Oral Argument in the Court of Appeal of Alberta Prepared For: Legal Education Society of Alberta Court of Appeal Practice
Presented by: Frank Foran QC Borden Ladner Gervais LLP Calgary, Alberta
For presentation in: Edmonton, Alberta – October 8, 2015 Calgary, Alberta – October 14, 2015 ORAL ARGUMENT IN THE COURT OF APPEAL OF ALBERTA FRANK R. FORAN, Q.C.1
INTRODUCTION
I have been asked to address the topic of oral argument in the Court of Appeal of Alberta. There is, perhaps surprisingly, a significant number of recent articles and lectures concerning how to prepare for and orally argue appeals. Some of this advice comes from eminent jurists, some from experienced litigation counsel. 2
The advice in these articles and lectures accords with my experience. There is no manual on how to assemble and advance a winning argument. There is no single right way to argue an appeal but there are plenty of wrong ones.3 Oral advocacy is not a science. While, of course, it requires a comprehensive understanding of what has occurred to date (the evidence, facts found at trial, and the law), a successful argument is not something that can be robotically engineered and presented. Fundamentally, it is an art form in which an advocate engages the Court on what are, or should be, the core issues of the case. It is usually the last opportunity the advocate has to convince the Court of the “rightness” of his or her position.
In the not so distant past, in this Province, oral argument was considered to be at the heart of the appeal process. The factum was expected to be “a summary of the points to be raised on the appeal” and not a substitute for oral argument which was paramount. Today, factums are the written argument of the parties. They are considered by the Court of Appeal to be the most
1 Borden Ladner Gervais LLP (Calgary). Special thanks to Julie G. Hopkins of Borden Ladner Gervais LLP who assisted with the preparation of this paper which was first presented at the Legal Education Society of Alberta’s “47th Annual Refresher; Civil Litigation” course, April, 2014 and who has appeared with me on a number of appeals. 2 See Timothy R.B Outerbridge, “Tactics for Written and Oral Advocacy: ‘Be Prepared, Be Brief, Be Gone’ (2012) Prepared for the Continuing Legal Education Society of British Columbia, online: Continuing Legal Education Society of British Columbia Practice Points
1 important argument in the appeal. For example, in a document dated July 12, 2004 entitled “Importance of Factums”,4 which, until recently, appeared on the Alberta Court of Appeal website, the Court stated:
The restrictions on time for oral appellant argument flow from, and reinforce, the importance of factums.
A panel of justices of the Court of Appeal always read the reasons of the judge appealed from, and all the factums filed. They often read other things too: salient law, or key pieces of evidence. Therefore, the justices always come to oral argument knowing the facts and the basic issues. Often some or all of them also bring some tentative views about the appeal.
…the factum is not a mere rehearsal for a play to be performed later. Counsel’s later oral argument might swing around one or two or three justices whom the factums had led to a tentative contrary view. But why would counsel wish to assume that heavy burden, by filing a poor factum?
Even if counsel succeeds in so swinging the panel around, a new problem then arises. Most justices do not take detailed notes of oral argument. The Court of Appeal cannot give an oral judgment if the judgment may make new law, or if the case is complex. If the Court of Appeal reserves decision, writing a judgment will take weeks. By then memory of oral argument has faded, and most notes of it are brief. The factums remain to reread, and so become more and more important. A persuasive careful factum once again tends to dominate. It is a continuing advocate, and a necessary reference book.5
However, while a good factum is critical, it does not render oral arguments superfluous or unimportant. The same document goes on to state:
Oral argument is an opportunity for counsel to clear up misunderstandings, supply emphasis or focus, and learn what the panel of justices are interested in, or disagree with. Above all, it lets counsel answer their questions. It is not the time to explain the facts or issues, raise new arguments, or merely drive slowly past the argument in counsel’s factum.6
Oral argument provides counsel the opportunity to engage the Court of Appeal on the key issues of the case. Supreme Court of Canada Justice Marshall Rothstein, while he was still a Justice of the Federal Court of Appeal, stated in a speech on oral advocacy:
The judges will come into the courtroom, having had a brief discussion. They will likely have a predisposition toward one side or the other, but only a predisposition. However, the judges want to be sure, if at all possible, that when they leave the
4 Online: Alberta Court of Appeal website
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