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Andrew J. Roman*

In his over thirty years of practice as an advocate before courts, boards, commissions, and tribunals across Canada, Andrew J. Roman, a Partner in the Toronto office of Miller Thomson LLP, prepared these observations for an in-house seminar.  While humorous, they also provide real and practical advice.

Introduction

These laws are partly facetious, but their slightly dramatic excesses have a purpose: to highlight a basic truth about advocacy.

Law 1

There is no such thing as “the law.” There are only winning and losing arguments. Neither a case nor a statute is “the law,” merely some support for a legal argument. Legal arguments are not a case strategy, merely the potential elements of a strategy. Until you have a clear strategy, you cannot know which legal arguments, supported by which cases or statutes, you will need.

Law 2

The “reasons for decision” are not the real reasons. They are the public explanation for an intuitive result. Rather than the reasons explaining the result, the result explains the reasons. That is why presenting one good argument based on sound principles is worth more than a dozen Supreme Court of Canada cases cited out of context.

Law 3

There are no binding precedents. The judge’s preferred outcome determines which precedent the judge will follow. A judge whose sympathy you have gained can distinguish any case your opponent cites. A judge whose sympathy your opponent has gained can find any case you distinguish to be binding.

Law 4

There are no hopeless cases. There are only lawyers with communication challenges. Meet the challenges and you will have a winnable case.

Law 5

No case has a predictable outcome. There are only lawyers willing to predict the results of their advocacy.

Law 6

There are no complex cases. There are only lawyers who have failed to simplify their arguments.

Law 7

No judge is purely rational. A lawyer, who appeals only to the head and ignores the heart, may well receive a heartless decision.

Law 8

There is no such thing as an “objective” test. The court merely replaces the parties’ subjectivity with its own. A reasonable person is one the judge finds reasonable. Due diligence is what the judge would do in the position of the accused if time and money were no object. A patently unreasonable decision is one that is so unreasonable that even the judge can see its unreasonableness.

Law 9

There is no such thing as a perfect argument. That is no reason to stop striving for perfection. An argument that is merely “good enough” is not good enough.

Law 10

Effective advocacy, whether written or oral, never goes out of fashion. Be more creative and you will be more persuasive.

* Andrew J. Roman is a Partner with Miller Thomson LLP.  He can be reached at (416) 595-8604 and aroman@millerthomson.com.  Or, to read more about Andrew and his practice, visit www.millerthomson.com.