I read an interview this morning with a retiring judge of the Supreme Court of Canada. His name is Louis LeBel.
Justice LeBel was asked if he had any advice for lawyers preparing to appear before the Supreme Court. He said:
(a) know your case inside out,
(b) don’t read the argument,
(c) be ready to engage in a dialogue with the court, and don’t dodge questions. The court expects answers.
Like all the best advice, the above seems simple but is also profound.
Many lawyers appearing in court do not know the case inside out. The court is not impressed.
The court may be learned in the law, but the lawyers have lived with the case for months or even years, while the judges only know the materials they have looked at over the weeks preceding the hearing. This is the advocate’s opportunity to project to the court a sense of confidence that if they do what is being asked for on the appeal, they are on safe ground. There is no substitute for deep knowledge of the case, factual and legal both.
As to not reading out the argument, let’s face it, the court can read.
This leads to the third point, dialogue. Certainly at the Supreme Court level, and often at the Court of Appeal level, the issues raise heavy-duty legal implications which the court will want to explore. The court wants to test drive the implications of doing what the advocate is asking them to do.
So, fasten a seatbelt and take the court where it wants to go. If the lawyer likes the destination and has a well-considered position that it is a place where the law should set up shop, maybe the court will like the destination too.