The most recent edition of the Criminal Lawyers Association Newsletter, For The Defence, is devoted to the subject of advocacy. In an introductory note, editor Breese Davies laments the absence of direct feedback from judges on how an advocate might have better performed in an individual case. What could they have done differently? How could they have been more persuasive? What worked or what didn’t? Ms. Davies decided that the next best thing was “to canvas judges from all levels of court in Ontario, and ask them to tell us how we are doing and what we could do better.” Here’s a selected sampling.
Justice Mary Lou Benotto, Court of Appeal for Ontario: “As defence counsel your first opportunity to connect with the trier of fact arises when you cross-examine Crown witnesses. It is a lost opportunity when defence counsel stands up, notes of the examination-in-chief in hand, and proceeds to re-ask the questions already asked in chief. Instead, ask yourself two questions: What did the witness say that hurt me? What can the witness say that will help me? The second question is often overlooked, especially if you cannot think of a way to undermine the testimony just given. This may be an opportunity to change the channel and address a new issue that may bring out a fact helpful to your case.”
Justice Gladys Pardu, Court of Appeal for Ontario (with tongue in cheek): “There is nothing so persuasive as a filibuster. Speak for as long as you can, so that the judge gets tired and gives in. Don’t worry if the judge stops taking notes. To keep your argument extra interesting, bounce around all over the place. When presenting oral argument, spend most of your time on background and unimportant matters. Leave the really key arguments to the last two minutes, so the judge will be sure not to forget them. Don’t worry about describing the facts and the law accurately. Surely the judge will have forgotten any misstatements by the next time you appear before him or her and will trust you completely.
Justice Ian MacDonell, Superior Court of Justice: “Counsel do not have to argue the case for the other side, or speak well of it, but taking unreasonable positions is generally a losing strategy. If there is a problem that is not going to go away, it may be far better to quickly and frankly acknowledge it. From the perspective of the court, candour can be very disarming.”
Justice Robert Maranger, Superior Court of Justice: “Judges talk about lawyers as much as lawyers talk about judges. Credibility before the courts is earned over time: it comes with a consistently honest approach to the conduct of a trial and your dealings with the courts. Once you are recognized as being a ‘straight shooter’ something intangible takes place where your ability to advocate a position is significantly enhanced.”
Justice Philip Downes, Ontario Court of Justice: “Too much time is wasted on non-contentious or marginal issues. Get to the point. Ask the question. Put the suggestion. Use aids that will help the trial judge understand your point and do it efficiently. Nothing makes you look more reasonable, prepared and in control than facilitating opposing counsel with their evidence. If a case goes over after the first day or two and the key evidence has been heard, why not prepare brief written submissions drafted with an eye to how a judge might use them as a basis for delivering the judgment you want to hear. They will be received eagerly and with gratitude. Once again, that helps put your client in the best possible position to succeed.”
Justice Mara Greene, Ontario Court of Justice: “Effective advocates use a judge’s questions as a way to gain insight into how the trial judge sees the case and then focusses the argument to address the concerns raised by the trial judge. The most effective lawyers are discriminatory in the cases they choose to cite and are able to articulate clearly why the legal principle arising from the cases provided should be applied to the case before the court. This often involves knowing not just the ratio of the case but also the facts supporting the decision.”
Justice David Paciocco, Ontario Court of Justice: “A witness may not be reliable because they do not remember accurately. Scour the file and the evidence in chief for any indicia that they may be confused on points. Those indicia will be there because of how human memory works. We take the impressions that the events leave on us and build a narrative around them, because the world we live in unfolds in complete narratives and that is how we communicate. Much of what we offer is speculative filler. Apply this common sense to help identify things about which the witness cannot be sure and challenge the witness when they claim memory on points that it is obvious they would not recall.”
Justice Esther Rosenberg, Ontario Court of Justice: “What I experience more often than not as a judge is what I would call ‘boilerplate’ submissions, which do little to enhance the argument. The Crown and the defence are equally guilty of this. What I routinely get are ‘buzz’ words or phrases tossed around such as ‘there’s no ring of truth’; the witnesses’ evidence is internally and externally inconsistent; the witness gave his evidence in a ‘forthright’ manner; or on all the evidence you must have a reasonable doubt (just because). What’s missing? The analysis! The whys! Tell me why there’s a reasonable doubt. Outline the inconsistencies. You may think certain things are obvious. I may agree with you. I may not. But, make it easier for me to understand the position you’re advocating. Connect the dots.”
The publication contains much else in the way of sage advice from our judiciary. Counsel owe a debt of gratitude to Ms. Davies and her colleagues for putting the edition together.