December 2nd, 2021
The recent notice from our two Chief Justices, Strathy and Fairburn, about the function of more junior counsel in their court, strikes a note with me.
It has been my practice, and that of many appellate counsel of my vintage and younger, to share the argument in appeals to Ontario Court of Appeal and even the Supreme Court of Canada with more junior partners and associates who were involved in the preparation of the factum and the oral argument.
In my own case, it has been some time since I prepared an appeal factum from scratch. But I review and edit the drafts prepared by those I work with and discuss the evolution of the final version with them, as I do my drafts of the oral argument that I intend to present.
It is a rare case in the Court of Appeal where there is not a discrete issue for junior counsel to prepare and argue. Occasionally it is the costs issue, but more often it is a substantive one. It is problematic in the Supreme Court of Canada, given the one hour time limit and the format of answering questions from the bench, rather than presentation of an argument, but there are occasions even there that there is a logical division.
Involving more junior counsel in oral argument is not only good for the development of their oral argument skills, it is an incentive for them to put their best efforts in the development of the argument. As well, it fosters morale and team building.
In my own case, given my longevity at the bar, some of what I currently do with my partners on their appeals is to assist in the drafting of the factum and occasionally share a small part of the oral argument. Turnabout is fair play!