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The demise of oral advocacy? | Gary Joseph

Wednesday, April 21, 2021 @ 1:56 PM | By Gary Joseph


Gary Joseph %>
Gary Joseph
This week I had the privilege of arguing two difficult appeals in the Ontario Court of Appeal. I am a perfectionist and my own biggest critic, so later while reflecting on my advocacy this week, I had time to pause and think about how I got to this point in my career. More specifically how whatever skills I do possess as an advocate, came to be. Two immediate thoughts came to mind, watching and doing. Having a great interest in the development of young advocates, I then reflected on what opportunities I had that perhaps they do not and will not have to develop their skills.

Doing

As a young lawyer I took every opportunity to get into court and get on my feet. From small claims court, to landlord and tenant motions to summary conviction matters in criminal court. It didn’t matter, I needed and seized upon the prospect of standing up and presenting my case in whatever forum I could. The fees didn’t matter. Truly, I did masters’ motions for local lawyers (practising near our offices) for $60 per motion. I took legal aid certificates and many pro bono files. These early years experiences helped me get over the jitters of presenting in court and allowed me to test out my skills.

In my first contested motion heard in Courtroom 7 at Osgoode Hall (before a packed courtroom I might add), the learned Supreme Court of Ontario justice (yes that is what the court was called then) entered in his dashing robes (please check them out on a Google search … they were magnificent) and proceeded to reduce me almost to tears during the course of my argument. When finished, as I left the courtroom I could hear a squishing noise from my shoes. My perspiration shed during a lengthy critique of my sad argument by the stern justice (his lordship as he was then called) had found its way to my shoes and the embarrassing noise it made as I left the courtroom added to the embarrassment I suffered in losing my first contested motion. Later on reflection I realized that I loved it and wanted more and more of this.

Sadly, today the opportunities for young lawyers to test their advocacy skills have narrowed or are gone entirely. Oral advocacy of the kind I describe above has become less important to the practice of family law. I fully support the movement to less adversarial methods of resolution but as my late and respected senior partner James C. MacDonald, QC, always reminded me, there will always be a need for oral advocacy skills in our practices.

Watching (and learning)

Here I have even greater regret. I was so lucky to spend large parts of my time in practice “hanging around courts” waiting for my case to be called. Besides gossip (which I loved) what did I do? I watched other lawyers present their cases. Watching skilled advocates allowed me to learn and hone my skills. Watching the greats taught me many of the oral techniques of persuasion necessary to “make your case.” Obviously, one has to find their own path to competence but the ability to watch and learn is a big part of that. Today, there are fewer trials, fewer motions, fewer opportunities to sit in. I have written extensively of the benefits of Zoom court and the many advantages to the client. I say we should never go back to the old ways. However, the downside of a trend that I believe will continue is the evaporation of the ability to learn as I did.

I hate to pretend that I am some wise oracle bestowing wisdom to the young but please hear me. To be part of our wonderful justice system and to be an advocate in our courts is a privilege and satisfying pursuit for lawyers. There is a rewarding sense of accomplishment to skillfully present your case in court and persuade a justice or a panel of justices of your position. Clients greatly appreciate oral advocacy skills. Find opportunities to “do” and “to watch and learn.” Even though many of the doors open to me as a young lawyer are now closed, a closed door is just an opportunity to find an open one. Good luck.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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