the use of such compendiums.2 Oddly enough, although a number of counsel have realised the value of such a compendium, they then dissipate its usefulness by not handing it up until the opening of argument. The panel members can hardly read it and do justice to your oral submissions at the same time. If it is worth looking at during argument, how much more useful it would be to have it in advance.
Again, and on the same theme, where it is not practical to use a compendium or the compendium does not contain everything that counsel wishes to rely upon, ask the registrar to select the material that you will be referring to and set it out beside the individual judges. The assistance of the registrar will be of particular assistance to counsel for the respondent who will not be sure of what he or she will be relying upon until the completion of the appellant’s argument. This assistance can usually be sought during a recess, but if there is no convenient time and the court is sitting, do not hesitate to ask the panel to set aside the material you are relying on before commencing your submissions. The panel will not consider that a waste of time.
Finally, as part of your preparation, do not make the mistake of needlessly replicating your opponent’s material in your Book of Authorities. As a practical matter, this advice is directed to the respondent’s counsel. In almost every case, the number of directly relevant authorities is limited. If they are important cases, they can be found in different law reports. There is no reason for duplication. There is definitely no need to have reports from different reporting services. The panel members usually mark up their copies or make notes in the margins and it is obviously helpful to have all these notations in the same place. I have sat on cases that lasted a week in which the appellant, the respondent and a number of intervenors have referred over and over again to the same cases and insisted that the court look at the photocopy of the case that is in their book of authorities “because I have marked in my copy the passages I am relying upon”. Counsel must be flexible. Do not unnecessarily tax this ability in your judges.
Now to the oral presentation. First and foremost, believe the president of the panel when he tells you that the members of the panel have read the facta of the parties and the judgment in appeal or the relevant portions of the charge to the jury as the case may be. Assume that the panel is familiar with the facts and is aware of the legal principles involved. Counsel should be prepared to proceed directly to the argument. I can assure you that the members of the panel are well prepared before going into court. Each has his or her own standard of preparation, just as counsel have, but do not think for a moment that they have not prepared themselves sufficiently so that counsel can proceed to develop any point in the argument without being concerned that it will not be understood. Just as the court will not insult counsel by questioning counsel’s readiness, and thus competence, do not offend the panel by proceeding on the assumption that its members do not know their responsibilities under the new regime. Their state of preparedness will usually become evident as the argument proceeds and individual members ask for amplification or clarification on the facts and issues. These interjections will help counsel to understand what matters are of concern to the court and they should be answered fully and directly. By responding knowledgeably and immediately, counsel can demonstrate familiarity with his or her brief and start to establish a comfortable rapport with the panel.
I suggest that your opening should establish which points in your factum you intend to argue orally, which ones you are abandoning and which ones you feel that you have developed sufficiently in your factum that you do not think you need deal with them in oral argument. Make it clear, however, that you are still relying upon the written material in your factum as part of your argument.
This opening is critical and gives counsel the opportunity to exercise some much-needed judgment as to what are the most significant issues in the appeal. It also sets the agenda for the appeal itself. Your opponent and the court will be responding to your presentation. In any given case, the most significant issues cannot number more than three. As an aide memoire to be attached to every counsel’s brief, permit me to state unequivocally that no judge in a single trial has made more than three reversible errors. Counsel may think the judge has made many more, and the panel members may have their own thoughts, but that is an impermissible thought process for the true advocate. Three is the outside number for judicial purposes. Look at it this way: the appellant needs to establish only one reversible error to succeed and the “rule of three” gives counsel three chances to achieve that result. If counsel proceeds to argue that there are more errors than that, counsel is acknowledging failure with respect to the first three.
Limiting the number of issues to be argued is just good clock management. Counsel should concentrate on the issues that are likely to carry the court and leave in the factum others that while superficially appealing are not going to result in overturning the judgment below. Some, such as suggestions as to costs, will not come into play unless you win the appeal and you lose nothing by relying on your written treatment in your factum. The same applies in reverse in criminal cases when the sentence appeal is premised on losing the conviction appeal. Unless the true focus of the appeal is sentence, or counsel is relying upon fresh evidence, counsel can usually leave the sentence appeal to be decided on the basis of written argument.
I have emphasised the importance of your factum. Assuming it is first class, leave it alone in oral argument. While you should not ignore it, under no circumstance should you read from it. In stating the points that you have decided to argue orally, simply indicate to the court where the issues are set out in your factum. The oral argument must be prepared separately from the written argument and should complement, not repeat it. Proceed orally but follow the pattern of your factum i.e. a brief overview and then to the first and strongest argument. It is in the argument that you commence dealing with the detail of the facts but only in relation to the legal principle that you are advancing. Any effective counsel has developed the art of co- mingling the facts and the law to present a seamless argument that puts the client’s position in the most favourable light.
Remember always that this is your argument not the respondent’s. Do not make the mistake of commencing your argument by responding to points made by the respondent in its factum. First of all this is an acknowledgement that your factum is incomplete, or worse has misstated the facts or the issues. If there is some deficiency in your factum that has been exposed in the respondent’s factum, rest assured that some member of the court will ask you about it. This gives you your best opportunity to respond to the problem. Failing a question from the bench, the substance of the point or points raised by the respondent can be dealt with affirmatively in your own argument. Remember that if you start out by referring to the respondent’s factum, a lot of things can go wrong. First of all, you may be accused of misstating the point raised by your opponent and waste valuable time trying to explain what your opponent is saying while at the same time trying to convince the court that it is wrong. Secondly, you are using up your allotted time on the defensive instead of attacking the errors in the judgment or verdict in appeal. Thirdly, you have foreclosed your ability to reply to the respondent on the particular issue.
As to the merits of the argument, in my experience the most consistent mistake made by appellants’ counsel is in failing to recognise the limited jurisdiction of the Court of Appeal. We are not a trial court and we do not conduct trials de nova. We are a court that reviews the record of the trial or other proceedings in a lower court or tribunal. We must be persuaded that the court or tribunal below made an error and that it is an error of sufficient magnitude that we cannot allow the decision under appeal to stand. While we are a statutory court with jurisdiction over fact, we are restricted severely with what we can do with findings of fact. There must either be no facts to support the finding or the finding must be subject to palpable and overriding error.3 I am aware that language has been used by appellate courts that is more appellant friendly such as the trial judge “misapprehended the evidence”4 or “failed to give proper weight to the evidence”,5 but I can tell you that the practical hurdle in our court is to establish that there is no evidence to support a finding or that the finding reflects palpable and overriding error. Our appellate court will only resort to the lower threshold of factual overview in the course of discussing a judgment that, over all, it is satisfied is wrong. It is very difficult to argue that the trial judge has misconceived the facts to the point that the judgment cannot stand. A more effective strategy is to make use of uncontroverted facts in the framework of a legal argument directed to exposing flaws in the judgment.
Accordingly, in dealing with facts on appeal, it is most unwise to attack the trial judge’s findings directly unless you are confident that you can establish the higher threshold of appellate intervention. Unfortunately, some counsel, forgetting that the court has read the material, attempt to embark upon an analysis of the evidence under the guise of a submission that they can demonstrate that there is no factual basis for the findings of the trial judge or that the findings disclose palpable or overriding error. While they have no expectation of accomplishing their stated objective, they hope that a review of the evidence will persuade the court to substitute its opinion of the facts for that of the trial judge. They want to review the evidence in the hope that they can persuade it to arrive at a different conclusion than the trial judge. In other words, they want to retry the case in the court of appeal; something we will not permit. By obtaining permission to embark on a detailed examination of the facts on a false premise, counsel loses credibility with the court, not only on the instant case but for the future as well. No case is worth it.
My earnest suggestion is that when there is evidence that supports findings of fact that are adverse to your position, you should state that you are accepting the express findings of fact of the trial judge and are aware that his findings of credibility have taken away arguments that you relied upon at trial. You should then proceed upon the trial judge’s account of what the evidence revealed supplemented by additional uncontroverted facts or ones that, while contentious, were not the subject of express adverse findings. This most favourable and sustainable version of the evidence will hopefully give you a sound enough factual base that you can relate your version of events to the law and demonstrate that in the final result, the trial judge was in error.
Like most articles on appellate advocacy, the focus of my remarks has been upon the presentation by the appellant. However, my advice to the respondent is very much the same. I emphasise once again the importance of the factum. If anything it is probably more important. If it has been done properly you will notice that questions from the bench have their genesis in your written material. However, do not make the mistake of reading what it is obvious the court has already read.
Last, but by no means least, I come to what is potentially the most effective, but regrettably, the most misused tool of advocacy: the reply. This is counsel’s opportunity to get in the last word and unfortunately, in too many cases, that last word does not always assist. Your first consideration is: should I say anything? Believe me when I tell you that saying nothing is never a mistake. Silence may not advance your case but it most assuredly will not hurt it. Many counsel feel that if they do not say anything the court will assume that they have nothing to say in response to the respondent’s argument. So rather than leave the court in doubt on the matter, they remove that doubt by standing up and repeating what they have said in their argument in chief.
If you do decide to reply, be sure to invoke the rule of three i.e. write down all the points to which you wanted to reply and throw away all but three; the best three. Once again, the immutable rule of advocacy is that the fourth point in reply never won a case and in many cases convinced the appellate court that there really was nothing in the appeal after all. This was a good rule before the introduction of time limits. It is a better rule now. Remember that your reply was part of your original time allocation as the appellant. The chances are that you did not reserve any time to reply. Limitations on reply are rarely enforced as such, but if they are, you know that your reply has been ineffective.
On the other hand, a good reply can be devastatingly effective if you can score but one point. If the respondent has raised an argument against you that you did not anticipate in your argument in chief and that point appears to have caught the attention of the court and you can refer the court briefly to a portion of the evidence or an authority that has not already been addressed and your reference does provide an answer to the court’s concern, then by all means reply. Note that there are three conjunctives in the last sentence. Again, be reasonably certain that your friend has made a point that appears to have raised a concern with at least one member of the panel. If your opening argument has been well received, do not encourage the court to become interested in a matter that it has not focussed upon. You can usually determine the extent of the court’s interest in your opponent’s argument by questions from the bench and sometimes by the lack of them. If your assessment is wrong, the court will usually ask you about the matter in issue.
A proper reply should not require an extended introduction. If you have to introduce your point by restating your opponent’s point at length, you run the risk of having a member of the court correct you or indicate that you have quoted it out of context. Never give a judge an opportunity to articulate your opponent’s position. He is likely to embrace it as his own. Similarly, do not be in a hurry to embrace a suggestion made by a member of the panel during your opponent’s argument and attempt to make it your own. The judge who made the suggestion is unlikely to be impressed and the other judges might think it was a very bad idea.
Lectures and articles on advocacy usually contain more “don’ts” than “do’s” which causes your audience to wonder if you have anything useful to offer. However, reply is for experts. If your factum is sound and your presentation appears to have been well received, you can be sure that each of the individual panel members has probably arrived at least at a tentative view of how he or she intends to vote. Learn to leave well enough alone.
I turn last and briefly to the matter of answering questions from the bench. My advice is that you answer them briefly and immediately. Leave out the old chestnut: “I will be developing my response to that question later on in my argument”. Chances are you will not have a later on.
As to the type of question that you can expect, I can do no better than to refer you to an address by the Honourable Mr. Justice Ian Binnie to the Criminal Lawyers’ Association on the occasion of the first John Sopinka Advocacy Lecture on November 27, 1998. The address, entitled A Survivor’s Guide to Advocacy in the Supreme Court of Canada, is authoritative and reflects Justice Binnie’s irreverent sense of humour. I strongly recommend the section entitled “Questions from the Bench: listen before you leap”. His analysis of the types of questions counsel may expect from the panel is witty and insightful. I cannot improve upon it. Fielding questions can be difficult. My only contribution will be examples of some very bad answers.
1. I was not counsel at trial
2. I did not prepare my factum
3. That isn’t in my friend’s factum
4. I did not understand my friend to have said that
5. My friend would have the court believe
6. The trial judge did not deal with that
7. I will be coming to that later in my argument
8. My colleague will address that point
Some of my readers may have expected this article to contain a more detailed road map to success in the Court of Appeal, but over the course of what has become a lengthy exposure to the appellate process both as counsel and as judge, I have come to realise that appellate advocacy is the most difficult of forensic art forms. The heart of what counsel must contend with is to be found in the nature of a review process that limits significantly the control counsel has over the proceedings. Unlike trial work where the judge is captive to counsel and must wait for them to lead the witnesses and build the evidentiary record, in our court the record is set and an adjudication on that record has already been made. Consequently, the control counsel had at trial over the flow of the proceedings has disappeared. Counsel must now anticipate the concerns of an informed panel of judges and is not in a position to proceed on a pre-determined course of advocacy. Accordingly, there is no set piece structure for an appellant’s argument. All counsel can do is analyse the judgment or verdict in appeal and direct his or her forensic skills to what counsel perceives to be the areas most vulnerable to attack. If you can proceed without significant interruption, you are on the right track. If interruptions occur, you must respond to them and then try to return to your original plan of attack. It is not an easy task, but it can be an immeasurably rewarding one, for you and your client.
George D. Finlayson
1 (Toronto: Butterworths, 1993) at 216.
2 See Dubin C.J.O.’s Practice Direction Concerning New Scheduling Procedures for Civil Appeals dated December 18, 1995 at s. VII.4: “In a complex case, counsel are encouraged to file an extract book for the use of the panel hearing the appeal. The extract book should contain relevant extracts from the appeal book and transcripts of evidence and relevant case references.”
3 Stein v. The Ship “Kathy K”,  2 S.C.R. 802.
4 R. v. Baranski (1994), 71 O.A.C. 157 (C.A.) at 158.
5 Nemeth Estate v. McGuffin Estate,  O.J. No. 553 (C.A.) at para. 5.