Law Times

Law times • OctOber 5/12, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On LITIGATION Appeals a 'very hot' legal topic Trend spawns practice groups and new resources for lawyers BY JULIUS MELNITZER For Law Times acknowledges. "Th e role of appellate courts is a very hot topic, both in the jurisprudence and in the media," says Justice John Evans of the Federal Court of Appeal. From the profession's perspective, the ascendancy of appellate advocacy has manifested itself in three recent devel- opments: the publication of a compre- hensive work on appellate review; the establishment of the Supreme Court Ad- vocacy Institute; and signs of increasing attention from law fi rms that see such cases as a profi t centre and client draw. Th ere are a number of reasons for A the growing prominence of appellate advocacy. First, the controversy over the judi- ciary's role in dealing with Charter is- sues has brought appellate courts into the headlines in the last 25 years. "Th ere's been a great deal more pub- lic litigation around," says Don Brown, a partner emeritus at Blake Cassels & Graydon LLP. Quite apart from the Charter, appellate courts have also been more forthright in acknowledging their role as lawmakers. "In the last 10 or 15 years, judges are more inclined to overrule precedent and correct their own mistakes," Brown says. "And they're acknowledging what they're doing instead of resorting to distinguish- ing previous cases into non-existence." Considerably lower on the public ra- dar but of great importance to lawyers is the increasing deference shown to trial judges by appellate courts. "Th ere are those who believe that the Supreme Court of Canada has unduly curbed the supervisory role of appellate courts," Evans says. But even as substantive review has narrowed, the courts have been increas- ingly prone to procedural review. ppellate advocacy is on a lot of people's minds lately, some- thing even a prominent judge "Appellate courts are more sensitive to due process and more willing to in- tervene if it is lacking," Brown says. What has happened is that a new framework for appellate review has emerged. Unfortunately, a comprehen- sive overview of this evolution hasn't been available until recently except by painstaking research of individual cases and articles on the subject. Th at it is now available goes to the credit of Brown and his recently pub- lished two-volume loose-leaf work called Civil Appeals. It's the fi rst Cana- dian work of its kind on the subject, one that's long past due, according to Earl Cherniak of Lerners LLP. "Being an accomplished trial law- yer doesn't translate into being an ac- complished appellate lawyer," he says. "When you go to the appeal courts, you have to speak their language. Until Civ- il Appeals was published, there's never been anything comprehensive to show you how. Now there is." Lawyers seeking practical help, on the other hand, can also turn to the Supreme Court Advocacy Institute, the brainchild of former Supreme Court of Canada justice Frank Iacobucci. Th e in- stitute's mission is to increase the eff ec- tiveness and quality of advocacy before the top court. Its principal activity is to provide free, non-partisan advice to lawyers scheduled to appear before it. Launched formally in February 2007, the institute is a registered charity intended as a public service. It is inde- pendent and not associated with the top court. However, Chief Justice Beverley McLachlin has endorsed its work. "We welcome the Supreme Court Institute's Advocacy contribution to the Supreme Court of Canada and to the public by providing both novice and experienced counsel with a forum in which to refi ne their advocacy," she wrote on the institute's web site. Owen Rees and Grégoire Webber, two former Supreme Court clerks, are the co- executive directors of the institute. Rees MEEHAN & SHARPE on Appellate Advocacy DVD Eugene Meehan, Q.C. and The Honourable Robert J. Sharpe How to develop an 'appealing' case Winning on appeal requires a different set of skills than winning at trial. With this video you'll get tips on written and oral advocacy and expert advice on how to triumph on appeal. 'Managing an appeal practice on your own can kill you,' says Jasmine Akbarali. is also a lawyer with Toronto's Stock- woods LLP, and Webber is a lecturer at the London School of Economics. "Th e [institute's] primary function is to provide Supreme Court practice moots to counsel on the hearing list," says Pat- rick Foy of Borden Ladner Gervais LLP's Vancouver offi ce, one of the many senior lawyers across Canada who have volun- teered to sit as panel members. Th e Canadian Bar Association, the Ontario Bar Association, and the Advo- cates' Society provided seed money for the institute. "We don't take private donations, and our continuous funding comes from ap- plications to the law foundations of vari- ous provinces," Rees says. Th ere are committees in British Co- lumbia, Alberta, Ontario, Quebec, and the Maritimes. Th e panels sit in Van- couver, Edmonton, Calgary, Toronto, Ottawa, Montreal, Halifax, and other centres in Atlantic Canada as required. "Frank [Iacobucci] wanted a national institute with representatives across the country," Foy says. Th ere's no cost to the litigants, whose expenses are covered by the institute. Th e practice sessions are conducted separately for the parties in a case. Th ey consist of a 45-minute hearing followed by informal critiques from the panel. "Th e program's value lies in the qual- ity of the roster of panellists," Foy says. Uptake has been good. "We hold practice sessions for one side or the other or both sides in about 25 per cent of the cases heard by the Supreme Court," Rees says. "But in some prov- inces, we get as high as 75 per cent." Th e proceedings are strictly private. "We don't even release the names of counsel who have participated," Rees says. "But we do get counsel at all levels of seniority — fi rst-timers in the court, repeat players in the court, and members of our own panels. We also get counsel who are repeaters in the program." Rees says the practice sessions' most important contribution is helping coun- sel focus and refi ne their arguments. "Our metric of success is the feedback of counsel," he says. "And many partici- pants tell us that the moot was tougher than the real thing, which means we've done our job." Despite the growing focus on appellate advocacy, however, very few Canadian fi rms have formal appeal practice groups. "A lawyer working on his own can't make a living in Canada just by doing appeals," says Cherniak. For example, despite Cherniak's con- siderable presence at Lerners for more than 40 years and the fi rm's track record on appeals, it's only this year that it for- malized its appellate advocacy group. "It's not like we're suddenly doing some- thing we've never done before," says Jas- mine Akbarali," who co-chairs the group with Cynthia Kuehl. "But when we took a look at our experience, we found that there were a number of qualifi ed people." While it might have been theoreti- cally possible to gather all the fi rm's ap- peals and allow one or two lawyers to do See Few, page 11 Features winning techniques and strategies and identifies common pitfalls, you'll learn how to: • write an effective appellate factum • construct a compelling argument • improve your oral advocacy skills • marshal the facts and law for a successful case This 'how-to-win-an-appeal' video is an excellent guide to the essentials before an appellate court. Also includes tips on appealing board decisions useful in: • Labour Law • Human Rights • Provincial, Federal and Territorial Tribunals ORDER your copy today DVD • Approx 30 minutes • Approx $165 • October 2009 P/C 0765150001 • ISBN 978-0-88804-496-9 Canada Law BookNew! PAGE 9 For a 5-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. • Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com LT1009

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