Becoming an Effective Advocate: Reflections from RSJ Thomas

I recently had the opportunity to attend the 11th Annual Middlesex Law Association Mentoring Dinner. The dinner was framed around the theme of “What I didn’t learn in law school about becoming an effective advocate” and Regional Senior Justice, Southwest Region, Bruce Thomas provided an excellent keynote address to the attendees on that theme. Although most of the advice that RSJ Thomas shared was not new to me, having heard much of the same advice to young advocates during my time as a law clerk at the Court of Appeal for Ontario and from various formal and informal mentors in my practice, I figure there must be some truth in it if it bears repeating so often. So to that effect, I thought I might share some of the highlights from my notes of RSJ Thomas’s remarks here, in hopes that others may find truth and wisdom in them and benefit from this advice on being an effective advocate as well.¹

The Regional Senior Justice’s remarks were organized around a single, compelling theme: “If you want to become an effective advocate, then you have to take every opportunity you can to advocate.” Whether through written submissions or oral advocacy, RSJ Thomas emphasized the importance for young advocates especially to test themselves and hone their craft in any forum in which they find themselves: settlement meetings, mediations, examinations for discovery, in Court on motions or at trial, at learn by doing Continuing Professional Development programs, at conferences, board meetings, or city council meetings, the opportunities for developing your advocacy are endless.

With that in mind, RSJ Thomas provided, among others, the following tips and tricks for becoming an effective advocate.

On Oral Advocacy

• Remember Supreme Court of Canada Justice Suzanne Côté’s “Three Fs” of excellent oral advocacy:

1.  Fill – Fill your mind with every intimate detail of your case. The more thoroughly you know the facts and the applicable law, the more persuasively you will be able to advocate.

2. Focus – Focus on the crucial issues in the case. Your goal is to make a complex case simple, not the opposite. Refine your argument to the pertinent points; do not advance 10 arguments when three will suffice.

3. Flex – Flex with the ebbs and flows of the hearing. Do not allow yourself to become so attached to a scripted argument that you are unable to adapt to the changing dynamics of a hearing or questioning from the Bench.

• Speaking of questioning from the Bench – actually listen to the questions posed by decision-makers. They are asking questions for specific reasons, primarily because they genuinely need help understanding a particular issue. So help them as much as you can and remember they are (mostly) not trying to trick or trap you.
• Engage with the difficult issues – this is where excellent advocates separate themselves from the crowd. It is on the difficult issues that cases, whether at a trial, a hearing, or a motion, are won and lost; but you won’t win if you don’t engage. To this end, watch the judge to make sure she is following. And remember that you are an advocate; you are there to advance your client’s position, so the decision-maker needs to understand, but the decision-maker might not necessarily agree. Don’t walk away from your argument just because it is difficult, but don’t lose your point just to try and make the judge happy either.
• On this point, if you need to ask judge for time to figure out a point that came as a surprise, ask. It is better to give the judge the right answer than to make something up or give no answer at all. There is always help around to sort yourself out, and the court will be grateful for the assistance more often than not.
• Be engaged and enthusiastic – Find a way to get captured by the argument, and capture the judge. You can’t do this by simply reciting the materials. Remember the well-known aphorism of Justice John B. Laskin: “forget the wind up and make the pitch!” Get to the point, make it punchy, and find the compelling theme of the argument to steer that pitch over the plate.
• That said, be mindful of the record – You need to make sure the record reflects your client’s position on the point. If it becomes necessary to appeal, you want to have everything on the record that you need to support an appeal.
• Practically, be aware of your pace, volume, and tone. Be mindful of physical and verbal ticks. Judges see everything, and it all impacts their perception of the advocate and the persuasiveness of the argument.
• On that note, be selective with what passages from law or evidence you read; and if you do read, do so slowly and carefully. We tend to race through long passages, but judges want to fully grasp the argument and the point: If it’s worth reading, it’s worth the judge understanding.
• Finally, learn to lose with grace² - Don’t cry, or get angry, or take it personally; all of these things happen, none of them help. You are a professional. You are an advocate. Appeal or move on.

On Written Advocacy

• Although discussions of excellent advocacy conjure up images of the tenacious trial lawyer cross-examining a witness, or the professorial appellate advocate persuading a panel of judges to a difficult position, I’ve heard time and again that the importance of written advocacy cannot be overstated.³ RSJ Thomas reminded the audience that no matter how compelling your oral submissions, your written materials – factums in particular – are decision-makers first introduction to your case and the last thing they read as they are working on their decision.
• With that in mind, RSJ Thomas offered three simple observations regarding well-crafted written arguments. First, write in a point-first style. Not only is it great advocacy, it is also an art form to seamlessly and persuasively condense sometimes immense volumes of materials into four simple steps: (i) state the point you are making or your position on the issue, (ii) identify the rules, legal tests, and principles that govern the determination of that particular issue, (iii) apply the facts and evidence which satisfy those governing principles, and (iv) concisely conclude the point without belabouring it.
• Second, and related, make your materials tight and adopt a coherent and consistent structure. We’ve all heard many times how important a roadmap of the arguments is as an overview, but often this is overlooked or omitted. Set one out and follow it. And don’t include reference to every case – avoid the temptation to think “if one case on point is good, five must be better”. The same goes for exhibits attached to affidavits: even though judges read for a living, they don’t get paid by the page, so don’t include it if it’s not necessary.
• Third, the real skill is in editing. There are countless writing tropes out there about the importance of editing, and they are all true. Rather than draw one in here, I’ll stick to RSJ Thomas’s suggestions: edit and refine your materials to the key points and strongest arguments – again, avoid the temptation of “why stop at three submissions when I have ten?”; and don’t be careless with the presentation and polish – grammar and spelling are vital to the flow and persuasiveness of a written argument.

On Professionalism

• Finally, I’ll pass on a few short points on professionalism shared by RSJ Thomas.⁴ Meet your deadlines and be on time for court. Both of these habits reflects your commitment to your practice, your profession, and your reputation – which, as we’ve all heard so many times, is everything in this profession. Judges notice both, and it informs the reputation and confidence judges hold in you.
• So does being nice to court staff. I could go on with horror stories about treatment of court staff by counsel tantamount to conduct unbecoming. But it doesn’t have to rise to that level of mistreatment to tarnish your reputation with the Bench (or the Bar). Be nice; not only is it good for your career, it’s just the right thing to do.
• As counsel, do not embellish or mislead, be honest. No case and no client is worth sacrificing reputation by trying to slide a known lie or half-truth past the court. Don’t confuse being a zealous advocate with being rude or deceitful. It doesn’t help you and it doesn’t help your client. Judges talk, a lot. And they know who we are, so be careful with what you think you might get away with. They say a reputation takes a lifetime to build, but only a second to destroy.

Each of these points boils down to a simple admonition by RSJ Thomas: You are an officer of the court, don’t lose sight of that. And with that, RSJ Thomas pointed to a popular prayer for lawyers, and one of my favourites since I joined the profession penned by St. Thomas More. It’s called The Lawyers Prayer: “Pray that for the greater glory of God and in pursuit of His justice, I may be able in argument, accurate in analysis, strict in study, correct in conclusion, candid with clients, honest with adversaries, faithful in all details to the faith. Sit with me at my desk and listen with me to my client's tales. Read with me in my library and stand beside me in court so that today I shall not, to win a point, lose my soul.”

I’ll close, then, by stating: employ each of these tips and tricks to the best of your abilities, but never lose your soul along the way.

This article originally appeared in The Middlesex Law Association's Snail.

---

¹Summarized and reproduced with permission of RSJ Thomas, March 22, 2018.

² Not Justice A.D. Grace, although you may need to learn to lose with His Honour, too if you’re in the Southwest Region.

³To this point I can personally attest, even if just from my short year at the Court of Appeal reading dozens of facta every week to assist the judges with their pre-hearing preparations.

⁴I don’t think reading this article will count towards Law Society professionalism hours, but you may want to check with the editor