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Appellate Advocacy: The Next Generation

2 minute read

The recent statement from the Chief Justice of Ontario and the Associate Chief Justice of Ontario welcoming submissions from counsel at all stages of their careers has received many well deserved accolades.

In my experience, our courts - including our Court of Appeal - have consistently welcomed the participation of younger and less experienced counsel in making submissions. This statement reinforces a long standing tradition and practice from which many advocates, including myself, have benefitted.

My mentor Earl Cherniak always gave me an issue to argue on his appeals, and he has followed this practice with every lawyer who has had the good fortune to work with him. Earl made it known to the court early in his submissions that I would be addressing a specific issue, signaling to the court his intentions.  In some of my first appeals, the issue was of little importance to the case and often was not even mentioned in the court’s decision. Nevertheless, I was given the opportunity to get up on my feet and obtain valuable experience in developing my appellate advocacy skills.

Over time, the importance of the issue increased as did the amount of time allocated for my argument. Earl would spend time with me before the argument to make sure I was comfortable and ready. After the appeal was over there was always a debriefing with words of encouragement and helpful constructive comments.

Lawyers assisting senior counsel should be involved at all stages of the appeal. They are important members of the team and should be involved in developing strategy, drafting the factum, and making oral submissions. Almost every appeal has some issue that can be argued by a less experienced counsel. In my experience, the Court of Appeal has been very receptive to young counsel, including patiently allowing them to make oral submissions even if, as happened on a recent appeal, counsel needed a few extra minutes beyond the allotted time to complete their submission.

Hopefully, this statement from the leadership of our Court of Appeal will be welcomed and acted upon by senior counsel, with the effect of providing a more diverse group of counsel with the opportunity to obtain the necessary skills and experience. As noted in the statement, this will contribute to the vibrancy of the Court of Appeal as a public institution and increase public confidence in the justice system.

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Peter W. Kryworuk

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