Some tips
on oral advocacy from Justice Rothstein
*****
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.
*****
For those of you who are classical
music buffs, I’ll start this presentation with variations on a theme of Catzman
and then move to the main work. Seven variations on Catzman’s rules for
you to remember:
1. Don’t 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. It’s easier than trying to figure out whether it’s right.
2. Cram everything into the same
thought. In that way, you won’t forget anything. Any half-baked judge
will be able to sort out what you really intend.
3. Don’t 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. Don’t 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, don’t 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, don’t quote from the case verbatim.
Just paraphrase. You can say what the judgment says better than the
judgment itself.
7. Don’t worry if the judge stops
writing. It means that he is mesmerized by the force of your argument.
While I can’t 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
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 don’t 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
So, with all the emphasis on the importance of a factum,
don’t 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
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. Don’t 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. Don’t worry about every detail.
Don’t go on tangents. Just hit the high spots. You won’t be
misleading the Court.
Here is an example taken from a case we heard a week
ago in
“This case is about a
union’s 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 didn’t do anything
for long periods of time. The Canada Industrial Relations Board in its
decision didn’t address the union’s 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.”
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 don’t think many cases go by without me asking a
lawyer, “why are you telling us this?”. 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.
Don’t 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. Don’t 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, don’t 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 don’t know what our statistics are here but certainly the vast majority of
judgments are upheld on appeal. So, don’t 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 wasn’t 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
respondent’s 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, “Mr. Rothstein, your argument is so
restrictive it frightens me”. I was a little put off at this point so I
responded, “My Lord, I am quoting what Judge Strayer said. It is his
argument”. Iacobucci shot back without a pause, “Mr. Rothstein, Judge
Strayer isn’t here. You are. Your argument frightens me.”
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 don’t 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 opponent’s interpretation is not.
5. Questions
Some lawyers don’t like the judges to ask questions
because it distracts them from their argument. But you should welcome
questions. At least you haven’t 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 didn’t 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 judges’ questions are argumentative or even
mischievous. Perhaps one judge is trying to make a point with a
colleague. But you can’t 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 judge’s
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 can’t say that the hypothetical doesn’t 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 judge’s concerns.
If you don’t, 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 union’s duty of
fair representation case in
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.