Some tips on oral advocacy from Justice Rothstein

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Justice Rothstein of the Federal Court of Appeal recently gave a speech on oral advocacy.  His speech appears below.  We are very grateful to him for forwarding the speech to us for use in our class.  The reference to "Catzman" at the beginning of the speech concerns an article recently written by Justice Catzman in the Advocates' Society Journal in which he tells people how to write factums that lose!  Justice Rothstein begins with the same approach.

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For those of you who are classical music buffs, Iíll start this presentation with variations on a theme of Catzman and then move to the main work.  Seven variations on Catzmanís rules for you to remember:

 1.   Donít give the judges your best argument first.  Bury the argument so that it is obscure.  Appeal Court judges really enjoy the challenge of trying to see if they can find the argument.  Itís easier than trying to figure out whether itís right.

 2.   Cram everything into the same thought.  In that way, you wonít forget anything. Any half-baked judge will be able to sort out what you really intend.

 3.   Donít worry about being unfamiliar with the material.  The judges like long breaks.  They can take a nap while you try to find what you are looking for.

 4.   Donít answer hard questions from a judge.  Just plough along with your argument.  The judge will probably forget the question anyway.

 5.   If you think you are losing by the questions the judges are asking, let them know that you will be appealing to the Supreme Court.  That should bring them to their senses.

 6.   Assume that the judges have committed to memory all the cases you will be referring to.  When you quote from them, donít bother to tell the judge what tab the case is under or what page or paragraph you are quoting from.  And if you do take the time to refer to the tab, page and paragraph number, donít quote from the case verbatim.  Just paraphrase.  You can say what the judgment says better than the judgment itself.

 7.   Donít worry if the judge stops writing.  It means that he is mesmerized by the force of your argument.

 While I canít answer exactly how to present an oral argument in each and every case, I can give you some pointers that generally should stand you in good stead.

 First, some preliminary observations:  it is safe to assume that Appeal Court judges will have read your factum before the appeal.  But the judges wonít have spent the time reading it that you did writing it.  Unless the case is unusually simple, the judges will only have an impression of each sideís case.  The judges will come into the courtroom, having had a brief discussion.  They will likely have a predisposition toward one side or the other, but only a predisposition.  However, the judges want to be sure, if at all possible, that when they leave the courtroom, they know exactly which side will win and the reasons why.  So oral argument is very important.

 My own experience is this.  I hear better than I read.  Many of you speak better than you write.  There will be subtleties in your factum that donít come across on a reading but that should, if they are significant, come out in oral argument or in answers to questions.  Last week I was in Calgary and Edmonton.  Of the three cases we heard in Calgary, two are being decided opposite to what our predisposition as a panel was based on the factums.  And the other case almost got decided that way too.

 So, with all the emphasis on the importance of a factum, donít underestimate the importance of oral argument.

 Next:  you will never be criticized by the judges because your argument is too short or too concise.  Preparing an oral argument is hard work.  And preparing a concise oral argument is even harder.  Thirty years ago, I had been an advisor on new consumer protection legislation that was enacted in the Province of Manitoba and I was asked to give a presentation on a CBC morning program about the new law.  I was told I had 2 minutes and 12 seconds.  I was up on the subject and it took me less than an hour to write my first draft.  It then took me 12 hours to get it down to 2 minutes and 12 seconds.  Being concise doesnít mean being cursory.  You canít be concise unless you first prepare in detail and then eliminate what is truly unnecessary.  A benefit you get from being concise is that you will not say things that are unnecessary and that may prompt questions from the Bench that take you on a tangent and confuse the issues.

  Now, I will turn to some specific points and I will unrepentantly borrow from Marv Catzman and John Laskin, both of whom have written extensively on factum writing.  Some of their points are equally applicable to oral argument.
 

 1.   Overview Statement

 Whether you are appellant or respondent, always start your argument with an overview statement.  It may be a paraphrase of the overview statement from your factum.  Donít assume the judges have memorized the factum.  Or, if you are respondent, it may be an outline of the points that you think you have to respond to.  The overview statement will provide  context.  It is always easier for the judges to understand details if they have a grasp of the context.

 What should you say in an overview?  The judges are looking for a road map.  You have given them a 30-page factum.  Our rules say 30 pages is the maximum but I know some of you think it is the minimum.  In any event, the judges want to know in a few words where you are going.  So, first you have to say, in the most simplified language you can muster, what the case is about.  Donít worry about every detail.  Donít go on tangents.  Just hit the high spots.  You wonít be misleading the Court.
 

 Here is an example taken from a case we heard a week ago in Calgary:
 

  ďThis case is about a unionís duty of fair representation to its members.  My client lost  his job.  It took two years for the union to negotiate his reinstatement.  The union fell asleep at the switch and didnít do anything for long periods of time.  The Canada Industrial Relations Board in its decision didnít address the unionís delay. It was patently unreasonable for the Board to have come to the conclusion that the union complied with its duty of fair representation.  The Board could only have come to that conclusion by ignoring the evidence before it.Ē


So, now the judges know the case is about the duty of fair representation by a union.  They know they will be looking at the evidence and the decision of the CIRB.  They know that the decision will have to be patently unreasonable for them to intervene.  In a more complex case, you may have to briefly set out the facts and then put forward the 3 or 4 or 6 propositions that you must demonstrate to win.  And you will briefly say what each is.  So now the judges know what you think you have to show and they will be able to follow you step-by-step, as you move from your first proposition to the second and so on.  So this gives the context and will better equip the judges to absorb the details that will follow.
 

2.  Use Point First Style

 Marv Catzman and John Laskin say that point first writing is the most important suggestion for good factum writing.  It is the most important suggestion for good oral argument as well.  You must state your proposition first and then develop it.  You may think that the judge needs to understand how the argument will develop or that he or she will not appreciate the point until familiar with the relevant facts; or that an anticipated conclusion will make the ultimate conclusion repetitive.  Forget those concerns.  State the conclusion up-front.

 I donít think many cases go by without me asking a lawyer, ďwhy are you telling us this?Ē.  It may be obvious to the lawyer but not necessarily to the judges.  So, always preface the detail with the proposition that the detail is expected to demonstrate.

 Point first style applies to the facts and law.  Donít quote from a statute or a case without first stating what proposition it is you are putting forward and citing the law to support it.  Donít refer to factual information without first saying what the information is intended to demonstrate.

 An ancillary benefit of a point first argument is that it will force you to restrict each legal and factual reference to one main idea or topic. You know so much about the case and its various subtleties that it is easy to end up making two or three points in one reference.  But that will only confuse the judges.  Make only one point at a time.  Develop it and finish it before moving on.  Even if the same reference in the material may be relevant to two points, donít try to refer to both points at the same time.  Focus on the first point and cite the reference to make that point.  You will have to come back to the same reference in the material when you make the second point.  But that is far preferable then muddling the two points together.
 

3.   Refer to the Judgment Appealed From

 The judges want to know where the error is.  So, when you argue, refer to the judgment.  Too often lawyers argue in the abstract.  Their legal or factual points may be strong but they have to relate them to what the judgment under appeal said.  So  cite the paragraph or sentence in the judgment that is erroneous and focus on it.  Start by saying what your proposition is; that the trial judge erred by misinterpreting section ___ of the Act.  The proper interpretation is X.  The Trial Judge said it was Y.  Here is what he or she said.  Then quote it.  Then explain why X is correct and Y is incorrect.

 If you are the respondent, use the judgment to your advantage.  I read a paper recently that indicated in the United States Federal Court system 80 percent of trial judgments are upheld on appeal.  I donít know what our statistics are here but certainly the vast majority of judgments are upheld on appeal.  So, donít go it alone.  Rely on the judgment.  Of course, you must know every square inch of the judgment so that you can point out why, when the appellant says the trial judge ignored evidence, the evidence wasnít ignored. Or, if a judge asks a question, you can refer to the judgment to answer the question.  Obviously, you cannot leave it there.  You have to present your own analysis.  But using the judgment gives you an enormous initial advantage.

 I will tell you one short anecdote here.  Some years ago, I had won a motion before Mr. Justice Strayer when he was a member of the Competition Tribunal.  I had convinced him that intervenors before the Competition Tribunal should not be allowed to call evidence, but only to argue.  The Director of Competition and a number of interveners appealed to the Federal Court of Appeal.  Mr. Justice Iacobucci was the Chief Justice at the time.  So in we went.  I knew I was in trouble when the Court hardly asked any questions of the appellant.  When the respondentís turn arrived, I got up to argue and before long, Mr. Justice Iacobucci was all over me about fairness and denying the intervenors their day in court.  At one point he said to me, ďMr. Rothstein, your argument is so restrictive it frightens meĒ.  I was a little put off at this point so I responded, ďMy Lord, I am quoting what Judge Strayer said.  It is his argumentĒ.  Iacobucci shot back without a pause, ďMr. Rothstein, Judge Strayer isnít here.  You are.  Your argument frightens me.Ē  Needless to say, I lost.  So, relying on the judgment below has its limitations.  But, my experience should not deter you from doing so.
 

4.   How much background do you give to the Court of Appeal?

 It depends on a number of things; the nature of the case; who the judges are.  Some things are within your control and others are not.  But some things you can assume.  You can assume, for example, that by now, at least in the Federal Court, the judges know about the pragmatic and functional approach to determining standard of review.  They know about Pushpanathan and Southam and Baker.  So, you donít have to go back to basics.  What you have to do is to demonstrate how, in your appeal, each of the considerations that the judges already know about will apply.

 On the other hand, if it is a technical appeal under the Income Tax Act, or the Patent Act, or perhaps the Canada Labour Code or other technical law, it will be necessary to provide some background.

 For example, tax appeals often involve the interpretation of a particular provision of the Income Tax Act.  The scheme is not necessarily intuitive.  In fact, it may be counter intuitive.  Or there may simply be an arbitrary rule.  So you will want to develop why your interpretation of the Act is the correct one.  It will be set out in the factum.  But if it is technical, the judges will not have grasped the detail or the nuances of the provisions from the factum.  So you will want to use oral argument to help them along.  It is always helpful to the Court to have a background as to the statutory scheme, the reasons why the statutory provision was brought into force and how it works.  The important thing is to get the explanation before the judges so that when they walk out of court, they will have sufficient understanding of the rationale and background of the statutory scheme that they will feel comfortable with the statutory interpretation that you have advanced, why your interpretation is consistent with the scheme and rationale of the Act and why your opponentís interpretation is not.
 

5.   Questions

 Some lawyers donít like the judges to ask questions because it distracts them from their argument.  But you should welcome questions.  At least you havenít put the judges to sleep.  Usually the questions telegraph to you what is bothering the judge.  If you are lucky enough to have a judge that will tell you what is bothering him or her, at least you can deal with it.  I used to hate arguing before a panel that never said a word.  I didnít know whether they were understanding what I was saying at all.  Sometimes I felt like asking if they knew what the appeal was about or if they gave a damn anyway.  So, questions are the opportunity you have to engage the judge.  Of course, you better have good answers that are responsive.  And if you know your case well, and you have prepared properly, you will.

 Sometimes judgesí questions are argumentative or even mischievous.  Perhaps one judge is trying to make a point with a colleague.  But you canít tell the judges to behave or to sort out their own problems amongst themselves.  You have to treat each question as if it is an honest attempt to obtain information.

 It is very important that you understand the judgeís question.  My questions are always very clear and lucid.  However, some of my colleagues ask the most convoluted questions.  There is nothing wrong, if you have the slightest doubt, to either repeat the question back to the judge as you understand it or ask the judge to repeat it.

 Judges usually ask questions to test the cogency of your argument.  Sometimes the questions are aimed at identifying the wider implications of your argument.

 Sometimes judges ask hypothetical questions.  You canít say that the hypothetical doesnít apply here.  You have to answer the hypothetical question.  That is very often the best way of testing the cogency and implications of your argument.  Sometimes the hypothetical question can be off base.  But most of the time they reflect a logical extension of your argument.  Judges are always worried about making broad rulings with wide and unthought-out implications.  So you must try your best to answer the questions to allay the judgeís concerns.  If you donít, you can hope the other two members will ignore the question as an irrelevant tangent that you have been taken on.  But your odds of winning have just gone down appreciably.
 

6.   Preparation

 There is no such thing as too much preparation.  No matter how much experience you have, each case is different.  The appeal books are often voluminous.  Cases can be won and lost on one or two references in the evidence or in the judgment.  In the unionís duty of fair representation case in Calgary that I alluded to a few moments ago, at the break we were going to find for the appellant because it seemed as if the Canada Industrial Relations Board had indeed ignored at least part of the delay by the union.  After the break, counsel for the union argued and we still would have found for the appellant.  Then counsel for the company that had been added as a party argued and he found two references in the Boardís judgment that suggested that the Board had probably not ignored the delay.  Given the deferential standard of review of patent unreasonableness, we upheld the decision.  So, you must know the material cold.

 A dry run of your argument before another lawyer in your firm is always useful.  Hopefully, the file can tolerate the additional time.  The dry run will do two things.  One is that your colleague will be able to tell you where your argument is convoluted and unclear.  The other is to identify questions the judges will ask.  A dry run through questions is always better than having to think of the answer for the first time in Court.
 

CONCLUSION

 The bad news is that what I have told you will not ensure you will win all your cases.  The merits usually have something to do with it.  The good news is that you will do a better job as counsel in Court.  And as you do a better job, your reputations will be enhanced.  Judges and other lawyers like to gossip about who is good and bad counsel and as your reputation becomes enhanced, you will attract more clients or you will be promoted to a more senior position.  You will be able to better judge the merits of future appeals.  You will provide better advice to your clients and you will become a more successful lawyer.  And your advocacy may even win some appeals that you otherwise might not have won.