Advocacy isn’t a science, and artful persuasion won’t always carry the day. But in a profession where speeches and communication matter, avoiding some simple pitfalls can go a long way in advancing your client’s interests as well as your own career and reputation among members of the bench.
During the year I spent as a law clerk with the Ontario Superior Court of Justice, I observed a great deal of advocacy — both good and bad — and gained some insight from the judicial audience into how advocacy can affect decision-making. Young, aspiring lawyers should adopt the following habits to achieve the results they want.
Understand who you are talking to. This won’t come as a surprise to most lawyers, but judges really are people just like you and me — with the obvious exception of the very important office they occupy. Except in rare circumstances, you won’t be the first lawyer they’ve heard submissions from. Most judges have been on the bench for many years and have seen and heard countless cases of almost every variety. Most of them were also successful, celebrated litigators before they were appointed. You can bet they’ve seen a lot of things in their time not only as judges but also in their earlier careers as lawyers. Conduct yourself accordingly.
This means always showing the court the courtesy it deserves. Always be professional. Don’t be argumentative. If you lose on a point, move on. Avoid shenanigans that give the impression that you’re unprepared or taking the opposite party by surprise. If you say you’re going to do something, do it and do it on time. Realize that while judges are presumed to know the law, they won’t always know every point as well as you.
You’re there in part to help the court, so be helpful. Also know that judges are busy just like you — maybe even busier. Make sure you respect the court’s time and use it as efficiently as possible. Endearing yourself to the court in these ways won’t change the outcome on the merits, but it can’t hurt.
Do your homework. Lawyers play a larger role in the outcome of a hearing than you might think. The nature of the adversarial system means that judges are heavily reliant on you for the evidence and case law you present. Poorly drafted, badly researched written submissions can mean that a judge may have to go elsewhere to fill that gap. Good advocates will do all they can to prevent this from happening.
Know your focus
It is important to remind yourself that it’s not about you. It is about almost everything but you. Anything you do to draw attention away from the substance of your presentation can be very distracting and impede your ability to effectively communicate your arguments. When the court’s attention is directed towards an advocate’s conduct either in or outside of the courtroom, their submissions could get lost in unhelpful distractions.
Also, when you’re speaking to a judge you’re not giving a lecture, you’re giving submissions. As a result, you should never tell a judge what to do, only suggest a certain course.
For the presentation, the focus should be on what you’re saying, not on how you’re saying it. The rhythm of your speech should be even and measured. Don’t rush through your submissions or examinations and cross-examinations. Keep it slow and take your time. You and your client may have waited months or years to have your case heard, so don’t throw away your kick at the can with unhelpful distractions. This can include things like walking around while you’re talking or speaking under your breath. But do look the judge in the eye, don’t just read from your notes.
Give a clear and confident pitch
You should do everything in your power to be clear and concise. This includes shaping the theme of the dispute early in your submissions in a manner that’s accessible to the court and favourable to your client. The equities of a case can be very powerful.
In your presentation you should do your best to leave the judge with the impression that you’re confident and understand your own arguments. That means not only saying what you mean and meaning what you say, but also sounding like you believe it yourself. If you don’t, you can be sure others hearing you won’t believe it either.
I would also suggest being selective about what you read verbatim to the court. You have scarce and precious time to persuade the court of what you’re saying. Don’t waste it by reading passages verbatim from cases or other documents. Don’t get me wrong, there will be times where that will be helpful and even desirable, but I think good advocates will know when to draw a judge’s attention to a passage by reference and summarize its substance rather than taking the court through what can be a painful recital of information.
Reading too many passages can distract from what you really want to say and needlessly prolong your submission with very little value added. Judges can read. You and your client will be better served if you’re selective about what you read verbatim.
Know when to adapt
This leads me to my last point, which is to pay attention to body language. Body language can give you important insight into how effective or ineffective you’re being. I’ve seen obvious signals overlooked. If your judge looks like he or she is under a waterfall, consider adjusting your technique. Less can be more.
There’s no panacea, and facts and law matter, but so does advocacy. It’s your job to breathe some life into the proceedings. If you avoid some of the pitfalls I’ve outlined and adopt some of the other habits, you will be a lot further ahead than other lawyers who don’t.
Marc Whiteley is a lawyer in the commercial litigation practice at Pallett Valo LLP in Mississauga, Ont. Marc joined the firm after serving a year in a judicial clerkship with the chief justice’s office at the Ontario Superior Court.