Over the course of the last two and a half years we have endured the shock and awe of the COVID-19 pandemic. No one will ever forget the first shutdown of the Superior Court of Ontario in March 2020. Two years later, our legal landscape has changed. Now that the pandemic has “subsided,” courts are returning to in-person conferences, motions and trials.
Appearing in person before a judge is an integral part of our legal process. However, it is just as important to understand the dynamics of the courtroom and how to relate to and manage your judge. What happens when your judge is not in tune with your argument? What happens if your judge is not listening or is unhelpful?
The first thing to remind yourself is that your judge is a highly trained person who is managing many cases at all stages of the legal process. Judges have an important function in settling disputes which impacts you and your client. In order to be a persuasive advocate, it is important to know the standard protocols in a court setting using these five basic tips:
Be professional;
Apply courtesy at all times;
Provide information and never advice;
Don’t obscure facts; and
Be helpful at all times.
These five basic tips will serve you well throughout your career. These tips alone will help you build a solid presence with any judge. But what happens when, despite having used these tips, the judge still is not engaged with you or your legal arguments? In this case you’ll have to make the extra effort to watch out for the following judicial pet peeves.
Not being respectful to staff
In order to get ready to engage with your judge, you must read the courtroom before the judge arrives. Take steps to introduce yourself to the court officer and the clerk. This sets a proper and professional setting. Clerks interact with judges, so make sure you are polite and respectful. Every interaction with staff should be a step forward in your case. Be alert to all of your judiciary interactions. Research your judge and investigate their cases. Read anything and everything written by your judge that applies to your cases.
Court is in session
What happens with the judge who turns interventionist, peppering you with questions out of scope? Make sure that you have standard statements prepared so that you don’t have to think of a reply. This is not just about you and your advocacy. You are there to assist your client and to obtain an order or suggestions from the judge. Give your judge a road map. Don’t waste precious court time by not being prepared for the hard questions.
Guide your judge to specific paragraphs; know your paragraph numbers. Remind your judge of the facts of your client’s argument. Keep notes of the judge’s pet peeves. Don’t argue with your judge but be precise in your point. Make your point and move on. Don’t be repetitive.
Keep your cases moving forward
Orient the judge to the issues you will be discussing. Don’t ask your judge if they have read the materials; of course they have read the materials, that’s their job. Provide clear and sparse documents. Make short statements together with evidence and case references.
Don’t make statements that are not supported in your materials. Don’t make new statements in your oral presentation. You don’t want to hear the question “Where in your documents is that statement?” from a judge. The judge has already read your material and will likely hone in on your weakest argument. Anticipate this. Have an answer. It does not have to be the best answer at all times but it has to be there. Think through your weakest argument and create a rebuttal.
Draft an interim or final order and include it in your materials. Tell the judge what can be accomplished at each step. This keeps the flow of your cases moving forward.
Follow practice directions and follow the updates
Of course, judges have pet peeves in and out of the courtroom. One of the most important procedural issues is to ensure that all counsel are following the most recent practice directions. Diarize the changes and make sure your materials conform to all current iterations of the directions. Judges are often frustrated with counsel who exceed page limit requirements — don’t be that lawyer. The more you follow the rules the more professional you will be in the eyes of the court. Build your reputation one interaction at a time.
Don’t trash your opponent in your court materials
You are not your client or your opposing counsel. Derogatory language aimed at opposing counsel is disrespectful and not in keeping with the civility principles of the Law Society of Ontario (LSO): “[3] A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners, but should be prepared, when requested, to advise and represent a client in a complaint involving another legal practitioner. ” (LSO sec. 7.2-1)
Focus your materials on facts and evidence. Resist your and your client’s desire to trash talk the opposing counsel and opposing client; this behaviour is not conducive in family law. Focus on bringing down the rhetoric and temperature in your legal matters. In the case of Alsawwah v. Afifi [2020] O.J. No. 2063 Justice Marvin Kurz stated: “Much of the oratory … is unnecessary, excessive, distracting, and unhelpful to the resolution of the sole issue in this motion.”
Your reputation is built one case at a time, and you can lose that goodwill in one minute or in one paragraph. Remember you are an officer of the court. Yes, your job is to be an advocate, but you must do so with integrity.
Further thoughts:
Judge frustrated with counsel
The frustrated judge is one that is tired of things like irrelevant facts, scenarios that do not conform with basic family law principles, an incoherent structure in the brief and your delivery. This kind of behaviour will frustrate your judge, so your job is to be clear, direct and concise.
Most of your interactions with judges will be with conferences and motions — both of these materials should be a work of art — and your positions should be clear, not repetitive, and not just dumped into a brief or an affidavit; judges are frustrated by unhelpful conferences.
The judge is there to assist in the matter for both sides and provide feedback on your submissions. If you are not willing to at least entertain what the judge says, you are doing a disservice to yourself and your client.
Judge interrupts
Remain calm.
I say this again: remain calm, take a deep breath, listen to what the judge is saying or asking. It may be something that can be helpful. If it is not, let the judge say their piece. Acknowledge the comment, tell the judge that you have heard the comments and move on. Hopefully this will be a one-off event.
Judges generally interrupt when something is off, irrelevant or too argumentative. Remember that you are being the persuasive advocate. Sassy backtalk is not appropriate. A neutral tone is always best
Remember that you may be before this judge again, so you want to make an impression.
You can’t control the judge, but you can control yourself. Present your arguments in a calm and professional manner
If the judge is very interventionist and is just shutting you down, make notes of what they are saying. Maybe you have missed something. Maybe they are having a bad day. But perhaps, maybe they are trying to tell you something.
Judge doesn’t provide time to respond to concerns they have raised
Because case conferences and motions are only one hour, my advice is always take detailed notes and think of your conference as a persuasive argument.
Remember that the judge is going to give you feedback. Any concerns raised by the judge are a guidepost for you. If the judge is questioning you or your submission on, for example, an occupation rent claim, take a good look at the case law before your walk into the courtroom.
Original Article: https://www.thelawyersdaily.ca/articles/35250
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