I have coined the somewhat inelegant phrase “dump truck advocacy” to describe trials where counsel annoyingly dump a quantity of jumbled evidence in my lap, with little effort having been made to particularize or research the issues. Whether this is because the client’s retainer has been exhausted (with no hope of replenishment) or whether the lawyer is lethargic, I do not know.
HAVE ORDER TO YOUR ARGUMENT
Your argument must have logical order, if you are to be persuasive. According to criminal lawyer Alan D. Gold, “it has been said that an English appellate judge once told counsel who was . . . in the midst of a jumbled submission with no apparent logic or direction, ‘[Counsel], could you not put your submissions in some order, even if only alphabetical?’ ”
THE WRITTEN WORD IS MORE EFFECTIVE
I am sorry to be the pin that pricks your thespian balloon, but oratory wins elections, not family trials. The written word reigns.
Put your position in writing for the court at the earliest opportunity. It is no longer true that a factum is merely “a prop for oral argument.”1 With the volume of cases now heard in our courts and the frequency with which decisions are reserved, the impact of oral submissions will fade with time. There is no good substitute for your own position on an issue and the surest way to that end is to put your position in writing and hand it up to the judge (through the courtroom registrar, of course).
I happen to believe that the only purpose served by oral argument is to respond to questions by the court arising from written argument.
Many counsel in family trials do not give an opening statement and those that do seem not to have devoted advance thought to the matter. Too often the opening is an opportunity wasted. It is a chance to identify the issues, briefly tell of the evidence to be adduced, put your position to the court and diffuse any weaknesses in your theory of the case. All of this should be done succinctly and without argument or overstatement.
Anything that counsel can do to lessen the work of the judge as a scribe is likely to be well-received. Therefore, reducing your opening to writing will be appreciated. Judges prefer to listen and think than to scribble. Of course, even if it is in writing an opening should still be delivered orally. Personally, I do not object to counsel reading his or her opening (this is much preferred to handing up a written opening and then delivering a different opening orally).
If the opening is provided to the judge in writing, a copy should also be given to opposing counsel.
An opening statement is just as valuable for the respondent as it is for the applicant and all of the above comments apply. However, counsel for a respondent has the additional consideration of whether to open immediately after the applicant or at the commencement of the case for the respondent. The decision is a tactical one and will depend on the nature of the case.
One part of a trial that should proceed smoothly and uneventfully is the examination-in-chief of a witness. Have your questions written out, every last one of them, so as to avoid this kind of exchange that once occurred in front of me:
- Counsel: Is Andrew your brother?
- Witness: Yes.
- Counsel: How long have you known him?
Examination-in-chief is the opportunity to ask perfect questions and, perfect questions are short questions.
With written questions you will avoid the embarrassment of not hearing what the witness is saying because you are too busy thinking of your next question.
Ask your questions slowly. Give the judge time to soak up the evidence. Judges prefer to follow than be dragged (when counsel question witnesses too quickly, I feel like a dog tied to the bumper of a speeding car).
No matter how many courtroom annoyances you successfully shed, and whatever the level of skill you attain, there will be days when the burdens of litigation seem crushing. When that happens, maintain perspective; there is a reason that the Nobel Prize does not have a lawyer category. And, as I sit in Family Court, with my cup of annoyances overflowing, I promise to bear in mind that neither is there a judge category.
About the Author
Justice Quinn is a judge of the Superior court of Justice, presiding over the Central South region.
1 J. Sopinka and M. Gelowitz, The Conduct of an Appeal (Markham: Butterworths, 1993)
This article is an excerpt from Justice Quinn’s 2012 paper, A Judge’s View: Things Lawyers do that Annoy Judges: Things they do that Impress Judges, presented at the 2012 OBA Institute Family Law program. View the full paper.