ADVOCACY – THE JUDGE’S VIEW III: MORE GUIDANCE FROM CANADA

As part of the series looking at the advice that judges give to advocates (and how this relates to civil litigators in particular) we return to Canada. Judge Carol Baird Ellan collected the views of 12 of her colleagues in giving an address to the CLEBC Advocacy Conference in 2001:  Advocacy in Provincial Court: A view from the Bench.  Again the purpose of this post is primarily to draw attention to the original talk. I have extracted the information that may be of most interest to civil practitioners,  however this is no substitute for reading the original.

“One judge says only judges may make jokes; I would modify that to only judges may make bad jokes.”

THE JUDGE’S KEY POINTS

Preparation.

• Prepare early.
• Think.
• Know the theory of your case.
• Anticipate.
• Know the rules.

Take a view

This is something I like to do, wherever possible, in liability trials.

“If possible go to the scene of the event. Go yourself. Do not send someone. Look with your own eyes. One judge says he has watched counsel examine a witness about something that happened within two blocks of the courthouse where it was obvious he was not familiar with the scene.”

Instruct the witness

The judge is not here advocating witness training but something more fundamental.

“Preparation also means advising witnesses and clients as to court protocol, decorum and appropriate dress. For those who meet their client at the courthouse on the morning of trial (hopefully not for the first time), take a glance before you go into court. Is she chewing gum? You would be surprised how many people come into court and even take the witness stand with gum in their mouths. Is he wearing a t-shirt with an inappropriate slogan or design? It is important particularly in Provincial Court to get the client or next witness physically into the courtroom, and to be ready when the case is called. You might be stuck if there is no time or no means to fix unfortunate attire, but then you might want to consider whether to say something before the judge does.”

DEMEANOUR AND DEPORTMENT

“Counsel who dress oddly or provocatively, who have distracting habits, or are woefully unprepared or unskilled, will do their case and their clients a disservice. Judges of course must be expected to overcome any personal reactions to counsel’s foibles; however, you might reasonably conclude that it makes their task much harder and cannot do your case any good to have them fighting distraction.”

Quick pointers

• Don’t argue with witnesses, opposing counsel or the judge.
• Be polite and respectful to everyone in the courtroom – including court staff.
• Maintain perspective.
• If you lose appeal – don’t whine.
• Look at the judge when speaking to him or her.
• Comb your hear and wear business attire.
• “Don’t do anything sneaky or underhanded. Cases come and go, but you have only one reputation to ruin. Lawyers have long memories and gossip a lot about each other and about judges. What do you think the judges are doing?”

• “One judge says only judges may make jokes; I would modify that to only judges may make bad jokes.”

• Be punctual.

• “Develop a reputation for fair dealing and otherwise honourable behaviour both in and out of court. Once that reputation is damaged it is very difficult if not impossible to repair it. If you develop a good reputation with the bench and your colleagues at the bar, you will find them easier to get along with, and it will stand you in good stead when you apply to the bench.”

DEVELOPING SKILLS

The lecture has a a useful section on skills development for the advocate (which could easily be extended to the litigator generally). One of the salient points  is

“Bear in mind that a judge-alone trial requires persuasion of the judge who is presiding. If the judge asks a question, listen and respond. These are your biggest clues to how you are doing, and not generally attempts on the judge’s part to thwart you or interfere in the conduct of your case.”

RELATED POSTS

On judges and advocacy

• Things lawyers do to annoy judges: edited highlights 
• Advocacy – the judge’s view II: Useful guidance from Down Under.

On written submissions

• Speculative skeleton arguments are of no assistance.
• Picking up bad citations: & skeleton arguments – still too long.
• Skeleton arguments: do them properly or you won’t get paid (the triquel).

• Skeleton arguments: if you don’t do them properly you won’t get paid.
• Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
• Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions..
• Skeleton arguments more examples online: You can have Cotton if you can’t have silk.
• Drafting skeleton arguments and notices of appeal: more examples online.