Give the court credit for knowing a little law.
- The Honourable John I. Laskin, “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”
After you have framed your issues, the next part of the factum is your argument on each of those issue. Under the Rules of Civil Procedure, a factum needs to contain “concise argument with reference to the law and authorities relating to [each] issue”.[1]
The law and authorities may include any applicable and relevant constitutional provisions, legislation, and regulations, along with court and administrative tribunal decisions.
There is a balance that must be struck when determining how in-depth to go on particular legal issues. Appellate judges are, by their very nature, generalists. The Court of Appeal for Ontario typically hears more than 1,000 appeals each year in criminal, civil, and family law.[2] The Court must hear a constitutional law case about the division of powers between the federal and provincial government in the morning and an appeal from a manslaughter conviction in the afternoon.
Given the breadth of cases the court hears, counsel needs to educate and equip the court with both the factual and legal background necessary to resolve the case. However, as retired Justice John Laskin says, give the court credit for knowing a little law.[3] Some legal principles or cases are so well-established that the judges are intimately familiar with them and do not need lengthy quotes from those key cases. Court of Appeal judges could probably recite key passages from Vavilov[4] in their sleep!
What do you do when you find yourself in a position where the other side has cited a legal proposition incorrectly? For instance, they may have misstated the holding or a case or perhaps they relied upon a case that was subsequently reversed on appeal.
As counsel, you need to address this directly. Do so without aggression or sarcasm, but make it clear to the court why the other side was wrong on an important legal proposition. Be sure to include supporting reasons and references to justify your position.[5]
Be Specific
When discussing the law, make sure you focus on the key issues in the case. In other words, while a general statement of the law can be helpful as an introduction, make sure to focus on the specifics that are relevant to your case.
To use an example from John Laskin, if the case is about duties of a real estate agent, don’t just make a general statement that real estate agents have duties to their client.[6] Don’t waste precise time on duties real estate agents have that are not relevant to the issues in your case. Focus on the duties that are actually raised by your facts. If the case turns on the real estate agent’s duty to disclose information to the client, then focus on cases that talk about the contours of this duty.
Number of Cases
There is some difference of opinion on the appropriate number of cases to cite. Some lawyers will cite every case under the sun for a particular proposition whereas others will only cite the leading case.
Justice Laskin recommends that counsel limit the number of cases they include in their factums. He suggests that counsel can limit their authorities to the most recent case from either the Supreme Court or Court of Appeal, a case with very similar facts, a leading old case (if there is one), and case in which the point at issue is fully discussed by a well-respected judge.[7]
However, there are others who take a different view and recommend including more citations. Citing more cases shows the court that there is a weight of appellate authority in favour of the legal proposition. It also demonstrates to the court that you have conducted thorough research and can be relied upon as credible. By contrast, if you only cited a few of the leading cases on a point, the court may question why your research only revealed some of those cases.[8]
Whichever approach you take, you should at the very least cite the leading case and the most recent case by the court on the issue. If you can find a case with similar facts or which has a very thoughtful and thorough discussion of the point at issue, include that case as well.
Quotations
In setting out the law, you will likely want to include quotations from either cases or statutes.
If the issue in your appeal is about the interpretation of a particular statutory provision, set out the entire text of that provision early in the factum. The judges are going to be very interested in the particular wording of that provision. You may also want to include the French version (if there is one) and explain any differences between the English and French versions and how that might impact the interpretation of the provision.
When it comes to case law, be judicious in your use of quotations. A lengthy or block quotation can cause the reader’s eyes to glaze over. Keep the quotation short.
Make sure to introduce the quote by providing the context for why the quote matters.[9] This context will help the reader absorb the quote better.
[1] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 61.11(1)(d), 61.12(3)(c)(d).
[2] “About the Court”. Court of Appeal for Ontario. online: <https://www.ontariocourts.ca/coa/about-the-court>.
[3] “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”. The Honourable John. I. Laskin J.A.. The Advocates’ Society Journal (Summer 1999), at p. 11.
[4] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[5] “Some Factum Suggestions.” Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at p. 7.
[6] “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”. The Honourable John. I. Laskin J.A.. The Advocates’ Society Journal (Summer 1999), at p. 8.
[7] “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”. The Honourable John. I. Laskin J.A.. The Advocates’ Society Journal (Summer 1999), at pp. 11-12.
[8] “Preparing the Factum”. Kenneth L. Campbell. (July 2002), at pp. 14-15.
[9] “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums”. The Honourable John. I. Laskin J.A.. The Advocates’ Society Journal (Summer 1999), at p. 12.
