Advancing Your Appellate Advocacy | CPDonline.ca

Advancing Your Appellate Advocacy

Advancing Your Appellate Advocacy
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CPD Accredited Credits
Professionalism: 0.25
15 minutes
Substantive: 1.75
105 minutes
Published
2019
Presenter(s)
David L. Corbett
Caroline Mandell
Christina Porretta
Gary Trotter
Katherine van Rensburg
Source
Toronto Lawyers Association (TLA)
Provider
CPDOnline.ca
Language
English
Length
2 hours
Price
$139.00 plus tax
Includes Handouts

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

Presenters

David L. Corbett

Justice Corbett earned his LL.B. from Osgoode Hall Law School in 1985 and was called to the bar in 1987. He practiced with Torys LLP until 1996, and then at Eberts Symes Street Corbett & Pinto until his appointment to the Ontario Superior Court of Justice in June 2003. Prior to his appointment, he taught as an adjunct or visiting professor for thirteen years at Osgoode Hall Law School, University of Toronto Law School, and University of Western Ontario Law School. As a judge, he has been chambered in Milton, Brampton, and, since June 2012, in Toronto. Justice Corbett considers himself a generalist and has presided extensively in criminal, family and civil law motions and trials.

Caroline Mandell

Caroline Mandell is a legal writing coach, working with lawyers, adjudicators, and judges at all levels and in all practice areas to polish their writing skills. She is also a member of the Ontario Health Professions Appeal and Review Board and the Ontario Health Services Appeal and Review Board. From 2007–2017, Caroline was counsel to the judges of the Court of Appeal for Ontario. From 2014–2018, she was also an adjunct professor of legal research and writing at the University of Toronto. Caroline has a JD and an MA from the University of Toronto and was called to the Ontario bar in 2005.

Christina Porretta

Christina is a partner in the Advisory Research group in Toronto, which provides opinions on complex or novel legal issues to clients and lawyers within the Firm. In her practice, Christina provides advice to corporate clients faced with potential litigation, and works closely with litigators to provide strategic support to clients already engaged in litigation. Drawing on her previous experience as a litigator, Christina develops legal arguments and pleadings, and advises on contractual or statutory interpretation, unclaimed property, conflict of laws, and numerous other corporate and commercial matters. She is regularly called upon to prepare written materials for appeals to the Court of Appeal and Supreme Court of Canada and has played a significant role in cases involving professional negligence, complex commercial disputes and insurance matters. Christina is the Chair of the Firm’s Student Committee and is also responsible for the training and development of the research and writing skills of the articling and summer students in the Firm’s Toronto office.

Christina is a frequent publisher and was cited by the Supreme Court of Canada in CIBC v. Green, the securities class action trilogy, for her work on limitation periods. Christina also maintains Dentons’ Limitations Law Blog, which provides updates on key developments on laws involving limitation periods in Ontario.

Prior to joining Dentons, Christina clerked at the Federal Court of Appeal for the Honourable Mr. Justice Brian Malone and practiced civil litigation at another national law firm in Toronto. Christina also obtained an LL.M. at Osgoode Hall, focusing her research on conflict of laws.

Christina brings her prior experience as a litigator and judicial law clerk to her practice in order to produce practical answers designed to assist the Firm’s clients and advocate for their interests.

The Honourable Justice Gary Trotter

Justice Trotter was appointed to the Ontario Court of Justice in 2005, to the Superior Court of Justice in 2008 and to the Court of Appeal for Ontario in 2016.

Justice Trotter was educated at the University of Toronto (LL.B.), Osgoode Hall Law School (LL.M.) and the University of Cambridge (M. Phil., Ph.D.). Upon his call to the Bar in 1987, he was an associate at the firm of Beard, Winter, Gordon (now Beard, Winter). From 1988 to 2000, Justice Trotter was counsel with the Crown Law Office (Criminal). He became a full-time member of the Faculty of Law at Queen's University, where he taught courses in criminal law and procedure. He also served as Associate Dean, and then as Acting Dean of Law.

In addition to The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010) (looseleaf) and Understanding Bail in Canada (Toronto: Irwin Law, 2013), Justice Trotter is the author of numerous law journal articles, book chapters, as well as being a co-author of a number of casebooks. He frequently speaks at continuing education programs for lawyers and judges.

Katherine van Rensburg

Justice Katherine van Rensburg was appointed to the Court of Appeal for Ontario in October 2013. Prior to her appointment to this court she had served on the Superior Court of Justice in the Central West Region since November 2006. As a trial judge, Justice van Rensburg was chambered in Brampton, and presided over criminal, family and civil law matters. She also served on the Divisional Court.

Justice van Rensburg was an associate lawyer and then a partner at the Toronto law firm Smith Lyons LLP, and she became a partner in Gowling Lafleur Henderson LLP with the merger of the two firms in 2001. She practised civil litigation and environmental law, having been certified by the Law Society of Upper Canada as a specialist in each.

Justice van Rensburg is a graduate of the University of Toronto (B.A.), Queen's University (LL.B.) and Cambridge University (LL.M.). She spent her articling year as law clerk for the Honourable Justice Wm. McIntyre at the Supreme Court of Canada.

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