ADVOCACY: CHOOSE YOUR ARGUMENTS

By Doug Mitchell

Litigation being unpredictable, and lawyers being conservative, many lawyers are unwilling to not present every argument imaginable (and sometimes unimaginable) in trying to ensure that their client has every chance to win.  After all, who knows which one might resonate with the judge or judges hearing the case?  This is particularly the case where the lawyer files an appeal from a judgment where the lawyer feels that the judge in first instance got every single point wrong. (Often our reaction when we lose)

In spite of this, judges regularly tell lawyers that effective advocacy is about choosing the best arguments and making sure that these points are fully argued. Otherwise, the court is deprived of the benefits of advocacy on your client’s behalf, and is simply left with what seems to be a shopping list of undeveloped arguments to try and understand, accompanied by a sense that the counsel is desperate and has no real confidence in their position.

While there may be an attraction to ensuring that every argument is made, the reality is that with increased demands from the judicial system that it become more efficient, time and space are not infinite, nor is the attention span of the judges.  This necessarily requires choosing some arguments and abandoning others.  Ultimately this does in fact make for better advocacy.

A 2012 decision of the Manitoba Court of Appeal in R. v. Henderson (W.E.), 2012 MBCA 93 makes the point effectively, in the following terms:

47. This trial took 32 court days (13 pre-trial motions days and 19 actual trial days) in the Court of Queen’s Bench, spanning a 22-month period.  The first pre-trial motion was heard on January 14, 2008.  The judge delivered his last pre-trial ruling on October 27, 2008.  The jury trial commenced on October 19, 2009, and ended with the jury verdict on November 19, 2009.  During these proceedings, the judge was called upon to make at least 13 rulings on substantive issues.  This included four pre-trial motions dealing with the voluntariness of the accused’s statement, the validity of the search and seizure, the suitability of the photo pack and whether to allow an expert to testify on the frailties of eyewitness identification.  The other nine rulings occurred during the trial proper.

48. The accused has raised no less than 23 grounds of appeal.  In essence, he has appealed all of the above decisions which were not favourable to him.  As with all appeals, there are significant restrictions imposed on the parties in terms of the length of the factum.  To circumvent these restrictions, counsel for the accused inserted a phrase numerous times in his factum: for example, at ground 2: “The Appellant relies on his trial submission (Volume 9 p. 3 - 40, 45 - 80, Volume 10 p. 12 - 72) and case law referred to at that time.”  He then listed 25 cases, with no mention of the particular paragraph or paragraphs he relies on.  Similar wording can be found with respect to nine other grounds.  By proceeding in this fashion, counsel is in effect doing indirectly what he is not allowed to do directly: greatly exceeding the allowable pages for written argument by appended submissions.  Need we remind that the Court of Appeal Rules clearly state at Rule 29 that the factum will consist of four parts, each setting out “a concise overview,” “a concise summary of the facts,” “a concise statement identifying the issues in the appeal and the appellant’s position on each issue,” and “a concise statement of the argument … with particular reference to … the tab number and page in the case book for the authorities relied on” (emphasis added).  What counsel for the accused presented was anything but concise.  Not only did it not conform to our rules, it was inappropriate and not particularly helpful. 

49. Moreover, the practical effect of raising numerous grounds of appeal will generally result in less expansive arguments (both oral and written) and will almost always deprive the court of the benefit of a more comprehensive argument on the significant issues.  Since the Crown is required to abide by the same restrictions, the court will also almost always of necessity receive from it a less developed argument than would otherwise be the case had fewer grounds been argued by the accused.

50. Courts expect counsel to be of assistance in the appellate process.  They expect counsel not to waste the court’s valuable resources by simply dumping the appeal on the court’s lap.  Counsel are expected to have sufficient confidence to prioritize their arguments, to separate the wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review.  Not only is this in the best interests of their clients; it is in the best interests of the administration of justice. 

51. While there is no ceiling on the number of grounds an appellant may raise, appellate courts, when faced with a shotgun approach to appellate advocacy, must still focus on those issues which have real substance.  In doing so, a court will ordinarily be assisted by an appellant’s views as to the strength of any particular issue.  This strength can sometimes be revealed in an appellant’s factum by the extent of the written submission on any particular ground.  Unfortunately that is not apparent here.  The accused’s factum essentially apportions each ground equally: for the most part a two to three paragraph allocation to each ground.

52. The accused did however elaborate his arguments in four areas.  They relate to the judge’s refusal to invalidate a search warrant, to declare a mistrial on a conflict of interest, to instruct on certain issues and to grant a directed verdict on first degree murder.

53. At the hearing, counsel for the accused was also invited to argue only those grounds which, in his view, had the most merit.  Counsel chose to argue 13 grounds.

54. In my view, out of the accused’s avalanche of grounds, there are only five areas (which include the four issues mentioned above) that warrant consideration by this court.

Anyone surprised the appeal was dismissed?