Advancing Your Appellate Advocacy

Gain insight and engage with members of the judiciary and experienced practitioners on how to strengthen your written and oral appellate submissions in order to make them more effective and persuasive.

Professionalism

Civility in the Courtroom

Full disclosure obligations in the context of appellate submissions: Ethical obligations that differ from trial/lower court appearances and the fact that appellate courts do not always have the full record to consider; how to decide what to include and what not to include without engaging in sharp practice. Raising new issues and arguments on appeal: Ethical issues that arise when new issues and arguments are introduced at the appellate court, and strategies for doing so that will not inhibit your ability to effectively represent your client. Dealing with recent legal developments: The ethics of keeping the appellate court apprised of new legal developments. What happens when you don’t reference a new case that adversely impacts your client? What happens when the Court is aware of the case and you are too but don’t mention it?

Substantive

Launching an Appeal

(i) Identifying the grounds of appeal and being selective about your grounds of appeal

(ii) Notice of Appeal

• The ongoing importance of your notice of appeal (and when you might think about amending it etc.)
• What needs to be contained in the notice of appeal (including the jurisdictional statement), and
• the challenges of acting on an appeal when you were not trial or motion counsel, getting input from others, etc

(iii) Adequacy of materials required in fact-based appeals/JRs

Written Advocacy in Factum

(i) Writing a persuasive overview

• Creating clarity in your written argument from start to finish – what works and what doesn’t work?
• The importance of being succinct
• A judge’s work load/cognitive burden – “here’s what the ‘judges’ are not telling you. They have a lot on their plate so here’s some advice to make things better for them/how to simplify issues.”

(ii) How best to argue the facts in your factum (5 minutes)

• Include special advice here for respondents – eg. Avoiding a “pleading” type of approach to the facts (deny para. X, admit para. Y); dealing with the appellant’s “spin” on the facts, and whether and when it’s appropriate to set out the respondent’s full recitation of the facts.

(iii) Clear definition of the issues to be argued (5 minutes)

(iv) Arguing the law in your factum (20 minutes)

• Know the law: how much case law is enough authority? 2 minutes
• Working your argument into the law 7 minutes
• Courtesy and civility in written argument in references to other counsel/party in the proceedings, as well as the court below. 4 minutes
• Advice on “style” including choice of words, avoiding legalese; overall structure and formatting – size of font, number of pages, etc. and especially the function of the factum as a tool of persuasion. 5 minutes
• Point out rules 61.11 and 61.12 that set out what is to be contained in appellants and respondents facta, and comment on whether judges expect this to be followed literally and on what appellate judges consider to be best practices for structure of a factum. 2 minutes

Oral Advocacy

(i) The art of persuasion: What are some tips for an excellent opening in Court?

(ii) How much time should be spent on the facts in oral argument?

(iii) Determining the structure of oral argument. Some things to consider:

• If the case is documentary or dependent upon the evidence, is it useful to start with the documents or evidence?
• If the case involves an error of law or some significant error in the judgment below, structure the argument around the legal error?
• Hybrid approach of the previous two approaches?

(iv) How to take cues from the Bench?

• Dealing with the challenge of time limits for oral argument
• Identifying and responding to the different types of questions you might get from the Bench, and not jumping to the conclusion that every question is a challenge.

(v) Best approach to answer questions: Answer as they arise vs. “I’ll come to that

point later”

(vi) When should counsel Reply?

(vii) What are some differences, if any, when making submissions in the Div. Ct. vs. Court of Appeal vs. administrative tribunal? (All panel members)

• A word on individual style – the panel can contrast appellate and trial Advocacy

Electronic Appeals

• Provide advice for electronic appeals