THINGS LAWYERS DO TO ANNOY JUDGES: EDITED HIGHLIGHTS
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn in the case of The Hearing Clinic (Niagara Falls) -v- Ontario Ltd, 2014 ONAC 5831 where he was more than blunt in his assessment of witness evidence. He is equally blunt in his assessment of lawyers in a talk he gave to the Ontario Bar Association “A Judge’s View: Things Lawyers Do to Annoy Judges; Things They Do to Impress Judges“.*
This whole talk is worth reading, for the brilliant use of language alone. Some of it is specific to his own Jurisdiction, however this is one of those “must reads” for every litigation lawyer – no matter where they are. I have chosen 10 of the 40 points, this is a starter to encourage everyone to read it all.
*(I am grateful to barrister Charles Holland for drawing this to my attention).
“I recall one senior trial counsel who scowled and pouted every time I ruled against him. It was the strangest sight. Was he expecting me to say: “Counsel, I see that you are upset with my ruling. I am very sorry. I will reverse myself immediately.”
MY FAVOURITE BITS (AND IT WAS HARD TO CHOOSE)
Under the heading “Things lawyers do to annoy judges”
1. Rolling eyes, dancing eyebrows and other mannerisms
The judge has lots to say here: nodding heads; slamming down books; looking to the heavens; facial grimaces. Just keep a poker face “A bobbing or nodding head belongs on the dashboard of one of those motor vehicles with oversized tires and a loud muffler”
“I recall one senior trial counsel who scowled and pouted every time I ruled against him. It was the strangest sight.Was he expecting me to say: “Counsel, I see that you are upset with my ruling. I am very sorry. I will reverse myself immediately.”
(The one thing I would add here is guidance for anyone sitting behind counsel. The judge can see all your facial movements too. There are judgments when the demeanour of solicitors have been commented on.)
2. Paper trails: “Every piece of paper counts”
“In chambers, when perusing ex parte or consent motions, and, in court, when confronted with affidavits, facta, document briefs, case and settlement conference briefs and written submissions, judges also get to see the work product of counsel and reputations are tarnished or enhanced in the Every piece of paper that leaves your office is an advertisement for you and your law firm…. I find myself generally unwilling to attribute sloppy work to a secretary… Every piece of paper counts.”
3.Strong language: Threadbare is better than ridiculous
“… when in court, avoid strong language. Never refer to the submissions of opposing counsel, for example, as “ridiculous.” Instead, make use of your many years of university education and express your feelings with erudition by saying, “The argument of my friend lacks merit” or, if you are feeling particularly brutal, “The reasoning of my friend is threadbare.” That sounds so much better..”
4. You submit not “believe”
“Counsel should never say, “I think . . . ,” “I believe . . . ,” I recommend . . . .” or “In my opinion . . . .” Instead, you “submit,” “submit” and “submit” again, until the paint peels from the courtroom wall.”
5. Your appearance counts
“If I tell you that your physical appearance counts, this fact, surely, will have some of you inching towards the door. Successful counsel look successful. They look the part. They do not wear crumpled gowns or soiled linen . . . They do not suffer from “gaposis” – a slash of bulging white shirt across the abdomen between vest and belt buckle. Their gowns fit; they are neat and clean; they look as if they mean business. Lest you think the matter is too trivial for attention, let me quote from a wonderful little book – Advocacy: Views from the Bench, published in 1984 by Canada Law Book Inc. and authored by Robert F. Reid and Richard E. Holland, two giants on the Ontario High Court bench in the 1970s:
“Successful counsel look successful. They look the part. They do not wear crumpled gowns or soiled linen . . . They do not suffer from “gaposis” – a slash of bulging white shirt across the abdomen between vest and belt buckle. Their gowns fit; they are neat and clean; they look as if they mean business.
If you do not believe this go to court and watch the good counsel. You will see exceptions, but the exceptions are so good at their job that they can afford to ignore the dress code a little. They do not ignore it much. Walter Williston was sometimes a little rumpled, but everyone knew he had probably been up all night honing his argument. You will be permitted to play with the standards a little when you are that good. I do not propose to analyse the connection between proper dress and success, but it is there. One judge has a test. It is called ‘droopy-tab syndrome’. When he sees counsel in a set of wrinkled, floppy, soiled tabs he makes a mental note born of long experience: do not expect much from this one. He is not always right, but you would be surprised at how often he is . . . (Another judge once called counsel into his chambers and gave him a set of clean tabs.)
It is rarely of benefit for counsel to emulate the slept-in look. Ours is a superficial society and so the way you dress in the courtroom counts.
6. Master your facts
“It is annoying how often counsel do not know some of the basic facts in their case. Moreover, they are unable to locate the information in their trial brief or in their file, often suffering the shame of slinking into the body of the courtroom to obtain the information from their client. You must master your facts (technically, I realize, you master the evidence and the judge determines the facts).”
7. Fewer is better and brevity is best: “Be brief, be clear, be gone.”
Strive for quality, not quantity, in the issues that you raise or the points that you argue.
When you raise, for example, ten grounds for your argument, you are saying to the court, “Because I am unsure of the validity of my first three grounds, I am adding seven more, hopefully, to confuse you in the event that I can get lucky in the fog of battle.” The strength of your strongest arguments is diluted by the weakness of your weakest arguments. Avoid the shotgun approach. Shotguns are for those with a poor aim.
If you cannot succeed on your best three arguments, you are not likely to prevail on the rest. Offer a select menu to the court, not a buffet.
8. The written word is more effective
“I am sorry to be the pin that pricks your thespian balloon, but oratory wins elections, not family trials. The written word reigns. (a) put position in writing for court at earliest opportunity.
Put your position in writing for the court at the earliest opportunity. It is no longer true that a factum is merely “a prop for oral argument.”
I happen to believe that the only purpose served by oral argument is to respond to questions by the court arising from written argument. With the volume of cases now heard in our courts and the frequency with which decisions are reserved, the impact of oral submissions will fade with time. There is no good substitute for your own position on an issue and the surest way to that end is to put your position in writing and hand it up to the judge…”
9. Misstating facts or law and candour
“Judges have short memories. We are not likely to recall our previous decisions without prompting, or the last case in which counsel appeared in our court, or whether he or she won or lost or what the case was about. However, we remember our embarrassments. If counsel is found to have seriously misstated facts or law and the judge relies upon either – and I have been the victim of both – the judge will be embarrassed and he or she will remember you forever and ever.!
You will have lost the trust of the court.”