Much of value has been written on the subject of appellate advocacy. From our Court of Appeal, Justice Laskin has written three outstanding papers which, although not directly related to oral advocacy, have been of great benefit to practitioners: John I. Laskin “A View from the Other Side: what I would have done differently if I knew then what I know now” (1998), 17 Adv. Soc. J. No. 2, 16; “Forget the Windup and Make the Pitch: some suggestions for writing more persuasive factums” (1999), 18 Adv. Soc. J. No. 2, 3; “What Persuades (or, What’s going on Inside the Judge’s Mind)” (2004), 23 Adv. Soc. J. No. 1 , 4.
In the Sopinka and Dubin Lectures on advocacy, Justice Binnie provided helpful advice to advocates with characteristic wit and humour. Ian Binnie “A Survivor’s Guide to Advocacy in the Supreme Court of Canada” (1999), 18 Adv. Soc. J. No 2, 13; “In Praise of Oral Advocacy” (2003), 21 Adv. Soc. J. No. 4, 3.
My purpose is not to expand on these efforts, as I could not hope to improve on what has been said. Rather, I will highlight a few aspects of oral advocacy which merit emphasis: (1) the importance of context; (2) getting straight to the point; and (3) making it interesting.
Does Oral Advocacy Matter
First, a perennial question: Does oral advocacy matter at this level? Appellate court judges insist that it does, and perhaps the best evidence comes from two leading Supreme Court advocates who became judges of their nation’s highest court.
John Roberts, widely considered to be the leading U.S. Supreme Court advocate before his appointment, and Ian Binnie both say that oral argument does matter, and they both give the same reason: the Court conference that takes place after the conclusion of oral argument. The conference is the first opportunity the judges have to discuss their views of the case, and it is therefore only natural that oral arguments feature prominently in the discussion.
In the Sopinka lecture, Justice Binnie put it this way: “Once oral argument is heard, the court wants to capitalize on some of the adrenalin pumping around the courtroom to, as Justice Estey used to say, ‘get this baby airborne.’ The ‘sundown rule’ is a good thing from the lawyers’ perspective. It allows your advocacy real impact by giving you a voice in the decision-making process at the moment it counts most…From the judges’ perspective, the appeal has gone through a process of ever-increasing distillation and concentration. At the time of the initial preparation there is an enormous amount of paper flowing around. Bench memos are written, the facta are gone through, the leading cases are looked at and the judge comes to terms with what the appeal is all about. The oral hearing is still more focussed. When the argument moves back into the conference room it is distilled down to its most critical essentials. Thus, oral submissions should narrow, not broaden, the area of controversy.” A Survivor’s Guide to Advocacy in the Supreme Court of Canada, p. 14.
Chief Justice Roberts makes a similar point: “Oral argument matters, but not just because of what the lawyers have to say. It is the organizing point for the entire judicial process. The judges read the briefs, do the research, and talk to their law clerks to prepare for the argument. The voting conference is held right after the oral argument – immediately after it in the court of appeals, shortly after it in the Supreme Court. And without disputing in any way the dominance of the briefing in the decisional process, it is natural, with the voting coming so closely on the heels of oral argument, that the discussion at conference is going to focus on what took place at argument.” John G. Roberts, Jr. “Oral Advocacy and the Re-emergence of a Supreme Court Bar” (2005), Journal of Supreme Court History, 68, p. 70.
The Importance of Context
With these insights in mind, it can be seen that the advocate’s task is to focus the oral argument down to its narrowest point. In order to this effectively, however, the points you intend to make must be put into their proper context. This requires that counsel pay careful attention to the structure of the argument, with particular emphasis on the order in which the points are made. A few approaches are helpful:
(a) start by putting the issues into their broadest possible context. Give the Court a sense of the big questions involved in the appeal. Justice Laskin says: “in every appeal, there is an essential core of the case. In a recent speech, Madam Justice McLachlin called it the ‘controlling idea of an appeal’ or the ‘theme of an appeal.’ The controlling idea is more than a listing of the issues; it frames the debate in the courtroom. The skilful counsel has to look for that controlling idea.” John I. Laskin, A View From the Other Side, p. 20.
(b) provide the Court with a list of the undisputed facts from which the legal conclusions will naturally follow.
(c) put your opponent’s argument to the Court in the strongest possible terms before proceeding to knock it down.
Go for the Jugular
Supreme Court judges come into the hearing well prepared. Time limits of one hour for the parties and ten minutes for interveners, suggest that counsel should get straight to the points they wish to make. There is little to be gained, and much to lose, by general introductions to the facts, the parties, the issues or the court appealed from. It is far better to launch straight into the essential points and grab the attention of the Court from the outset. If nothing, else, this will help to assure that questions from the bench are on issues you most wish to discuss.
Make the Argument Interesting
By the time of oral argument, much time will have passed from the preparation of the factum. You will have had a chance to review the facta of the parties and interveners, and are in a position to distill the argument down to its essence. You are therefore well positioned to make the submissions interesting for the Court. Since the judges are fully aware of what’s in the factum, rehashing those arguments is hardly interesting. Far better to make your submissions in a way that differs from the factum, or to make different points than those contained in the factum.
The Need for Flexibility
Experienced advocates unanimously agree that thorough preparation is the key to effective advocacy. An important aspect of preparation involves anticipating the questions the Court is likely to ask. Knowing what you can concede, and how to respond to the inevitable probing of problem areas, suggests a need for flexibility and improvisation. No doubt counsel will have prepared, either verbatim or in point form, the points intended to be made. It is the rare appeal, however, in which those points will be delivered as expected. Being able to transition from the questions of the Court back into the flow of the argument may be the biggest challenge facing the oral advocate. Doing so smoothly will engender confidence in counsel. The more prepared you are, the easier this is to accomplish.
In an article written while in private practice, Chief Justice Roberts offered this helpful advice: “Try to react to what you can learn from questions, and adjust your approach accordingly. If you had planned on making points A, B, and C, in that order, but the judges jump in with questions on point C, by all means deal with that first – and not just to the extent necessary to answer the questions. Such flexibility will give a more natural flow to your argument, and facilitate a meaningful dialogue with the bench. Indeed, in rehearsing you should present your argument in every conceivable order – ABC, BCA, CAB, BAC, ACB, CBA- precisely so that you can readily adjust it in response to the order of the questioning.” John G. Roberts, Jr. “Thoughts on Presenting an Effective Oral Argument”, School Law in Review, 7-1 (1997).
The Importance of Focus
It is apparent from the literature and teachings of appellate Court judges that the keys to effective oral advocacy are preparation and focus. Arguing an appeal in the Supreme Court of Canada is not easy, however the rewards in intellectual stimulation are great. It would be difficult to improve on Justice Binnies’s description of the important task facing the oral advocate: “It is, I think, the highest role and function of the advocate to lift the court out of the humdrum detail of the law, to focus the appeal on some higher objective…The ability to distill the ultimate meaning of a case, to draw out the important lessons, to show that your cause is greater than its immediate facts, and, if possible, to occupy the moral high ground; all of this, in my view, is what oral advocacy at its highest level is all about.” In Praise of Oral Advocacy, pp. 16-17.