Yesterday, I attended the Written Appellate Advocacy program presented by The Advocates’ Society. This program delivered lessons on effective written advocacy, honing in on the crucial role of the factum. In this article, I will share some of my key takeaways from this program.
“Know Your Reader’s Brain” – Fireside Chat with Justice Laskin
The afternoon began with a fireside chat between The Honourable Justice John Laskin and Catherine Weiler. This session emphasized the role neuroscience plays in organizing written materials for maximum reader impact. Justice Laskin highlighted the many ways in which a factum is more important than oral arguments as it is read when the heart and mind of the reader is most open to persuasion. While acknowledging the unique power of oral arguments, the discussion underscored the impact of well-organized written advocacy which navigates readers through a thematic rather than chronological breakdown of the case, providing context and topic sentences throughout, only including the most essential details in a point-first style, and leveraging the power of storytelling to draw the reader in.
Getting Leave to Appeal — How to Put Your Best Foot Forward
In another segment moderated by Nadia Effendi, speakers Joseph Cheng, Alyssa Tokins, and Lauren J. Wihak delved into the complexities of obtaining Leave to Appeal. Practical considerations, such as selecting the appropriate court, understanding timeframes early, and crafting compelling narratives in leave factums were explored. The rarity of leave granted to the Supreme Court of Canada was highlighted, urging lawyers to prioritize quality over quantity in their grounds for appeal and focusing on what the test for leave is in each particular court.
Drafting a Compelling Factum
Sujit Choudhry, Erin Dann, and Karrie Wolfe then presented on the process for drafting a compelling factum. The speakers emphasized the role of lawyers as officers of the court in assisting the court to receive the information needed to resolve the appeal. If the Appellant has framed the issues incorrectly, counsel for the Respondent should reframe them to have maximum impact. Practical tips included using overview sections in each part of the factum to frame the case, avoiding re-stating the law when the law is not in dispute, adopting a point-first writing approach, and setting time limits for efficient drafting. The importance of conciseness, simplicity, and clarity in language was highlighted throughout.
Views from the Bench on Effective Written Advocacy
The program concluded with insights from the bench, featuring perspectives from The Honourable Chief Justice Marianne Rivoalen, The Honourable Associate Chief Justice Michal Fairburn, and The Honourable Thomas Albert Cromwell. The panel emphasized the critical role of written advocacy, especially in entirely written contexts such as Leave to Appeal applications. They highlighted the need for overview sections of factums to concisely present the governing idea, provide context, and consistently frame the structure of legal arguments throughout. Practical advice included adopting an issue-driven approach which anticipates questions from the bench, avoiding misstatements of facts, and ensuring oral and written arguments were aligned.
The wealth of knowledge from the speakers in this program highlighted the value of well-crafted written advocacy in putting your best foot forward on appeals. Thanks to the Advocates’ Society for putting together a fantastic afternoon.
Thanks for reading,