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Basics of good oral advocacy more important in virtual hearings, says Alberta chief justice

Monday, June 01, 2020 @ 9:12 AM | By Amanda Jerome

In a fireside chat with The Advocates’ Society, Chief Justice Catherine Fraser, of the Alberta Court of Appeal, outlined how the province’s top court was able to move quickly to virtual hearings when the COVID-19 pandemic hit and how the current situation highlights the basics of good advocacy.

The online chat, moderated by Douglas McGillivray, a member of The Advocates’ Society’s Alberta Regional Advisory Committee and counsel with Burnet, Duckworth & Palmer, LLP, was held on May 21.  

McGillivray noted that the Court of Appeal “hardly missed a beat” when social distancing rules came into effect in mid-March. However, Chief Justice Fraser described the experience as “controlled chaos.”

“We had to reinvent, on the fly, how we do our work,” she said, noting that the court moved to a work-from-home system, allowed e-mail filing and extended filing dates, implemented an online payment portal for filing fees, worked with the justice minister and Ministry to address critical court needs and adopted a virtual meeting platform.

Chief Justice Catherine Fraser

Chief Justice Fraser said the transition happened while the court continued to operate at full hearing capacity.

The chief justice noted that a few years ago there was a “project to digitize all the courts in Alberta,” which was cancelled. However, she stressed, the Court of Appeal decided it “could not wait on this issue any longer and that we had to do something to move to a fully electronic system.”

“We had nearly completed our fully electronic system when the pandemic struck,” noting that the Court of Appeal has an electronic system internally, “which means that all the court staff, and the registry, and our case management officers can access anything in the court record, along with the case materials.”

“That meant we were able to move quickly to working from home, holding hearings by videoconference or audioconference and communicating electronically with counsel and parties on upcoming matters,” she added.

The next priority for the court, the chief justice said, is to launch a public e-filing portal, which is targeted to begin on Aug. 31. Chief Justice Fraser noted that the portal will allow counsel to file records electronically and will give parities and their counsel access to the court record, which they currently do not have.

Douglas McGillivray, member of The Advocates’ Society’s Alberta Regional Advisory Committee

An outstanding issue, she said, is what level of public access will be permitted to the court files. The chief justice noted that the ease of electronic access to court records for the public raises “serious concerns about how we balance legitimate privacy interests along with the open court principle.”

“Should all files be accessible to everyone on the net at all times? These are questions we need to consider, and we’ve set up a working group with the bar here in Alberta to look at these policy matters,” she added.

The other matter, she said, the court is looking at advancing over the next few months is pre-appeal mediation.

“We have offered pre-appeal mediation in Alberta for a number of years, but the uptake has been limited,” she said, adding that the court believes many appeals could benefit from pre-appeal mediation, especially family law cases or ones where the appeal is from an interlocutory step.

“We plan to implement a pilot project, hopefully this fall, to see if we can increase the number of counsel who wish to engage in pre-appeal mediation in front of the court,” she added.

Chief Justice Fraser stressed that her greatest concern is ensuring Alberta courts are “functioning and accessible during this pandemic.” She noted that the Ministry of Justice and the courts have agreed that setting up e-filing for the trial courts is the “number one priority for the justice digital program in this province.”

She acknowledged that she doesn’t know when the pandemic will end, but when it does, she would like to move to a completely electronic e-filing system. The chief justice noted that the Court of Appeal was able to transition to an electronic system because it was given its own budget to administer 25 years ago, which allowed court officials to “digitize our court.”

“We would also like to see a statutory framework adopted for an independent model of court administration and think the time has come for that to happen in this province,” she added.

Chief Justice Fraser stressed that even in virtual hearings, “advocacy still counts” and justice participants should pay attention to how they present themselves when appearing via videoconference.

“You have to remember that appearing by video is just like a performance in the courtroom. It is a performance, you are on, and you need to maintain that performance aspect of your appearance and really emphasize in the virtual hearings what makes you a good advocate in the real, physical world,” she added, noting the Court of Appeal has published a reference and etiquette guide for electronic hearings.

She also noted that in Alberta, the judges still don their gowns and request that counsel do as well.

“In my view, gowning reminds everybody of the gravitas and solemnity of the situation. It also reminds lawyers that they’re officers of the court and that what is about to take place is serious business,” she explained.

The chief justice stressed that it’s “more important in a virtual hearing to practise the basics of good oral advocacy, which is to be clear, be heard, be brief and be attentive to the panel.”

“I would put it this way, keep your arguments simple,” she added. “What you’re looking for is clarity of thought and clarity of diction in expressing them. So, try and distil your best arguments into bite-sized pieces and why your position should prevail, and watch and listen for feedback from the panel.”

Chief Justice Fraser then noted that the basics of good appellate advocacy is “about more than your oral argument.”

“The oral argument is not where your advocacy starts, it’s where it ends, and that’s why you have to look at what’s going on at the front end as counsel. Your appeal really starts when you’re reviewing the trial judge’s reasons and why they got it wrong or why they got it right,” she said, stressing that the importance of a factum “cannot be overstated.”

“In Alberta, we’ll have reviewed everything in your materials before we come into court and typically reached a preliminary view. So, while oral argument may persuade the panel to the contrary, it’s not easy to undo the consequences of a poorly written factum,” she said.

Chief Justice Fraser encouraged counsel to “zero-in on the key points because the old days of relating all the facts and going through the factum are long gone, along with the era of stony-faced silent judges.”

“You’re there for two reasons, and the first is to persuade, so you need to state simply where the trial judge erred, what relief you want and why what you’re asking for is the only proper result. You also have to know, and this to me is critical, where the sticking point is between you and your opponent. You have to identify and deal with it as effectively as possible and, folks, there’s always a sticking point,” she added, also encouraging counsel to be brief in their submissions.  

Chief Justice Fraser said the second part of oral argument is to answer questions from the court and she stressed, “because it does come up quite frequently” is the court is “not picking the best debater.”

“That is not our role. We’re not just there to deal with the actual case in front of us because the decisions we make bind everyone in the province. So, do not be surprised if we raise new issues. No one has a right to their own law. And please don’t be upset at questions; don’t assume that we’ve made up our minds. The Socratic method is alive and well at all courts of appeal,” she added.

The chief justice concluded by applauding counsel who have stepped up and embraced virtual hearings, acknowledging that videoconferencing is harder for all participants and it takes more concentration because “dialogue is less free flowing.”

“The better you are at your jobs, the better we are at ours,” she said, emphasizing that the common goal is to “improve the delivery of justice to Canadians.”

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