ADVOCACY A JUDGE’S VIEW SERIES 2 PART 9: A SURVIVAL GUIDE TO ADVOCACY: “ATTITUDE IS EVERYTHING IN ADVOCACY

Here we look at guidance given in 1998 to lawyers in Canada. Mr Justice Ian Binnie, a judge of the Supreme Court in Canada, was giving the first John Sopinka Advocacy Lecture.

As ever the aim is to encourage you to read the original available here Binnie-SurvivorsGuidetoAdvocacy

“I have three arguments, one is hopeless, the other is arguable, and the third is unanswerable”. The Commissioner, somewhat impatient, said, “Well, why don’t you just give me your best argument”. John said, “Oh, I am not going to tell you which is which”.”

JOHN SOPINKA

John Sopinka had died the previous year. He had been an advocate in private practice and appointed directly to the Canadian Supreme Court in 1988, having no previous judicial experience (he had also been a professional footballer whilst studying law at university).

This lecture makes it clear that he was someone we would all like to have met. It is also clear why his colleagues set up a series of lectures to honour him. Mr Justice Binnie remembers John Sopinka as an advocate.

“The first point I want to make about John Sopinka is that he was a man with an attitude – only in extreme circumstances would he tug his forelock or use the phrase “May it please the court”. He liked to win cases. He didn’t think it was his job necessariiy to give pleasure to the court. And he never knew when he was beaten.”

“In one of the numerous motions to exclude evidence, which were invariably lost, John began by saying, “I have three arguments, one is hopeless, the other is arguable, and the third is unanswerable”. The Commissioner, somewhat impatient, said, “Well, why don’t you just give me your best argument”. John said, “Oh, I am not going to tell you which is which”.”

“Another of John’s great strengths as an advocate was his ability to adapt hs personality and strategy depending on what court or tribunal he was addressing. I only saw him once argue a case in the Supreme Court of Canada. Instead of the usual “in your face” style he preferred before trial courts, he adopted an altogether more conciliatory approach, pitching his case one way to one judge and another way to another judge as he looked back and forth around the semi-circle of wintry faces from end to end of the bench. Unlike some counsel, he didn’t focus all of his argument at the middle of the bench, where experience is deepest but the votes carry no more weight. Like the experienced violinist that he was. he played to every comer of the auditorium.”

APPEARING BEFORE THE SUPREME COURT (IN CANADA)

The lecture is aimed at advocacy before the Supreme Court. Most of the guidance given could apply to any appellate court.

“First of all, you’re not looking just to hang the jury, you’re trying actually to persuade a majority to your point of view. You can’t afford to give up on any of the nine votes until it’s all over. You don’t know who is on your side until the judgment issues. John didn’t abandon his deckchair on the Titanic until the band played.”

THE SUNDOWN RULE

“… keep in mind that in most cases the Supreme Court operates on what I would call the “sundown rule”. When you start your submission at 9:45 in the morning, remember that the judges are probably going to want to reach a tentative decision on the appeal before the sun goes down.”

THE GUIDANCE GIVEN

(i) The key to advocacy is focus

(ii) Look at your appeal from the judges ‘perceptive.

“You might be surprised at how many practitioners apparently fail to reflect on why leave was granted in an appeal that is not as of right. In my short time on the court there have already been occasions when the legal issue which the Court expected to be argued in a criminal case was ignored by the appellant.”

(iii) Don’t  assume everyone agrees about  what the issue is

“Some counsel operate on the assumption that everybody will ultimately agree on what the argument is about. This is a mistake.”

(iv) nailing the jelly to the wall

You can read this for yourself.

(v) Don’t overlook in oral argument any point essential to your success

(vi) Questions from the Bench: listen before you leap

“You are confronted with nine judges who are going to have to deliver at least their preliminary views of what this appeal is all about shortly after the conclusion of oral argument. If something is in the back of my head and I am not sure what the answer would be from one side or the other, I’m going to ask it. You may have spent the previous night in a hotel room mapping out each minute of your argument. I am sorry of course if my interruption disrupts your game plan and bums valuable time. I need the answer to my question because it helps me to do my job even though it may make your job a whole lot messier. As the expression goes, sauve qui peut.”

Having said that, there are many different kinds of questions and you should respond to different types of questions in different ways.”

TTe judge identifies seven different types of question.

1. The genuine inquiry for enlightenment.
2. A more confrontational question 

“The appellant says this, and you say that, but 1 don’t see how your point answers her point. Could you elaborate?”

3. Stating your position.

“The third category of question is where the Court goes further than asking you to elaborate and a judge purports to state your position”

4. Overtly hostile fire.

“It’s at moments like this that you should close your eyes and think of John Sopinka standing on the deck as the icebergs gathered at the Sinclair Stevens . Inquiry. Don’t try to please the questioner at the expense of weakening your argument. You don’t know at that stage how many of the judges are silently agreeing with you. Sometimes hostile fire questions provoke counter-fire from other judges, in which case, agreeably from your perspective, the hostile questioner may be engulfed in back-fire.”

5. Collateral fire.

“That is where you are proceeding happily along one train of argument then suddenly a question seems to come off the wall.”

6. Cross-fire

When the judges are, essentially, arguing between themselves.

“My advice in a category six situation is to mumble inaudibly and let the titans slug it out.”

7. The Martland question.

Named after one particular judge.

“at some point in the proceeding there would be a kind of chilly silence and Martland would clear his throat and out would come the question trailing wisps of smoke behind it. There wasn’t anybody in the courtroom who didn’t realize that the moment of truth had arrived. If you were able to deal with the Martland question the case was as good as won, and you felt yourself’ galloping towards the sunlit uplands of victory. And if you failed, there was a kind of a death watch that set in. The questioning from other members of the bench dried up.”

ATTITUDE

“Finally, I want to go back and pick up my first point about John Sopinka’s attitude. Attitude is everything in advocacy. No matter how disastrously you think the hearing is unfolding, be steadfast and defiant. Don’t crumple. Don’t take up the posture of a whipped cur, signalling by your body language that you wish you were somewhere else. You don’t know who your friends are on the bench or how many they are in number. If you let yourself down  you let them down as well, and above all you let down your client. If at the conclusion of an apparently disastrous hearing you can walk out of there with flags flying and your chins up, then in my book you can say that you arc an advocate worthy of the John Sopinka tradition.”