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To help your case, help the judge grasp it

Thursday, September 03, 2015 @ 8:00 PM | By Cristin Schmitz


“Help us do our jobs” is the simple plea from the bench to counsel seeking success in courts where judges have too many cases and not enough time.

“To be a better lawyer is to understand what we need to do with all the information we’re receiving, so that we can be most efficient at our job and you can be most persuasive in helping us reach the conclusion that you’re asking for,” Alberta Queen’s Bench Justice Sheilah Martin told about 80 jurists attending a Canadian Bar Association Legal Conference presentation here Aug. 15. “I think the most effective [counsel] that I’ve seen are people that understand what my job, as a trial judge, is at the end of the day,” said Justice Martin, dean of law at the University of Calgary before going to the bench a decade ago.

In a presentation featuring advocacy advice from judges at three court levels, Justice Martin advised counsel to hone in on core issues and avoid being sidetracked.

“At the end of the day a trial judge has to decide, has to choose amongst the arguments and the evidence that’s put forward, so I want a counsel that can tell me what the issues are — the real issues in dispute — and stay with them.”

To do that, counsel must be “exceptionally well-prepared. You have to have understood the law. You have to have been able to marshal your facts. And you have to have been able to use your own judgment to say: ‘I don’t need to go down this road. I don’t need this point. I don’t need this evidence.’”

Justice Martin noted that when she was a civil litigator, she carried around a written table in which she identified the remedy her client was seeking, what she needed to prove, and every piece of evidence she was going to present in support.

“Well guess what? I do the same thing as a judge,” she said. “If you’re trying to establish that you’re entitled to a particular remedy, or a particular result, I need to know what’s the law, and then I would like a thematic organization of the evidence…You’ll define the issues; you’ll argue thematically; you’ll use a closing statement to make sure that your evidence is tied to what you need to prove.”

In sum, she said, “you have adequately helped me with issues of credibility.”

In her experience, counsel too often tells a trial judge “you just heard evidence for three or four days. You’re very familiar with it. And so I’ll trust you to do with the evidence what you will, and I’m asking you to do the following.’ ”

That’s not helpful, Justice Martin said.

“My obligation to you, and to the public, is to write a decision with reasons. I have to make findings of fact, and I have to make determinations of credibility, and I really want you to help me do that,” she stressed. “I want you to understand that if the facts are disputed, you have a part where you say: ‘Here is the law. The evidence on A is this, on B is that. I invite you to find the following fact — here is the key — because, because’ and give me your reasons,” she emphasized. “Because I’m going to have to say: ‘I find the following fact ‘because’ and give reasons. So if you help me in that process, that is invaluable.”

Justice Martin urged counsel to follow the same approach with respect to witnesses’ credibility. “Don’t think that you have to parse the transcript [to] give me 50 examples…Three or four good ones, and you’re golden,” she suggested.

While trials are, in essence, “voyages of discovery,” Justice Martin advised lawyers to make an opening statement that helps the judge understand where the case is headed.

“Ten minutes into a witness I might be asked to make a finding on relevance. Well, if I don’t really know what’s going on, that’s exceptionally difficult. So if you try to put yourself in my shoes, and say: ‘What does this person need at this juncture in a trial where they know nothing?’ — I think that kind of question might help you be more effective.

The panelists agreed that, generally speaking, “less is more.”

Counsel should think about what the judge needs, advised Alberta Court of Appeal Justice Patricia Rowbotham.

“It is a focusing exercise,” she said. “You can’t just throw everything at the court and expect us to work through it. You need to think very carefully about what’s important. What are your grounds of appeal, how to best build a persuasive argument…”

Factums do not have to hit their page limits, she emphasized.

“I don’t know why everyone thinks they have to fill up all 30 pages.”

Moreover, the judges said they don’t appreciate a ton of case law. “I’m not a fan of authorities from everywhere,” Justice Rowbotham said. “I need to know what the Supreme Court of Canada said. I need to know what my court said. I need to know what other courts of appeal said. And if there is nothing on point, I want to know what the Court of Queen’s Bench said. I don’t need 1,000 cases on the standard of review, or something. You should be able to do it like the law students do in a moot: Pick your six cases and go with it.”

She noted that when Alberta Court of Appeal judges’ panels enter the courtroom, they usually start by informing counsel that they have familiarized themselves with the facts of the case, the factums, the judgment in the court below, some of the evidence and some of the authorities.

“What we’re trying to say is: ‘Don’t stand up and tell us the facts,’ ” Justice Rowbotham said. “But 50 per cent of the time, counsel doesn’t pick up that signal and uses valuable time going over old ground and we do have time limits in the Court of Appeal and we do enforce them relatively strictly.”

The judge said she understands that counsel may want to give a brief recitation of the facts in order to get going, “but you really should be prepared to get right into the heart of the matter the minute you go into the courtroom.”

The most important element of appellate advocacy is often the factum, she said. “You can save some of a bad factum with your oral argument, but you are starting with an uphill battle. So the time and preparation, in my view, can go largely into the factum.”

An overview paragraph stating what the appeal is about, how the trial judge allegedly erred and the requested remedy is helpful, she advised. “When you’re faced with a box of books and factums, you’re thinking, ‘What do I read first? What do I do?’ ” To be able to zero in on the items at issue is “hugely important.”

She recommended that counsel write their factums stating the ground of appeal, what the appellant wants, and “then marshal underneath it the evidence you need to refer to, the path the trial judgment followed that you thought was wrong, and the authorities you need, and go on to the next point. It doesn’t have to be done with a great, big chronological argument.”

Alberta Provincial Court Judge Anne Brown, who presides over criminal cases, said “it would be very helpful to know, at the outset, what you are looking for, and then start with submissions.”

The judge said, on occasion, she has also appreciated getting information in advance of the hearing from counsel (copied to opposing counsel) to help her deal with any matters out of the ordinary.