Index

June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2020 J.E. Côté

WHAT IS THIS CASE ABOUT?

One approach to oral argument should be better known. It is effective in an appeal court with short time limits for oral argument. And in many other settings. For example, before a regulatory tribunal used to setting policy and regulating an industry. Or before a trial judge who is interested in justice, policy, and shaping the law. Indeed, it is useful in any case where the tribunal is now familiar with the evidence and its conflicts.

Oral and written argument are different. So if you have already filed written argument, your oral argument should offer different nutrition. And different flavoring.

Often the tribunal has read a mass of facts, arguments, and narrow legal rules or authorities. Its members' tummies and heads crave something different. Especially a way to unite or soar over the disjointed facts heaped around their ankles.

Facts, evidence, and legal authorities are not the only topics which you can properly argue. In many disputes, you can very properly urge fairness and sound policy. You certainly can where the law or the standard of proof is unclear, or it depends upon woolly criteria..

In such cases, argue orally what this case is really about. Or argue what will be the larger consequences of a decision for one party or the other. Or suggest what the profession or the industry wants from this tribunal. Sometimes that type of argument is the only thing which you can fit into the few minutes permitted. Especially the little time left net of questions from the tribunal.

Emphasizing fairness and policy may even let you turn questions from the tribunal into your best argument. “I am pleased to answer that, because my answer is my basic submission.”

Here is an example. In a torts suit for negligently causing a big fire, how to interpret some safety regulations is disputed. Try to argue orally that you advocate rules which will deter risky behavior and encourage safe behavior. But your opponent wants to win this particular suit by adopting rules which in future will always encourage risky behavior and discourage safe behavior.

If there are several points which you really want to argue orally, see if you can consolidate or link them by such an essence-of-the-case, policy, or fairness argument. Try to make several arguments all become facets of the same gemstone.

To prepare a good argument of this sort, you need time in a quiet place just to think. And it helps to debate your position with a friend or colleague.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.