In the Summer 2015 edition of the Advocates’ Journal, editor Stephen Grant interviewed former Court of Appeal Justice Stephen Goudge. Justice Goudge had been a leading counsel working with the legendary Ian Scott before his appointment to the Court of Appeal for Ontario in 1996. During the interview, Justice Goudge offered helpful thoughts and insights on advocacy.
Q. What do you think made you enjoy advocacy, and what skills do you think you honed to become the advocate you became?
A. I enjoyed it because it seemed to me that advocacy is really where law is at. The courtroom is where law is largely made, and law does make a difference to the way we all live our lives, so being part of that I think is a huge challenge. I think a lot of the skill has to do with preparation and logical thinking, understanding the case and developing one’s own way of presenting it. One of the things that working for Ian quickly taught me was that I couldn’t emulate what he did. I had to figure out how to do it my own way. I would see him take a factum that I had spent hours over and turn it into something persuasive in a way that I only could imagine, and that was because he was doing it his way. But I do think there are some common skills, things like preparation, thinking through the issues, thinking through what you are going to be asked and the points that you want to try and make, and reflecting on this, as opposed to writing an argument and rehearsing it, if I can use that paradigm…
Q. What did you see from day to day that was especially effective? What technique or advocacy techniques were particularly persuasive to you?
A. Everyone has their own techniques, but I keep focusing on those who are really good at engaging in the dialogue. I think of an appeal as a dialogue between the three judges, who are in a way the seminar students, and the advocate, being the professor. That is not a great metaphor, but it’s not bad. The judges are interested in getting as good an understanding of the lawyer’s case as they can. That comes with the dialogue. For me the best part of the job was the hearing process, because it wasn’t just sitting and listening. An appeal at its best involves question and answer, and the questions are not designed to argue. They are designed to understand. So it is great being part of the questioning. The best advocates are the ones who understand their case and the issues well enough to be able to respond to questions – even if the questions don’t come inserted in red in the script that the lawyers developed the night before. That is why the kind of understanding I was talking about is really important, to be able to deal with that kind of forum. Sure, there are judges who sit there and don’t ask questions; but most of the judges, at least during the time I was there, were active in the sense of really wanting to question.
Q. Did you see any advocacy during that inquiry [the Smith inquiry into forensic pathology] that was particularly meaningful for you?
A. It was enormously important that we had fabulous advocates for everybody. It was a cast of all-star characters. We ran an inquiry that didn’t just do arguments on timelines but did evidence on timelines. I think the justice system will have to come to this in the next ten years. Timelines produce more focused argument. They force lawyers to think about what their priorities are, and lawyers are good at that when they have to do it. The same thing is true when counsel are calling evidence. If you have half a day to get your evidence-in-chief out, you will get out what matters. It is amazing how you can keep a cap on the length of time. And I had a cap. The provincial government said I had to do it by such and such a time, so I was driven to try to gather evidence in a way that had timelines attached to it. But I’m now modestly satisfied that you can do that in a way that does justice. You have to have some safety valves if somebody throws a curve halfway through their evidence, but by and large you can do it.