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Cromwell praises counsel who ' engage' with top court to solve problems

Thursday, September 29, 2016 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s departing judge told The Lawyers Weekly what kind of advocacy persuaded him most during almost eight years at the court.

“The best lawyers figure out where the court’s going to have a problem and help us…come up with an answer to that problem,” advised Thomas Cromwell, who retired Sept. 1 but has six months to finish his judgments. “They figure out what’s going to be troubling the court, and they get there fast, and do it in an almost conversational manner.”

On the other hand, reading to the court, or delivering an overly canned presentation, is inadvisable, he said. “That makes it very difficult for the court to get counsel to the places where we feel we need the help.”

A more successful approach, as exemplified by experienced barristers such as Supreme Court alumnus Ian Binnie, is to argue from point-form notes on a single page, conveying to the court what counsel considers to be the three or four most important points in the appeal.

“Lawyers have different techniques, but I think the most effective lawyers are people who engage the court,” said Justice Cromwell, who spent 11 years at the Nova Scotia Court of Appeal. “One of my judge friends, not on this court, has the expression that ‘that lawyer was able to make the rhinoceros fly,’ and…I’ve seen that happen — that a lawyer can stand up and just pitch a case in such a way that all of a sudden everyone is just on that wavelength.”

He recalled “one of the most magnificent arguments I ever saw in a courtroom” was presented by the great Quebec barrister, Raynold Langlois, who died two years ago. “He had a relatively small role in a very big case, and it was just magic to watch him in 10 or 15 minutes take a little point and develop it in such a common-sense way.”