Law students are constantly reminded of the dichotomy between studying law and practising law. Though law students must generally develop faith in their future selves to learn on the job, it is highly reassuring to get insight from practising lawyers.
In February 2018, the McGill Chapter to the Quebec branch of the Canadian Bar Association hosted the renowned Woods Litigation Boutique during an event labelled “The Art of Pleading,” and welcomed Me Marie-Louise Delisle, Me Patrick Ouellet, Me Louis Sévéno, and Me Caroline Biron on a bilingual panel to share their depths of knowledge and legal expertise.
Though it was made clear that life as a litigator involves continuous learning and skill-honing, our four speakers provided us with three important yet simple takeaways:
1. Know the Facts
Good facts make good law, and cases are won and lost based on the facts. Judges can only base their judgment on the evidence that is adduced, therefore ensuring that your client’s version of the facts is accepted will lead to a favorable decision. A mastery over facts during pleading is thus essential; the litigator must prepare and present the facts to the judge in an orderly, typically chronological, fashion. The litigator must remind the judge how they arrived at those facts: everything needs to be backed up with evidence, and there must be a concise and continuous storyline flowing through the facts. Considering that the burden of proof rests, in civil matters, on a balance of probabilities, the question becomes: what is the most credible statement of facts that can be made?
2. Know the Environment
Although oral pleading certainly takes talent, the panel emphasized the importance of maximizing and controlling the courtroom by mastering the environment. The panel offered four tips to litigators learning this skill. First, lawyers must know who the presiding judge will be and prepare accordingly by familiarizing themselves with that judge’s personality, values, and beliefs. Considering that the legal community is rather small, this information may be obtained by simply asking a colleague. Second, it is fundamental during oral pleading to establish a dialogue with the judge to discover which points to emphasize and how to make an argument more convincing. Lawyers should focus on the language of the judge to infer their method of thinking. Third, lawyers must prove that they are reliable and competent by knowing basic information such as the names of witnesses and the times and places of the facts from testimony. Finally, the panel suggested maintaining a ‘poker face’ and avoid becoming overly emotional in front of the judge. Establishing and maintaining a solid reputation within the courts requires objectivity, rigor, and intellect.
3. Know the Legal Arguments
Using case law to one’s advantage involves finding a legal way, out of the quagmire of competing interpretations, to persuasively explain the advantageous interpretation to the judge. Knowing the applicable legislation and case law in their entirety is crucial; it is a mistake to rely on information that one has not read or fully understood. Lawyers must seem reliable, which they can prove in their ability to answer questions or handle challenges posed by the judge regarding the case law. Lawyers should also be conscious of the judge who rendered the decision in the case law in order for it to be used effectively. For example, if a judge is an expert on the topic for which they rendered a decision, the precedent is likely to be more convincing to other judges. Finally, if there are precedents lending to legal weaknesses in one’s case, one must openly recognize them and explain why they are not necessarily weaknesses. Failing to do so only risks a slight to one’s reputation as such weaknesses will almost always be eventually revealed.
Mastering these skills will not happen immediately, but being aware of to the skills required to effectively advocate in court gives law students a goal to work towards. In our anticipation to become full-fledge lawyers, practice makes perfect.