Excerpts from the Queen's University Mooting Manual, 2000-2001

- Oral Advocacy Tips -

Presentation of Oral Argument

Chief Justice Dickson in an address to the Criminal Lawyers Association made the following
comment:

"We appreciate counsel who present clear, carefully ordered legal arguments rather than rambling
stream-of-consciousness soliloquies. Most of all, we appreciate an argument that is concise and to
the point. We know that submissions of the desired quality do not just happen. They are the product
of long hours of careful preparation, research and thought. Not only do arguments born such efforts win
cases for client and gain counsel the esteem and appreciation of the Bench - they are essential to our
system of justice."

You may be vigorous and forceful but you should not be violent or loud. You are not addressing a
public meeting.

You should not memorize your argument. You will not have an opportunity to present a memorized
speech. You should not read your argument. Your argument must be presented as something you
believe in, as part of you. Your job is to seek to persuade and you must make sure that the judge is
with you. Gabbling off memorized lines will not be effective. One technique is to have a series of cards
concisely recording your arguments in summary form, from which you can develop your submissions
in accordance with the flow of the moot. Others find this constricting and prefer to rely on some notes
and reminders written on the factum. Most strongly advise against writing out your argument in full.

Practice your argument in front of other people if you can. If they do not understand the message you
are trying to convey (regardless of whether they are conversant in the law) then your argument is poor.
Judge your time carefully. Allow for questions but prepare both for few questions and many questions.
Do not, however, panic if you finish your submission early. This may well be a virtue and is certainly
better than lengthening your submissions unnecessarily.

If you are counsel for the Appellant and open properly you may determine the grounds on which the
case will be argued, the objectives aimed at, and the direction and manner of approach. You may thus
compel the Respondent to conform to your plan in this area.

Tell the court at the very beginning what it should decide. Then ask the judge if he or she is familiar
with the facts or would like you to summarize them. If the judge requires a statement of the facts, you
should mention both the favourable and the unfavourable. Remember that you will not assist your case
by omitting or glossing over the unfavourable facts.

Now commence your argument. You should do more than merely say, for example, "there are two
points to the issue in this case, jurisdiction and choice of law." You should say, "the first problem is
one of the jurisdiction of the court. On this question the plaintiff makes the following submissions, first
etc., second etc., and so on." Then indicate what points you will deal with and what your colleagues
will handle. When you come to each point you should not say that you will deal with point number
"five", but that "you will now," for example, "put forward your submission that the court had jurisdiction
because..." Then argue that point and make your submission on the principles and authorities you
have cited. Make your point clear. Leave no doubt as to its relevance to your case. You should, if
possible, be prepared to restate your point in different ways, if the court does not accept your first
presentation of it.

The points you advance should be so arranged that your argument proceeds point by point in logical
order from introduction to conclusion. Alternative arguments should follow in a similar logical order.

If you are counsel for the Appellant you should, without unduly interrupting the flow of your own
argument, use every opportunity to attempt to meet argument that the Respondent's counsel is clearly
going to use on the basis of the Respondent's Factum. Do not, however, over-anticipate and thereby
ruin the clarity and coherence of your own argument. You will have a further opportunity in reply to
respond to the Respondent's submissions. Use your reply to refute effectively the essentials of the
Respondent's case. Do not use it to bicker about points peripheral to the Respondent's argument.
While you may wish to restate the essentials of the case, do not clutter up your reply by detailed
repetition.

If you are opening counsel for the Respondent, you may wish to restate the facts, or some of them, in
a pattern consistent with the Respondent's theory of the case. You and your colleague should handle
your points in a method similar to that recommended for the Appellant's counsel and strive to avoid
having your conduct of the case dictated by the Appellant's counsel. Your primary task is to refute the
points raised by the Appellant, but you may also find it necessary to break new ground.

Answering Questions

Answer questions from the judge courteously and directly. The way you handle your questions is the
best measure of your ability as an advocate.

Some counsel experience great difficulty in answering questions. There are several ways in which this
trouble may be met. In the first place, thorough preparation should make you familiar with the subject
from all points of view so that no question can take you by surprise. You should know the facts so well
that even if your train of thought is interrupted you can answer a question of fact that is at the moment
irrelevant. You should know the law so well that you can turn your mind to a case, principle, or rule
that you may have decided to treat as irrelevant and can show why you have discarded it.

No matter how well prepared you are, it is a matter of elementary precaution to pause at least
momentarily before answering a question. You may find it necessary to ask a cross-question to
ascertain what the judge wants to know. He or she may merely be trying to ensure that he or she
understands the point you are trying to make. The judge may be so far ahead of you in your argument
that he or she wishes you to sum up in a way that can be accepted. The judge may wish to be
reassured on a collateral point before going ahead with the main focus of your argument. He or she
may see a weakness in your submission. Whatever the judge is seeking, you should study the
question briefly before answering.

Do not presume that all questions must be traps. One indeed is well advised to approach a question
cautiously. However, upon reflection, you may find that an unqualified or qualified answer may be given
readily.

A judge may ask a question which relates to a point raised later in your submissions. It is advisable to
briefly answer, then point out that you had intended to deal with the point further on in your
submissions. The judge is thus given an indication of where your argument is headed. The judge is
assured that a point in which he or she is interested will be considered. He or she likely will reserve
evaluation of your answer until that answer is articulated within an appropriate context.

This same approach is advised even where the point is one which is to be dealt with by your partner.
You may briefly answer the question, then point out that it had been intended that the point be dealt
with by your partner. This of course presumes that you are familiar with all aspects of the case,
regardless of which partner is assigned to argue certain points. Where you are insufficiently confident
to venture a response, but think that a moment's conference with your partner will allow you to answer
satisfactorily, you might request the judge's indulgence for that moment. It goes without saying that if
you cannot possibly deal with the question, you have no choice but to reply only that the point will be
dealt with by your partner.

A judge may seek to draw a further inference from your submissions, perhaps by posing a
hypothetical situation. You may be lead into a discussion which is beyond the scope of your
submissions. If you can appreciate and support the judge's inference, then do so. Alternately, you
may be unsure of whether a further inference is warranted, but certain that, with respect to your
submission, it is unnecessary. If so, you should indicate that, and explain why the inference is
unnecessary. Of course, if you are able to go further, and say why the inference which the judge
seeks to draw is erroneous, and yet show why the argument which you had presented nonetheless is
persuasive, you should so respond.

The way in which you handle questions may well have a significant impact on whether your
submissions are accepted. Do not lose sight of questions as being indications of the judge's interest.
Use these indications to your best advantage. The judge's questions may be used to invite discussion
of particular points so as to give coherence to your overall submissions. Questions, therefore, should
not be answered impatiently, as if you are impelled quickly to jump back into your prepared
submissions. Rather, questions should be answered thoughtfully. Above all, bear in mind that there is
no reason to be intimidated by the mere asking of a question.

The Use of Authorities

An argument need not consist of a series of propositions each being followed by one or more cases in
support of the proposition. If there are no relevant precedents, do not cite irrelevant precedents. Be
imaginative, and do not abandon an argument simply because it is original. Use of secondary sources
such as articles and texts is encouraged.

Do not begin your argument with trite statements of background law that do not contribute to the
resolution of the issue in the particular case. Come to grips quickly with the real issues.

The manner in which you use authorities depends on your style of presentation. Some counsel who
appear in appellate court rarely cite more than one or two cases even though they refer to others in
their factum. These counsel attempt to persuade the court not by precedents but by reasoning. They
are, of course, prepared for any questions that arise about the cases they have referred to. They are
also prepared to deal with cases cited by their opposing counsel.

When referring to a cited case during argument, counsel need only draw the attention of the judge to
the first reference to the case in the factums. Page number and paragraph number should be
indicated. For example, "I refer Your Ladyship to the Appeal Court decision in Hedley Byrne v. Heller,
found in the Appellant's Factum at page 3, paragraph 18," is sufficient. Further citation is not required
when the case is mentioned again beyond, for example "Again, My Lady, I refer to the case of Hedley
Byrne v. Heller in support of ...etc." This method of citation has replaced the older method of providing
full particulars of each case orally to the court.

Be prepared to provide a brief recitation of the facts and the decision in a case following the initial
reference to a cited case. For example "That case involved a veteran who agreed to buy land from the
Director under the Veteran's Land Act. The court held that before he received a conveyance he was a
tenant at will, and that therefore his wife at that stage could have no dower at common law, and no
homestead right in the land under the Alberta Dower Act". (Inquire after such initial reference, if the
judge wishes you to do this.)

Don't merely cite a case. Use it. Your analysis of the precedents will have shown you which of them
are on point and which are distinguishable. A brief statement of the facts in a case should show that it
is very similar to the case at Bar, or that it at least supports the point you are making. Be sure that
you apply the reasoning of the precedent for your purposes, showing that it is either an authority or
distinguishable, by appropriate use of the significant facts of the case at Bar.

Do not dodge a case that is against you. Admit its existence and deal with it in the following way:

a.distinguish it, or

b.show that it has been overruled, or

c.demonstrate by its subsequent history of being distinguished, its reasoning being confined,
doubted or not followed, and by discussion of its principle, that it should be overruled or not
followed by the Court you are addressing.

Decorum in Court

When the judge enters, he or she and you should bow to each other. You are fellow members of the
same profession and owe each other mutual respect.

In addressing the court, the proper form of address is "My Lord" or "My Lady" when speaking to the
judge directly, and "Your Lordship" or "Your Ladyship" when you would otherwise use the word "you".

When referring to judges of other courts do not merely use the surname of the judge. Do not say "in
his decision in Smith vs. Jones, Alexander, J. states..." You should refer to "Judge Alexander" or "Mr.
Justice Alexander" (as appropriate) or "Chief Justice of the High Court Alexander" (as appropriate).
You should always be aware of the court rendering a particular decision relied upon, and refer to
Supreme Court judges and Court of Appeal judges as "Madame Justice: or "Mr. Justice". Provincial
Court judges are referred to as "Judge".

Referring to other counsel, address them as "My Friend (colleague), Mr. or Ms.---", not "My worthy
colleague" or My worthy opponent". The reference to "My Learned Friend" is still reserved for a Q.C.

Any session of court is a serious and formal occasion. Dress accordingly. You are required to gown
and gowns are available from the faculty Registrar.