Suggestions for Effective Oral Advocacy
David Stratas
Much has been written on oral advocacy. There are
probably as many suggestions as there are lawyers. What follows are a
number of suggestions, based on my experience. These are in no particular
order.
Be selective
Good oral advocacy concentrates only on
the facts and law that assist the judge in determining the key issues in the
case. The key issues are those on which the case will turn.
Normally there are only a handful of
issues - perhaps only one or two - on which the case will turn. Identify
those issues, then determine what facts and law you will need to advance your
case or hurt the other side's case. Have the courage to set aside the
less important issues.
Do not waste time on facts and law that
do not really matter.
A common mistake is to select too many
legal issues. Select only the best. It is often the case
that an appeal will turn on only one or two key issues, themes or ideas.
Be practical and case-specific
General, academic statements that are
divorced from the realities of your case often do not persuade.
Judges have to decide the case one way
or the other. They are mindful of the fact they have a practical job to
do. They are not often interested in making new law or writing
high-sounding statements. They want you to be a partner in a very
practical process. Therefore, you should always try to offer practical
and case-specific submissions.
Here is a general, academic opening to
submissions concerning s. 15 of the Charter:
"Section 15 is one of the
most important sections of the Charter. Its central purpose is to protect
human dignity. As was once said in Andrew v. Law Society of
Here is a more
practical and case-specific submission:
"The parties agree that you
should follow the method in the Law case in order to determine whether
this Act offends s. 15. The third step in that analysis is whether there is
discrimination that affects human dignity. The parties differ in this
case on that step. The Government of Ontario submits that there is not
any such discrimination in this case and so John Brown's claim must fail. I
have four submissions to make in support of this point. First..."
The latter
persuades. The former does not.
Questions / comments from the Bench are a
golden opportunity
Judges' questions and comments are
critical. They often tell you whether the judge is for or against your
position. They can signal whether the judge understands the issues.
Sometimes a question or comment reveals that you are going too slowly or
quickly. Often the judge will use comments or questions to tell you what
that judge believes are the real "sticking points" in the case.
Questions and comments can also tell you how the judge reacted to the factums -
a positive reaction might suggest that you should not advance the arguments in
a different way from the factum while a negative reaction might prompt you to
try to run your arguments differently.
Questions and comments are not always
hostile. Sometimes the judge is just trying to clarify what you mean in a
submission. Sometimes judges will offer "cheerleading" or
positive comments in order to try to convince fellow judges.
Your approach is the same for every type
of question. Answer it directly, saying no more than what is necessary in
order to answer the question. Never evade the question.
Answers that rely heavily on the
evidence are often best. In a s. 10 Charter case, the judge might ask
whether there was a "detention". Most law students will
start rhyming off cases about "detention". It may be far better
to say that there was no "detention", briefly mention the
governing principle and then delve deeply into the evidence that shows
that there was no detention.
The facts matter
In my experience, most judges seem to be
result-oriented. Most ideally would like to reach fair and just results
in a legally sound way. When making submissions, you must recognize that
many judges have that agenda and you should try to accommodate it. Good
oral advocacy will play to the "moral high ground" or the
"equities" of the case. Invariably, this means that you have to
be mindful of the facts and advance them in an honest way that accomplishes
that objective.
Playing to the "moral high
ground" or the "equities" of the case does not mean that you
must always portray your client as a saint. Sometimes the facts of the
case limit you: your objective might be the less ambitious but equally
important objective of keeping your client out of the "moral
gutter". Another objective might be to place the other side in the
"moral gutter". Pursuing these objectives helps to influence
the judge who might be result-oriented. Many are.
Usually the facts are the facts and
whatever "moral high ground" or "equities" you can develop
are cast in stone. However, you can increase the sympathy for your client
and your client's "moral" position by making appropriate
concessions. If you need to get an extension of time to file an affidavit
in Federal Court and you asked for 20 days in your notice of motion but don't
think you'll get it, ask for 10 and present it as if you are being incredibly
reasonable. On the other hand, if you are resisting the extension, think
of offering just 2 days and say why that makes sense.
Another way of assisting your case in
terms of "equities" (and also in terms of your credibility - see
below) is to be reasonable or at least appear to be reasonable. If the
other side has stated the law correctly on a certain point or if there is
common factual ground, say so. Concede points. Take some issues off
of the judge's intellectual table. The busy judge will like you alot for
doing that!
In pursuing the objective of maximizing
your client's moral high ground or placing the other side in the moral gutter,
be careful not to over-argue or make sweeping, emotional, general
statements. They do not persuade. Instead, try using carefully
selected, clinical, specific facts. And if you have them, lots of them.
Compare this:
"Sam Jones is a lying,
dishonest thief. He sold Mrs. McGrady an electric blanket but never
delivered it."
with this:
"Sam Jones wrote a letter to
Mrs. McGrady, an elderly widow. He offered to sell her an electric
blanket for $55. She wrote back and asked when it would be
delivered. He said she would get it within 5 days of payment. She
quickly paid the money. She never got the blanket. Sam Jones
deposited the money into his personal bank account within two hours of
receiving it.
The latter
really persuades. The former does not.
Give the judge some credit
Judges know the law. While this
might be your first motion to amend pleadings, it may be the judge's
85th. That judge will not need Amendment of Pleadings 101. That
judge does not need to be taken to 5 cases. Once you've lost the judge
through sheer annoyance or utter boredom, you've probably lost him or her for
good. In oral advocacy, err on the side of giving the judge some credit
for knowing the law. If the judge is not following you on some legal
point, the judge will usually let you know - loudly and clearly.
This means that you might just mention
the authorities in support of your proposition without turning them up.
Or cutting short plenty of legal argument by referring to where the argument is
found in your factum. Usually I only turn up an authority when a very
close parsing of its language or reasoning is a necessary part of my argument.
As for the facts, you usually have to be
more detailed. On the whole, you cannot give the judge too much credit
for knowing the facts. The judge is less familiar with the facts in a
case. You've had the case for months; the judge has had it for perhaps a
few hours. Your job when going through the facts is like that of a
knowledgeable tour guide in a museum. A good tour guide in a museum
points out the real items of interest, not every last exhibit. Good
guides are also interesting, brief and crystal clear, pointing out the
colourful things.
However, when going through the facts in
oral argument, give the judge some credit for being a judge. The judge
has read and studied your factum. So it is never necessary to read out
the facts in your factum. Also, judges are quite capable of drawing
factual conclusions. You do not have to state some factual conclusions
for them. In the second set of the Sam Jones submissions, above, it was
not necessary to say that Sam Jones is a lying, dishonest thief. The
judge will draw that conclusion from the devastating set of facts.
When you tell judges factual
conclusions, often they query them and wonder whether you are
exaggerating. However, when judges draw their own conclusions from your
well-structured, carefully selected clinical facts, they hang onto them because
they are their own. A Crown attorney, David Butt, calls this "giving
the judge ownership of an idea." It is an excellent tactic. Do
things to encourage the judge to take ownership of your client's case.
Be brief, clear and get to the point
Lucky you. You are in a better
position than most judges. You can walk out of any live theater when the
play is insufferably long, has a slow moving plot and is hard to
understand. Unfortunately, because many lawyers are bad advocates, on
many days judges watch this type of bad theater and are forced to stay.
While physically judges may be forced to
stay, my experience is that they can intellectually "walk out" very
quickly. Once that happens, you might as well sit down.
You have to be brief and get to the
point fast. Slow, rambling exposition does not persuade. Tight,
fast-moving reasoning persuades.
In writing, 60 pages can read like it is
only 10. And 10 can read like 60. It all depends on how it is
presented. The same is true for oral advocacy.
There are two techniques for excellent
presentation: (a) be simple and clear; (b) have a structure or architecture to
your argument and (c) make it very explicit by using "point first
advocacy".
(a) Be simple and clear
Good oral advocacy should be like a chat
with your neighbour over a fence. You would not say to your neighbour
that "it is submitted that there is a general absence of clouds in the
firmament today". You would not follow it with a comment that your
"contention is that this is supported by the fact that there is a high
level of brightness with respect to the environment today." Just say
"it is sunny". Get to the point. Say it and move on.
A common mistake is to use too many
"throat clearing phrases" in argument. Avoid words like
"it is noted that", "it is important that" or "it
should be recognized that". If it should be noted, is important or
should be recognized then just say it!
(b) Structure and architecture persuades
Carefully structure your argument.
Structure is on two levels: the macro-level and the micro-level.
The macro-level is concerned with the
subject-matters or general submissions that you intend to present. After
selecting the most important subject-matters or submissions, in what order
should they be presented? In general, the strongest subject-matter or
submission should go first.
In certain cases, a number of
submissions can build upon each other. Certain submissions can only be
developed after other submissions are presented first. Identify those and
advance them later in your argument.
The micro-level is concerned with the structure
or architecture within the subject-matters or submissions that you have
identified in the macro-level. Build each subject-matter or submission in
the macro-level brick-by-brick, logically and persuasively, step-by-step.
(c) Make the structure explicit - use "point
first" advocacy
When judges first enter the courtroom,
they will know your basic argument from the factum. But they will not
know for sure what you will say in oral argument. And they may be
undecided about the case. It is as if they were accompanying you into a
barely known but dimly lit home with which you are intimately familiar.
You want to take them by the hand into the home, guide them through it from
room to room and always make them feel secure as you tour the home. That
is exactly how you should approach oral argument.
I happen to think that the firmer you
grab them by the hand and the clearer you guide, the better they will
follow. For this reason, I think that appellants, who speak first in
appeals, have an enormous advantage in that they can give the tour of the home,
leading them from room to room, throwing light on the dimly lit environment,
and the respondents are left powerless and outside! If you do it right,
the respondents have to give the same tour, but the minds of the
"tourists" are already influenced - a terrible disadvantage!
What's worse, appellants have the last word!
At the macro-level, you have three major
submissions why you should win. Say so at the outset. Then flag
each submission by saying "My first of three submissions is that..."
and so on.
At the micro-level, after introducing
the submission, say why the submission is correct by listing reasons. Say
that the submission is correct for "three reasons" and then go through
them, letting the judge know when you are on the first reason, the second
reason and so on.
Another way of doing micro-level
structuring is to offer a methodology. For example: "My first
submission is X. I would like to canvass the key facts relevant to this
submission, the applicable law and then make some concluding comments.
The relevant facts for this submission are as follows...". This
often words. Even if the judge is not sympathetic to your message,
at least the judge knows where you are and there is an end in sight!
Your voice is part of advocacy
Too many counsel adopt a tone of voice
and rhythm that does not change from the beginning of their presentation to the
end. This is not interesting. It also does not signal to the judge
what is really important.
You can raise your voice. You can
lower it. You can speak quickly. You can speak slowly. You
can pause. You can pause for a long time. You can deliver points
quickly like a machine gun. You can carefully pack them and then lob them
like snowballs. What you do depends on what you think is effective in
terms of persuasion. These techniques are the oral equivalent of bold
print, large print, BLOCK CAPITALS, underlining and italics. Also
consider making use of charts, summaries, pictures and other visual aids to
hand up to the judges as you make your arguments. Pictures are often
worth a thousand words.
Be credible
Judges have three "windows"
through which to view a case: (1) the record of evidence before them; (2) the
factums; and (3) counsels' oral submissions. (1) speaks for itself.
The other two come through the lawyer's pen or the lawyer's mouth. If the
products of the pen or mouth are to persuade, the lawyer manipulating them must
be believed. If the lawyer is not credible, whether through use of
overstatement, undue emotion, misleading presentation, suppression of key
information or falsehood (whether inadvertent or deliberate), two important
windows on the case are shut.
Part of credibility is knowing the case
against you, acknowledging it and dealing with it. I happen to think that
the best advocacy on appeals is in the first minute of your argument to
identify the issue on which the case will really turn - even if that issue may
not go in your favour - and then deal with it in the most positive, confident
and detailed way possible. In some appeals on which I am sole counsel for
my client and have free rein to do as I like, I like to do this in the very
first sentence out of my mouth! Strangely enough, that approach just
by itself is persuasive.
Finally, putting aside your client's
interest, which is your highest interest, your reputation is your most
important asset. For better or for worse, judges like to gossip about
lawyers as much as lawyers like to gossip about judges. And bad news
travels faster than good. This is another reason to encourage you to
remain credible in every submission you make.
Be prepared
An important part of credibility is to
have a superb command of the case. Know the entire evidentiary record. Be
the most knowledgeable person in the room on the law. By the end of the
day in court, you want to have the reputation as being the person who knows
everything, factually or legally about the case.
You have to be ready for surprises from
your adversary. Your adversary is perfectly free to make use of anything
in the evidentiary record (usually voluminous) and any case ever decided.
Complaining that your adversary is presenting an argument in his/her factum
almost always does not work.
There is no easy way to be
prepared. It just takes hard, hard, really hard work.
Develop a thick skin
You cannot win every case just because
you've done all of the above. As Justice Rothstein said in his speech,
the facts and the law end up having something to do with it! In fact, I
think the best counsel lose more cases than they win because they get some of
the toughest cases. The sad fact - cruel justice indeed - is that as you
get better and more experienced and as you get known for being good, you are
perhaps much more likely to lose!
When you lose a case you think was
winnable, ask yourself whether you did everything you could, within reason, to
maximize your client's chances of success. If so, then chalk it up to the
fact that the evidence is the evidence and the law is the law and, darn it all,
sometimes judges just make mistakes.
Finally, remember (unless you are in the
Supreme Court of Canada) that today's disappointing loss is tomorrow's
fascinating appeal.
Above all, have fun!