New lawyers navigating their first appeal to the Court of Appeal for Ontario (OCA) are probably doubly stressed, particularly if they are working alone, and especially where the appeal is complicated by a motion to quash (and other motions!).
For those who are new to the process, I have three tips. First, purchase or borrow a copy of Sopinka and Gelowtiz’s Conduct of an Appeal. I cannot tell you how many times I have read this book and turned to it in times of need. Second, to sharpen your writing before you write your factum, read Forget the Wind-Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums by The Honourable John I. Laskin. Third, when making oral submissions, refer to judges as “Justice LAST NAME” as opposed to “Your Honour.”
Aside from my simple tips, below is a fantastic ensemble of gems from the gurus of appellate advocacy.
Ewa Krajewska of Heinen Hutchinson recommends:
- Remember that this is an appeal—not a re-trial. The starting point is the trial or application judge’s decision and reasons. The application judge must have gotten the law correct but will receive deference on the findings of fact. If you are the appellant, did the trial judge get the law wrong? Are the findings of fact supported by the record? If you are the respondent, demonstrate that the trial judge applied the law correctly and the findings of fact are supported by the record.
- Choose your points carefully. If you are the appellant, do not raise myriads of grounds of appeal. For your factum, carefully organize the points on appeal. Distill them to two or three grounds. You undercut your credibility if you raise ten.
- Consult, talk, get feedback. If you were the lawyer on the application or trial, it’s sometimes hard to do your own appeal. You are close to the win or loss. It has also had an emotional effect on you. Show the decision to your colleagues. Talk through your points and grievances. Get others’ views. And then, when you are getting ready for the appeal, don’t be shy to do some practice runs. The best and most senior lawyers do practice runs. That’s how they get so good!
Tom Curry’s (managing partner at Lenczner Slaght) tips for appellate advocacy:
- As counsel for the appellant, limit your focus to no more than three grounds of appeal. Rarely will you need more, and it will help you identify only the reversible errors.
- Limit (or eliminate!) the use of adjectives and adverbs in the Court of Appeal, whether in written or oral advocacy.
- Whether for the appellant or respondent, choose the sequence of the issues to be argued carefully. Appeals are like powered flight — you need a safe take-off, effective level flight to your destination, and a safe landing. If you start off on the wrong argument, your appeal may crash before you are able to get it off the ground.
Chris Sewrattan, a criminal appeals lawyer, offers the following:
- Don't say that your case is “on all fours” with an authority. It never is.
- During oral argument, take the Court through the passages you want them to see. Don't feel so rushed that you just mention the citation.
- Note the weakest points in your case on a separate sheet of paper when writing your appellant/applicant factum. Write out your general response to those weaknesses, too. This will save time the respondent provides their factum months later and you are struck by their counterarguments.
Margaret Waddell’s (of Waddell Phillips Barristers ) tips for success:
- Be sure to have a very strong knowledge of all the facts and where to find them in the record. The judges want references to specific evidence and where to find it in the record, not vague generalities about what the evidence was. And always assume that they know the record better than you do. It’s likely true.
- A compelling factum on an appeal or a motion in an appeal is crucial. Do not leave drafting to the last minute. Leave time to put the draft away and come back to it fresh after a few days, and remember your audience — you are trying to convince the panel that your position on the appeal should prevail, not to reargue the client’s case from below.
- The factum’s overview should explain to the panel why your client should win in under three pages. It should hit the highlights and tell a story, and it should not be pedantic. Engage the judges from the start.
Appeal guru Andrew Bernstein of Torys says:
- Pick your grounds of appeal very carefully. It’s fine to draft a “kitchen sink” notice of appeal because you might not have had time to completely think it through before the deadline. But then really prune your arguments so that when it comes time to write your factum you are focusing on your top three.
- Re-read Housen v. Nikolaisen. The Court of Appeal wants to know what is the error of law or the palpable and overriding error of fact. Showing up and asking the court for a “do-over” is not going to work.
- Do a moot! Get two or three colleagues or friends to be your “panel” and grill you. You will be much better prepared for oral argument.
Margaret Bojanowska, a criminal trial and appeal lawyer, writes:
- Narrow down your grounds of appeal. Young counsel (myself included when I first started doing appellate work) have a tendency to be outraged on their client's behalf and want to raise every possible issue no matter how small. Successful appeal counsel put a lot of work into narrowing down and really thinking about which grounds of appeal to advance in a particular case. Not every case is an unreasonable verdict just because you disagree with the result. You do not need to raise ten grounds of appeal to be successful. One ground of appeal, properly flushed out and supported by the record, is all that you need.
- Know your appeal record better than anyone else in Court. When getting ready for the oral argument you must reserve time for proper preparation. Glancing over your factum the night before the appeal will not suffice. You must know the transcripts, appeal book, and law better than everyone else. You have to be able to take the judge to specific references in the record to effectively make your point. When the Court realizes you know the file, you will have earned their trust and they will be more willing to listen to your arguments.
- Don't be afraid of questions from the Panel. I remember dreading questions from the justices when I first started out and recall being relieved if the panel was quiet during my argument and asked no questions. Hardly ever is an appeal a slam dunk. Questions from the panel are invaluable and shed light on what is troubling them. Questions from the panel allow you to really address their concerns and go off your oral argument script to get to the core of the issues. I urge young counsel to welcome questions from the panel and to listen carefully even to questions asked of the opposing side.
Ewa, Tom, Chris, Margaret Waddell, Andrew, and Margaret Bojanowska, thank you for sharing your secrets for success at the OCA. This article would not have happened, or have been so great, without your help.
About the author
Nancy Sarmento Barkhordari is a litigation lawyer at Gosai Law. Nancy’s practice is focused on tort litigation with a special interest in crown liability and appeals.
This article was originally published on the OBA Young Lawyers Division articles page.