Everyone’s first court appearance can be an intimidating experience. Appearing in front of a busy judge in a packed courtroom can test your mettle in ways you never imagined. Especially for younger lawyers, who are building their reputations and just want to be seen as professional and diligent, the stakes are high. No one wants to make a rookie mistake and lose face with your colleagues and the court.
For most of us, that first experience comes in a trial courtroom before a single judge. But the pressures – and opportunities for errors – are even greater when you argue your first appeal. As an Assistant Crown Attorney for nearly a decade, I prosecuted dozens of cases at the trial level each year. After enough experience, you start to feel confident. So when I recently was given the opportunity to switch offices and try conducting appeals instead, I jumped at the chance.
The opportunity would be great. And how much different could it really be?
Believe me - more different than you can possibly imagine.
If you are lucky enough to get the privilege of appearing before the Court of Appeal, this article contains my top five tips for arguing your first appeal.
1. An appeal is NOT a re-trial or re-hearing of the evidence
This is the most common misperception about the appellate process I continue to see. That an appeal is somehow, someway, actually a chance to re-open the facts developed at trial. It is not. If you remember one thing from this article, remember this: an appeal and a trial have virtually nothing in common.
The “facts” were already decided at the trial level. Unless you are challenging the basis upon which those facts could have been found (see my next point), you are stuck with them. You cannot request that the appellate court make new or different findings of fact. Almost without exception, you must concentrate your appeal on a specific error of law made by the trial court, and why that error was significant and affected the outcome in your case.
2. Appreciate the standard of review
Many of us didn’t hear much about this concept in law school outside of administrative law. But it is absolutely crucial to conducting an appeal. Many matters that are appealed turn decisively on the standard of review to be applied. Do not assume you know what it is. Review the statute that applies to your case and any prior jurisprudence on the matter.
For example, in criminal matters, findings of fact cannot be challenged on appeal absent “palpable and overriding error.” Findings about the credibility and reliability of witnesses are also generally subject to great deference to the trial court. On the other hand, questions of law are subject to a correctness standard. But sometimes the line that divides these two areas is not so clear.
If the judges on the Court of Appeal ask you, “Isn’t that decision subject to defence on appeal?” you should take a deep breath and rethink your approach. Can your argument really be persuasive on appeal, in light of the standard of review that applies?
3. Remember the Rules. They matter.
The Court of Appeal has rules and practice directions that apply to criminal, civil and family matters. They are helpfully summarized on the Court’s website here. Know them. Follow them. Take them seriously. Because the Court will.
Filing a notice of appeal simply begins the process. Ensuring your notice of appeal is filed within the appropriate time period – e.g. for criminal matters, generally thirty days within the final judgment or decision - is just the first step. After that, as counsel for the appellant, you will be expected to take steps to perfect your appeal within a proscribed timeline. This will include ordering transcripts, writing your factum, and preparing other materials such as the appeal book.
Failure to follow these rules may have your tentative appeal appear on the dreaded “purge court” list where any lack of due diligence may result in your client’s matter meeting a swift and untimely end.
4. Know the trial record inside and out
It seems trite, but remember that appeals take place because a trial already happened. At a trial you have seen and heard the witnesses in the case live and in person. On appeal, it is instead all about the transcripts. They may be very lengthy. I have had trial transcripts number into the hundreds of pages. In lengthier trials, it is not impossible to have to deal with potentially thousands of pages.
During my first appeal I simply expected any questions from the court to be directed to the lawyers about the legal principles were thought were central to the case. But merely five minutes into his presentation counsel for the appellant was peppered by questions about what pages in the transcripts provided evidence to support his position. A slight delay by counsel in finding the right page numbers felt like an eternity. The argument he hoped to make was now entirely off the rails because he couldn’t remember on what page the witness had made a certain statement.
Do not assume what you think will matter on appeal is what the court will think matters. You must be prepared to point the justices to the areas in the transcripts quickly and accurately. If you can do this, your presentation will go much smoother.
5. Be powerful and persuasive. But also be succinct.
Unlike at a trial, you are only afforded so much time to argue an appeal. Do not for a moment think if you run out of time the judges will let you keep going. Indeed, I would assume the opposite. A request for more time may very well be rejected.
So make every second count. You should be able to explain quickly and succinctly why this case should be heard and what remedy you are seeking. Point to the error at the trial level and why it justifies appellate intervention. Structure your arguments around the time you are allotted. It is all you get.
And don’t think you need to use all your time just because you can. A pithy yet persuasive argument can seem all the more powerful when you finish early. It suggests confidence and in my limited experience, is far more impressive to everyone than the lawyer who runs the clock out and is then curtly informed, “Sorry counsel, your time is up.”
About the Author
Brock Jones, Crown Counsel, Crown Law Office – Criminal