Observations on Advocacy from The Hon. John I. Laskin

In this episode, The Hon. John I. Laskin,  a former justice at the Court of Appeal for Ontario, sits down with Natalia Rodriguez, Partner at Conway Baxter Wilson LLP, to share his observations on oral and written advocacy. The wide-ranging discussion touches on the value and purpose of oral and written advocacy,  the questions in judges’ minds that advocates should address,  what makes a great factum, the importance of the moral high ground,  and much more.

Some of former Justice Laskin’s writings on advocacy are available to TAS members in The Advocates’ Journal archive:

1.    “A View from the Other Side: What I Would Have Done Differently If I Knew Then What I Know Now” (May 1998) 17:2 

2.    “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums” (August 1999) 18:2 

3.    “What Persuades (or, What’s Going on Inside the Judge’s Mind)” (June 2004) 23:1 

The Hon. John I. Laskin
The Hon. John I. Laskin was a Justice of the Court of Appeal for Ontario from 1994–2018. During his time on the court, former Justice Laskin made significant doctrinal contributions to every area of the law within the jurisdiction of the court.  A graduate of the University of Toronto Faculty of Law, Mr. Laskin had a distinguished 23-year career in private practice,  focusing on civil and public law. He served as the head of the litigation department at Davies, Ward and Beck and was counsel to three royal commissions and three provincial inquiries. 
 
 The Hon. John I. Laskin has long been a writer, speaker and lecturer on topics related to oral and written advocacy, judgment and decision writing, and related topics. An extraordinary and committed teacher, he gave generously of his time to his clerks, to counsel and to his fellow judges.

Natalia Rodriguez
Natalia Rodriguez is a partner at Conway Baxter Wilson LLP. She practices civil litigation and dispute resolution, with an emphasis on commercial litigation, public law litigation and appellate advocacy. She has advocated at all levels of court in Ontario, the Federal Court of Canada, and the Federal Court of Appeal, as well as in commercial arbitration proceedings. Prior to entering private practice, Natalia clerked for three justices of the Court of Appeal for Ontario and for Justice Louis LeBel at the Supreme Court of Canada.
 
 Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples.  We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
 
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
 
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.

Transcript

Speaker 1: 0:05

Welcome to Friends Who Argue a Podcast from The Advocate Society.

Speaker 2: 0:09

Each episode will bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys. As advocates,

Speaker 1: 0:20

We hope you'll find this podcast informative, inspiring, and most of all entertaining, and that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes, friends Who Argue is proudly sponsored by M N P, litigation Support and Dispute resolution, your expert partner for forensics valuations and litigation support, M N P, wherever business takes you.

Speaker 3: 0:48

Hello everyone. I'm Natalia Rodriguez, and I'm a partner at Conway Litigation in Ottawa. And I'm your host for this episode of Friends Who Argue. Today we are very fortunate to have our very special guest, John Alaskan, former Justice of the Court of Appeal for Ontario to discuss written and oral advocacy. Now, obviously, he needs no introduction, but briefly, John Alaskan is the author of many articles on advocacy, including Forget the Windup and Make the Pitch, some suggestions for writing More Persuasive Fact, an article well known to law students across Canada. He retired from the Court of Appeal in 2018, after nearly 25 years on that court, and I had the great privilege of clerking for him in 20 10, 20 11. Thank you so much for joining us.

Speaker 4: 1:33

You're more than welcome, Natalia. It's always nice to see one of my former clerks, one of my former favorite clerks. Oh, well, thank you. So let's have a, let's have a nice chat about advocacy.

Speaker 3: 1:42

I did not pay you to say that, but thank you,

Speaker 4: 1:44

<laugh>. I, you certainly didn't

Speaker 3: 1:46

<laugh>. Um, so I wanna start with a somewhat philosophical question. Do you think each case has one objectively correct outcome in light of the facts and the applicable law?

Speaker 4: 1:59

You know, when you ask that question, you know, to reminds me of, it reminds me of that infamous statement that Chief Justice Roberts made at his confirmation hearing. The judges are just like baseball empires, and they call balls and strikes. And, uh, you know, maybe it was the moment and he was in a confirmation hearing and he's entitled to some latitude. But if he really means that, uh, I just completely disagree with them, I, I think it's a really silly comment. There is no one right answer to a lot of cases. The judges decide. I guess I would acknowledge that there are some cases in which the results are reasonably clear to the vast midor majority of judges. You'd remember those cases from your time clerking with us. But there are a lot of other cases where it's not so clear, you know, and, uh, and honest, reasonable judges can come to different conclusions. You know, the law's not certain in many areas. You know, a lot of our standards are framed in general terms, our charter guarantees are in general terms, what facts judges choose to emphasize differ in the bottom line is, um, reasonable honest judges can disagree. Look at all the dissents in the Supreme Court of Canada. Look at the Chief Justice Roberts own differing opinion on Obamacare. I mean, it almost puts a lie to his own statement. So I don't, you know, I'm not one of those people who thinks there's one objectively right answer, um, to a question.

Speaker 3: 3:28

So, um, what do you think then the role, so how would you frame then the role of advocacy in ensuring the court reaches the most correct outcome or the most objectively correct outcome if there's not just one correct outcome?

Speaker 4: 3:45

Well, here I probably speak more as a Court of appeal judge, because of some of my former colleagues used to remind me, I was never a trial judge. I went from the bar to the Court of Appeal.

Speaker 3: 3:54

They reminded you of that. That's not very easy. Oh, all the time.<laugh>

Speaker 4: 3:58

All the time. But, you know, I mean, you know, from my view, advocate advocates advocacy plays such a critical role in our system, and advocates can do a great deal to get judges on the right track, both in their written advocacy and in their oral advocacy to, to persuade the court, uh, you know, to get it right, to get to their side. I've always thought, um, I mean, there's, there's two things I think important about advocates, um, that maybe is not always appreciated. Uh, point number one is that advocates should view their role as being there to help the court. Obviously, you, you as an advocate, you want to get the court to the position you're advocating for, but, but the court wants your help as an advocate, uh, to reach the result that, uh, that they think is right. And I think sometimes their advocates forget that role of, of helping the court. And, and I guess the second thing I think they sometimes forget is that, you know, results are not entirely legalistic. Um, you, you've gotta persuade judges why they should decide in favor of your client. It, it's so important because judges, I mean, we're hu we're human beings and they're trying to do the right thing. They're trying to get to a result that they think is just, that they think's workable, that they thinks reasonable, and the advocates gotta get them there. I don't know, were you on the court when, uh, chief Justice Morden was still on the court?

Speaker 3: 5:29

No, I, I had, I

Speaker 4: 5:30

Had, uh, you might have missed him, but yeah, I missed him. He was one of the great judges of our court and, uh, he, he gave a speech, and I forget where it was at many, many years ago, in which he basically said, you know, you can reduce persuasion to two propositions. Number one, tell the court why you should win. And number two, tell the court how to get there. It's the why you should win. That's so important. And I think, uh, number of advocates forget that anyway. We could talk a lot about, about advocacy, but in a nutshell,<laugh>, it's critically important.

Speaker 3: 6:00

So, on, on a related note, you know, as an appellate judge, uh, yourself as a former appellate judge, um, to what extent do you think errors in a first instant co instance court are related to poor advocacy? See,

Speaker 4: 6:16

Well,<laugh>, I don't know. It's easy to play Monday morning quarterback. I tell you, when you, when you look at a hardcore transcript and you weren't there, I mean, you know, there are that r those rare cases in criminal law, ineffective assistance of counsel cases, those are rare. But leaving those aside, sure, I mean, we, you know, when we looked at a transcript, there's some cases where we'd say, you know, why did, why did the advocate ask that question or line of questions on cross-examination that really hurt, uh, his or her client? Why didn't they explore this line of cross-examination? Why didn't they lead this evidence or that evidence? Why didn't they test the experts qualifications more carefully? So sure, there are bound to be some cases in which the trial judge motion judge went wrong because the judge didn't have the benefit of, uh, of good advocacy, you know?

Speaker 3: 7:09

Yeah. Um, do you, um, do you recall any instances like that? Or is there, is that something that, that you recall seeing, uh, on, you know, based on your time or not? Not necessarily.

Speaker 4: 7:22

You know, I can't right now point to a case, and I can't give you a percentage, but, you know, just in a, in a global sense, remembering, yeah, sure. Mm-hmm.<affirmative>, now, you know, having said that, look, you can be the most brilliant advocate going, you, you can be the best advocate in the country, and there are a band of cases that no matter how good you are, you're not gonna win. Right? Yeah. And you can be the worst advocate in the country, and there're gonna be a band of cases that you can't lose no matter how bad you are. Where advocacy really matters isn't that gray zone where advocates have a chance to affect the result, that's where advocacy really matters. And there are a significant number of those cases.

Speaker 3: 8:01

Yeah, absolutely. Yeah. Especially I imagine the ones that come up to, uh, to the court of appeal. Yeah. Um, which are obviously, um, uh, not so clear cut or they wouldn't be there.

Speaker 4: 8:12

Exactly. So,

Speaker 3: 8:14

So how do you view the role of written advocacy as different from the role of oral advocacy? Do you find one to be more persuasive than the other?

Speaker 4: 8:23

Well, you know, I've written on this, and I guess I'm a strong believer in that, that that written advocacy by and large, in most cases, not all cases, but in most cases, is more important than oral advocacy. Why? Because in the court of appeal, the, the fact is the first chance to persuade, it's the advocate's chance to get the, to the judge when the judge's mind is most open to persuasion. When we knew nothing about the appeal to be argued, you know, by the time I used to walk into court, if I had, uh, two good factos, I had a leaning about the case. You know, I had a tentative view of the outcome of, of most appeals when I walked into court, sometimes strongly held, sometimes not so strongly held. And occasionally I wasn't sure. But, you know, the written, the Factom makes the first impression and sometimes it's a lasting impression. And that's why I've always been insistent in all of the times that I've taught that lawyers should spend an awful lot of time on their fms. That said, I do not discount the value of oral advocacy. I think it remains important. You know, we're in the baseball season and my, my, uh, metaphor analogy has always been think of a baseball game and the, and the fact that takes you into about the seventh inning and the oral advocacy is the closer cuz what the, or, but, but that's true. Yeah. And, um, you know, I'm, I don't like to see all this talk these days, quite frankly, about curtailing oral advocacy. I, I think that would be a, uh, a major mistake. We already, as you know, in the Court of appeal, we curtail it enough because we impose fairly, you know, tough time limits on advocates. I happen to believe the time limits make you better advocates. But we can have that debate in another time. But, you know, for me, what oral advocacy does is, um, is three things. Okay? Number one, it allows the advocate to kind of put the nuances on the written argument in the sense of facto, we can't do everything. So it allows the nuances to, you know, the sophistication of your argument and so on and so, so forth. Second, in some cases, the panel doesn't really know what the, the real debate is before they hear the oral argument. So, somehow or other, the oral argument can crystallize the debate in a way that sometimes fms, especially if they're not all that well done, can't do. And third, and this is far and away the most important part of oral argument, answering the judge's questions. Absolutely. You know, the absolutely the judges' questions are a window into the judge's mind. And it's your chance, it's your chance as an advocate to answer the judge's questions. It might be something as simple as, you know, uh, justice Trotter, where do I find, or Justice or Ms. Rodriguez, where do I find that in, in the record? Or it might be much more difficult, Ms. Rodriguez, uh, I'm concerned about the implications of your position if you say this, what happens over here? And so on and so forth. So it's critically important.

Speaker 3: 11:31

I was just gonna say that I often, uh, I think that appeals would be a lot more productive if you skipped basically the, the lawyer's explanation of the case, their, their exposition, and simply just opened it up for the panel to ask questions. And if it were just a question and answer period, I, I feel like that would be rather effective. And, and it wouldn't, I don't think it would take away very much from an appeal if you didn't have the lawyer's explanation of their case and you just simply had questions.

Speaker 4: 12:01

Well, there's a lot of merit in your observation and, and, you know, from watching appeals in the court of appeal, it sometimes it almost becomes that mm-hmm.<affirmative>, because, you know, lawyers need to be into their first issue within about a minute of their time on their feet. And often, you know, the court's right there questioning. Yeah. And you know, the questioning. And, you know, most, most panels in the Court of appeal, at least when I was there, you know, I'm three or four years distant now, but when I was there, and most panels were, were hot benches, as they say, we were active participants, active questioners. We had had questions coming in. Some John Morgan used to write out the questions he wanted answered, and he wouldn't leave the courtroom until he hadn't answered every question. I didn't quite do that, but I had a list in my head that I wanted answered and, and my colleagues were the same, and we came in well prepared. And it, in many instances, it became exactly what you've just described. Um, you know, there was some scope to make your argument, you know, standing alone, but, you know, it became very much a Q and a.

Speaker 3: 13:01

Yeah,

Speaker 4: 13:01

Absolutely. And you know, the, the truly great advocates, you know, I think, you know, just the story he's often fond of saying, what distinguishes the good advocate from the great advocate is the ability to answer the court's questions effectively.

Speaker 3: 13:14

So that's right. And that's the court essentially saying, I want to know what you want me to do and how I can get there. Why should I do this? And how do I get there? Right. And often how do I get there is the nagging questions, well, you want me to do this, but yeah. How can I do that if this is the implication? And, uh, you know, so I feel like that's a way of sussing out those two questions that you raised. You know, why should I do this and how can I get there?

Speaker 4: 13:37

I agree. I agree.

Speaker 3: 13:39

So on that point, um, you were saying that, uh, written advocacy advocacy gets you to the seventh inning and, and oral kind of gets you to the end of the game. Um, how often was it in your experience where you, you've had a fairly, uh, strong leaning of a case going into the hearing and you've come out of it after oral argument with a different view? Is that common?

Speaker 4: 14:06

Um, it's, it wasn't common, but it certainly happened often enough for me that I would not want to dispense with oral argument and, and be confident enough that I could decide a case on the basis of the written material because I had my mind changed enough. I mean mm-hmm.<affirmative>, there, there are all sorts of things that can change your mind. All of a sudden the lawyer puts a point that might have been in the lawyer's fact just in a different way. Different language expands on a point. Um, and somehow, you know, you see the merit in the point where you didn't really see it in the facto. Sometimes your colleague will ask a question, question you probably never even thought of, will prompt an answer to tell you to take a a second look at the case. And then of course, you've all, you know, in the back room, you've always got you, you've always got your, uh, colleagues, you know, who, who may take a different position trying to persuade you. And often my colleagues did persuade me that I'd taken a wrong view of a case. So, you know, oral advocacy matters. And I certainly had my mind changed quite a bit, but I can't put a percentage on it. But, you know, maybe 15 or 20% of the appeals I'd have my mind changed by oral argument. That's pretty significant. And it

Speaker 3: 15:22

Is, yeah.

Speaker 4: 15:22

And I'd add this, even when I didn't have my mind changed, invariably, oral argument helped me write my reasons. I used to be a copious note taker, and I relied heavily on submissions counsel made in the courtroom to help me craft my reasons when I wrote. So it, it's an important role. It, it really is an important role.

Speaker 3: 15:43

Absolutely. Um, so to go back to the fact, as we had talked about the written advocacy portion of it, what are some common characteristics that you think characterize great fms

Speaker 4: 15:55

<laugh> great fms. Okay. Well, let me give you, let me see. Let me give you four things, and two are at the general level of the factum as a whole, and two at the more specific level. Okay. All right. The general level, our simplicity and conciseness. So let me try and unpackage that. I think one of the great things that counsel can do when they write FMS is simplify the case for the court. And I'm not talking about dumbing it down, I'm not talking about that, but I'm talking about simplifying and uncomplicated arguments. And especially in a complicated case, because the lure, the lu of a simple solution to a difficult problem is almost irresistible for a judge. A almost irresistible, there's a famous quote from a judge in the United States. Marv Kaman used, my former colleague, late colleague, wonderful colleague, used to quote it, argue all the time, simple arguments are winning arguments, and complicated arguments are like sleeping pills on paper. And, uh, you know, that that's the truth of it. So simplicity. And then I come to one of my big bug bears with factums. Um, and that is conciseness. I would be the first to acknowledge that some, some appeals require longer fms than others. But what we used to see traditionally in the court of appeal were 30 page fms, which as you know, is their limit, uh, without a court order in the most simple of error correcting cases. And the problem with that is that it sends exactly the wrong message to the panel. Cuz what you're telling the panel when you write 13 pages to 30 pages when 15 or 20 were due, is that I haven't really thought through my case, judges haven't really worked it down to its essence. So I've gotta give you more than I otherwise would. That's the message you're telling me. Yeah. And I think the problem is, and I'll just expand on it a bit, but, but the problem I think is twofold for lawyers and I, and especially I think younger lawyers, one is time. You're all under huge time pressures. I know that. And it's like the old line, Hey, I'm sorry I wrote you such a long letter, I didn't have time to write a shorter one.<laugh>, it takes a lot of time to write short, but it's well worth it. And I guess the second thing honestly is fear. Uh, lawyers are afraid of leaving things out. Advocates are afraid of leaving things out of their fact. Yeah. And I always say, you know, you gotta have the courage of selection. You gotta have, have the courage to leave some stuff out and recognize that FMS can't do everything for you. There's a place for oral argument and conciseness is so, so important. And I think every judge would tell you that. And particularly in today's world, judges have a lot to do where they think they have a lot to do. And you remember your days clerking in the court of appeal, we'd have up to 15 appeals a week. They have a lot to read. And I can tell you sitting up late at night preparing for the next day, uh, seeing a 15 page factum was like a godsend. I was thanking the lawyers. And I guess I'd add to this, we really haven't explored this yet. You know, today so much reading is not on paper, it's on screen. Digital reading is so different from reading on paper. Yeah. And, and I think judges lawyers have to adjust to that, you know, and it's, there's a famous author named, I dunno whether you've read a book called Maryanne Wolf. She wrote a wonderful book called The Reading Brain in the Digital Age, which basically says that we tend to skim, we, we tend to skim and skip digitally. Eh, so lawyers gotta get to judges, especially if that stuff's being read on screens.

Speaker 3: 19:38

So I would say there's probably a tension there between, you know, wanting to make a great first impression with your factom, uh, given that that's the first thing that judge is gonna read. And that's when their mind is most open to being selective and concise and maybe leaving things out that are part of your case out of the factom in order to reach that kind of conciseness that you speak of as well. So there's a real art to I think, being concise and persuasive at the same time, which I think is maybe the key to, to written advocacy.

Speaker 4: 20:07

Right. But I think you've, now, you've put your finger exactly on the problem, which is the tension. You've been putting your finger exactly on the problem. Mm-hmm.<affirmative>, how do you balance simplicity and conciseness against, you know, getting your story out, getting your case out, and making that strong person impression. And that's a tough judgment call that, you know, I'm sure you're going through when you write fact for the court of appeal, um, I used to go through many years ago and so on and so forth. Yes. So those are at the general level. Um, to me, the two, the two most, and now I'll get down to the more specific level, but for me, and, and I speak here individually, the two most important part of the factum for me, always were the overview. Mm-hmm.<affirmative> and the facts section far and away. The two most important things for me, when I used to prepare an appeal, if I had two good lawyers in front of me, the first thing I, things I would read, read before the reasons for judgment of the jury charge or whatever it is, I would read each side's overview cuz I wanted to understand what the debate was that I had to resolve. And if I had two good overviews, I was able to read the rest of the factos and the rest of the record much more intelligently, you know, to use a, you know, to use a principle that I'm very fond of talking about context before details, the overview gave me the context. So what judges want to know, and they want to know right away, Natalia, what is your case all about and what are the precise issues you want me to resolve the precise issues. Right. And sometimes lawyers aren't very good about narrowing the issues. They state the issues too generally, you know, uh, the issue in this case is whether the divisional court aired in upholding the x, y, Z bylaw, whereas the real issue is whether they aired in upholding it since it was passed in bad faith or something, you know?

Speaker 3: 22:05

I see. What about the facts? Why would the facts section be more important than say, uh, the legal arguments

Speaker 4: 22:13

<laugh>? Because, and this is only my own view. Well, it's not only my own view, it's the view of a lot of judges and it, and it is on appeal. I think the facts decide most appeals, and I often call it the paradox of appellate advocacy, because of course we've got housing, we've got palpable and overriding error, we've got deference to trial judge findings of fact deference to trial, judges, exercise and discretion and all of that. All of that said, as I said, way back when we started this little dialogue, judges are trying to do the right thing. They're trying to reach a just result. And they are powerfully influenced by the equities of a case and justice. And the equities lie not in the law, but in the facts. Many, many judges have said it. Uh, justice Robbins, who is one of the great judges on the Ontario Court of Appeal, used to talk about the transcendent importance of the facts, that that on on every appeal. And, and I am a complete believer in that. And so, uh, for me, uh, the facts section is so important, and if you've crafted, and we can talk about that, if we've, if you've crafted a very effective, uh, statement of the facts, if you told your story very effectively, then in almost every case, the law should take care of itself. The next issue of the Advocates Journal is going to contain, uh, an article on factom writing by Ian Scott, the lady in Scott, who was at one time the Attorney general of Ontario. And in my end was the best advocate, the best appellate advocate I saw in my years at the bar. And I saw a lot of great appellate advocates, and he was spectacular. And he wrote this article on factom writing, which, uh, Linda Stein's publishing in the next issue of the Journal. And Ian talks about, uh, talks about the importance of the facts. And he basically says the same thing, that almost every appeal is decided on a judicial view of the facts. So for me, the facts section was critical.

Speaker 3: 24:19

So does that mean that you want your side to have the moral high ground in the case in terms of the facts? You want your client to be the sympathetic one?

Speaker 4: 24:28

Couldn't have said it better. That's right. You want to tell a story that shows that your client, as you say, ha, has the moral high ground. You know, especially I always say to young lawyers or lawyers writing fms, you've got huge time pressures and you're not gonna be able probably to spend as much time as you'd like to on an individual factom. If you're really pressed for time, spend far and away the most time on the overview, get that overview down in a page or two, and the facts section, that's what you should spend your time on.

Speaker 3: 24:59

What do you think judges do when a sympathetic client comes along a sympathetic party with the moral high ground, but the law is clearly not on their side? How do you get around that? Do you get around that or do you simply say, you know, this is one, one of those cases where the party with the moral high ground is not gonna win the day?

Speaker 4: 25:20

Well, you say the law is clearly against them, but I think, you know, lawyers need to look carefully at that, whether the law is really clear against them because, you know, as I said before, you know, there's, uh, the standards are general, you know, what does a reasonable person mean? What does the administration of justice mean, et cetera, et cetera. You know, there's, you know, I, there there's a lot of leeway, a lot of play in the joints. And my own view is that most cases, even on appeal are not dictated by precedent. I think actually precedent's highly overrated as a persuasive device. Most cases fall between precedents. So I think lawyers shouldn't too quickly come to the conclusion that the law is against them. Um, they, they've gotta look carefully whether the law really, really is against them. You know, if it is, if you're really convinced the law's against you and you think the law's wrong, then apply to the court to change it. Ask for a five judge panel in the court of appeal and ask the court to change it. But by and large, uh, the law's not always against you. And you can, you can work the facts in a way I think that, you know, both support your side. You know Sure. Some cases are much more likely by the way to be unsympathetic on the facts than they are in the law. Yeah. Much more likely to be un It's the cases that are unsympathetic on the facts that you really gotta worry about with the court of appeal. How do you turn unsympathetic facts into marginally sympathetic facts? Or as you say, facts that give rise to the moral high ground. That's the right, that's the tough task for advocates.

Speaker 3: 26:53

Right. And I guess that is, that is the role of advocacy is to find those, those little nuances, the gray areas, right? The the little scabs that you can pick at to kind of break the whole thing apart to say, you know, uh, sure this has been settled law for 50 years, but, uh, here's why it shouldn't be. Or here's why it doesn't apply in this case, or somehow, um, be able to get around that.

Speaker 4: 27:15

Or here's a finding of fact made by the trial judge that's against me. And I'm not up here standing before you members of the court asking you to overturn that finding of fact. I can't make out palpable and overriding error. But there are three other facts here, which, uh, the, which the trial judge didn't say anything about, which are neutral, which are very supportive of my position, and even this ba seemingly bad finding, I can put in a different context for you. That's the real trick of advocacy to, you know, to grapple with findings of fact that may be against you. And, uh, put them in a different context. Take neutral facts, work on them, and, uh, tell your story. As you say, get to the moral high ground if you can.

Speaker 3: 27:57

Yeah, absolutely. Um, so what advice would you have for an advocate who finds him or herself making submissions to a judge, um, who is clearly not in agreement? And I mean, I say this from experience<laugh>, I say this from personal experience. Um, you know, being in front of a judge who is even, you know, expressing displeasure at the arguments being made, how do you, you feel you're already in a hole. You, you're barely 10 minutes in. What, what advice would you have, uh, for someone in that situation?

Speaker 4: 28:28

Are, are we talking about three judges in the Court of appeal?

Speaker 3: 28:32

Uh, sure we can be, I'm talking<laugh>, I'm talking about talking about trial Judge<laugh>. I'm talking about a case I had last week. No, but maybe different.

Speaker 4: 28:39

But you're not alone. Ain Natalia Sure.

Speaker 3: 28:42

Me and

Speaker 4: 28:42

God, I can't tell you how many times I was in that position, how many times I was in that position. So what can you do? Well, let, let's, let's look at it. First of all, from the court of appeals perspective, you've got a judge who's being very, very difficult on you and, and asking questions and often in an adversarial mode because probably that judge was a litigator in his or her previous life. And, and the litigation tendencies are coming out. So what can you do about it? Well, you can try to put your point in different words, you know, try to take a different tact, maybe try to, try to put it differently, try that. But if the judge keeps hammering you and hammering you and hammering you, I think ultimately you've gotta say, you know, justice Laskin, I'm sorry I can't help you anymore cuz the last thing you want to do, especially if you're a, you know, uh, you're a frequent appellate advocate, you don't want to get that judge so angry with you that the judge is gonna, you know, remember you for being persistent and overly persistent when you didn't want to be. So you, you know, you gotta do the best for your client, but you've also gotta, uh, think about your long-term reputation in the court of appeal. Having said that, let me make just two other points. You're sitting in a panel of three. Don't ever assume that silence of the other two panel members necessarily means agreement with the judge who's giving you a hard time. Because those two other panel members simply may not want to embarrass or, you know, contradict their colleague in open court. So if you've got two other silent members, don't assume that they're also against you. They may not be against you. One or both of them may be with you. And I just add this sometimes, and I'll tell you a personal story about it. Sometimes when a judge goes into his or her back room and really thinks about your argument, the judge may realize that all of this questioning in open court, the judge was on the wrong track. I remember, uh, I remember sitting on a case, I don't know, my last two or three years on the Court of appeal and it was an employment case and there was a, there was a sort of novel point involved and the lawyer for the employee was standing up and arguing and, and I gave him a pretty tough time, I think civilly, I was polite, but I was asking a lot of questions of his position and I think made it perfectly clear that I was entirely against him. And, and I'm sure he felt at the end of oral argument I was dead against him. Well, I went back in, uh, in my room, I undertook to write the reasons and I started looking at his argument. I'd taken notes and I started looking at his factum. And I happened to have a wonderful law clerk that year who was, who had articled at a firm and unemployment law. And between the two of us, mainly her, she persuaded me that I'd taken a wrong view and I ended up writing a judgment in favor of the employee. And I'm sure this lawyer was completely shocked when he got my judgment Wow. By recent. So I'd taken a different view. So, you know, those things happen not often, but they do happen<laugh>.

Speaker 3: 32:01

Wow. Okay. So, uh, so don't give up, don't think that that's necessarily the, uh, the last word on it because the judge may go back and take another look and um, and potentially decide in your favor.

Speaker 4: 32:14

Yeah. When you're at the trial level, of course you're in a different situation cuz you've only got one judge. And I mean, I guess the best thing, you know, sometimes same thing, you've just gotta, you know, at some stage, say the judge, you can't help anymore. The best thing you can do as a trial lawyer of course is protect the record. Yes, absolutely. Protect the record. Yes. And if you've got objections, then make sure they're on the record and you've given a reason and you for whatever, et cetera, et cetera, that's the best thing you can do. Preserve your record for the court of

Speaker 3: 32:42

Appeal. That's right. That's right. And I'm sure you've seen, uh, more than one of those cases in your time.

Speaker 4: 32:48

Yeah. And, and the flip side where there's no objection. Mm-hmm. I mean, and that often happens and you remember those cases. Yeah. And the Court of Appeal would say, well, you know, Mr. So-and-so, there is no objection at trial. Yeah.

Speaker 3: 33:02

Why do

Speaker 4: 33:02

You, why should I do anything about it now? Yeah. So I mean, you know, that that's an important thing to remember for lawyers. They've gotta protect their position as best they can at trial.

Speaker 3: 33:12

Do you think there's anything that maybe advocates who appear before an appellate court should know that maybe they don't know or is not well understood?

Speaker 4: 33:21

So I think the first thing, if, if a lawyer's appearing in the Court of appeal for the first time or the first two times, I think one thing the lawyer should, should, should do for sure, is to assume that the panel is well prepared soon the panel is well prepared. Way back when, when I was an advocate and arguing appeals in the Court of appeal, I'd stand up and, and I realize now totally ineffectively, I would stand up and tell the court, uh, the facts of the case. And invariably one member of the panel would say, Mr. Laskin, we know the record. The reality was back then that most of the bar didn't trust that. They really didn't trust that the panel was prepared. And so we went on and, you know, spent 15 minutes of our time. Although there was no time, there were no time limits back then setting out the facts. That is utterly ineffective way to begin an appeal. And now with time limits in the Court of appeal, the trade off for time limits is that the panel has to be prepared. Mm-hmm.<affirmative>, we can't tell you, Ms. Rodriguez, you've only got 45 minutes to argue your appeal and come in unprepared. That's not fair to you. It's not fair to your client. So by and large, I'd say almost without exception, uh, when I sat on a panel, all three members of the panel were superbly prepared to hear the appeal and sometimes knew the record better than, better than counsel appearing before them. So one thing lawyers have to know is that the panel is prepared. Don't waste your time. Get right to your argument. The second thing is, many of the court's questions are about the record, not so much about, you know, this legal principle or that precedent or that great decision of the Supreme Court of Canada. It's more about the record cuz as well as prepared as we are court judges are, they can never know the record as well as lawyers. And, and I can tell you that one of the easiest ways to spot whether a lawyer, uh, knows his or her case is to ask a question about the record. And, uh, if the lawyer doesn't know where to find a particular fact in the record, that's a really tell that the lawyer isn't as prepared as the lawyer should be. And you know, unfortunately, or fortunately, judges are gossips and, uh, lawyers reputation for not being prepared can spread like wildfire through the Court of appeal. There are some very, and I'm not obviously not gonna name them, but there are some well-known names in our profession, uh, names of lawyers with high profiles in out there in the profession who don't have the same quite high reputation within the corridors of the Court of appeal. Not because they're not great advocates. They are, if they're prepared, it's more often that they're not prepared cuz they're too busy. So, you know, it, it is critically important and it's an important message for young lawyers too. Young lawyers are gonna come to the Court of Appeal, and by and large, you know, most of the appeals they have are probably very tough appeals. They may have a bad losing streak at the beginning of their careers. Mm-hmm. And I would say to young lawyers, don't think the Court of Appeal doesn't think highly of you. There are some young lawyers in my time, a lot of young lawyers in my time who I thought very highly of, and so did my colleagues. Why? Because they were prepared, because they came to the court, they didn't waste our time, they didn't overstate their case. They, uh, were civil in court, uh, respectful. Justice Robbins used to say maintain respectfully equality with the court. And they used to do that. They were ready for the court's questions and so on. And their reputations too spread like wildfire through the Court of Appeal and they were welcome back, those young lawyers. So yeah, you know, it's an important message for young lawyers

Speaker 3: 37:25

On that point. I think maybe it's also all the more reason why sometimes the junior on a file, you know, sometimes the senior lawyer's too busy to be prepared. Right. They come in, they're not ready, but the junior knows the file inside and out and, you know, they've spent all the time researching and writing the fact, I mean, delving into the, into the facts. But many times they don't have the opportunity to stand up and argue any part of the appeal. So maybe what you say kind of relates to that in that, you know, we need to give also junior counsel an opportunity to get on their feet and especially if they've been intimately involved in the

Speaker 4: 37:59

Case. I think that's right. I mean, there are two other institutional things I just throw out. There are some members of the bar who think that the Court of appeal fixes panels. You know, you walk into court and you've got Justice X, Y, and Z because, uh, you know, the Associate Chief Justice decided that X, Y, and Z we're gonna sit on that case, you know, from being on the inside, that that simply doesn't happen. Mm-hmm.<affirmative> panels in the Court of appeal are random. You know, there might be one, one exception out of a thousand. I mean, the reference on Stephen Truscott, the Chief Justice, wanted to have our top criminal lawyers on that reference. Fair enough. Yeah. But that kind of case aside, panels are random and judges have nothing to do with fixing the panels. They have nothing to do with when they sit other than, you know, uh, my daughter's got her spring break and I want to be away for spring break or, you know, whatever it is. So panels are random. They're not fixed. And the second thing is, and I don't unless this has changed, but when, when I was on the court, we had a uniform practice of not discussing an appeal in advance. So when we walked into court, there were three independent minds coming to coming to hear your appeal. We didn't discuss the case in advance. We didn't have a pre-hearing conference. Other courts do it differently. The Quebec Court of Appeal does it differently. I gather the Supreme Court of Canada has changed its practice than the last year. You may know that better than I do, but they now pre-conference on every appeal. I particularly liked our practice. Mm-hmm.<affirmative>, I didn't like to have my mind influenced by my colleagues before I heard the oral argument. So that, that happens. And then, uh, you know, for young lawyers, when you go, when we went back in our back rooms, then the, the junior judge on the panel would a would get asked his or her opinion first. And when I say junior judge, I mean the most recent appointee of the three on the panel, and then the next, and then the, and then the president of the panel would give his or her opinion last. So that's how we worked. And which meant that the junior person on the panel actually had a lot of, uh, a lot of, uh, influence, you know, is the social psychologist would say it, it's the anchoring effect. Yeah. You know, they, they can anchor the debate, um, by their views. Um, so,

Speaker 3: 40:21

And having not heard the president's, uh, views of the panel, then they're not tainted by that in any way. They don't feel like they have to be deferential to anyone, to anyone more senior. That's a, yeah. I, I always like that practice. And then in terms of who writes the decision, that's just a, a negotiation among, among the three.

Speaker 4: 40:41

Yeah. I mean, you know, when I first joined the court, um, there were some judges. It, it's the, it's the president of the panel's prerogative in practice mm-hmm.<affirmative>. And, and there were some presidents I sat with who took that prerogative seriously and would say, okay, justice Rodriguez, I want you to write the decision in this case. Or, you know, whatever. In, in sort of midway through my court of appeal, it became much more relaxed. It was what's, what's, uh, do you have any interest in writing this case? What's your workload like if you got a heavy reserves or not? And as you say, it almost became a matter of negotiation. And usually it was divided up towards the end of the week. We'd see where people stood and we'd divide. If we had, you know, say three reserves, we'd divide them up. One, one and one that said, at the end of the day, if the President really wanted to write on a case, then the president would say, I wanna write, you know, I got to be senior enough on the court. You know, after so many years there were, I, I sat as president the panel a lot and there were some cases I really wanted to write on, and I would say so. But other cases I would say, has anybody got any interest in writing? You

Speaker 3: 41:53

Know? That's right. Yeah. Makes sense.

Speaker 4: 41:55

That sort of thing.

Speaker 3: 41:56

Thank you so much for, for joining us today on our podcast Friends Who Argue, uh, and, uh, we really appreciate your time.

Speaker 4: 42:03

No problem. Cheers. Thanks.

Speaker 1: 42:08

Friends who argue is brought to you by M N P, you wanna put your best case forward in the courtroom, MNP is there to help with fact finding analysis, insightful reporting, incredible testimony. M N P provides a full suite of forensic and litigation support services all in one place. Their experts also provide early detection and prevention of financial irregularities so you can prepare your strongest defense MP's objective team of experts in law enforcement and investigations will ensure you aren't surprised during the litigation process. Get through your next crisis with the right experts in your corner. Visit mnp.ca to learn more.

Speaker 5: 42:51

Thank you to Justice John Ilak and Natalia Rodriguez for the wealth of knowledge shared in this conversation. Thank you to my co-editor, Ian Brennaman, our production leads, Kristin Derhammer and Natalia Rodriguez, and to the Advocate Society team for their support. This is Wesh Hale, co-editor of Friends Who Argue Signing Off.

Speaker 1: 43:12

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Speaker 2: 43:18

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Speaker 1: 43:24

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Speaker 2: 43:44

Until next time, we are friends who argue.