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Appeals a ‘very hot’ legal topic

|Written By Julius Melnitzer

Appellate advocacy is on a lot of people’s minds lately, something even a prominent judge acknowledges.

‘Managing an appeal practice on your own can kill you,’ says Jasmine Akbarali.

“The 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 developments: the publication of a comprehensive work on appellate review; the establishment of the Supreme Court Advocacy Institute; and signs of increasing attention from law firms that see such cases as a profit centre and client draw.

There are a number of reasons for the growing prominence of appellate advocacy.

First, the controversy over the judiciary’s role in dealing with Charter issues has brought appellate courts into the headlines in the last 25 years.

“There’s been a great deal more public 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 distinguishing previous cases into non-existence.”

Considerably lower on the public radar but of great importance to lawyers is the increasing deference shown to trial judges by appellate courts.

“There 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 increasingly prone to procedural review.

“Appellate courts are more sensitive to due process and more willing to intervene if it is lacking,” Brown says.

What has happened is that a new framework for appellate review has emerged. Unfortunately, a comprehensive overview of this evolution hasn’t been available until recently except by painstaking research of individual cases and articles on the subject.

That it is now available goes to the credit of Brown and his recently published two-volume loose-leaf work called Civil Appeals. It’s the first Canadian work of its kind on the subject, one that’s long past due, according to Earl Cherniak of Lerners LLP.

“Being an accomplished trial lawyer doesn’t translate into being an accomplished appellate lawyer,” he says. “When you go to the appeal courts, you have to speak their language. Until Civil 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.

The institute’s mission is to increase the effectiveness 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 independent and not associated with the top court. However, Chief Justice Beverley McLachlin has endorsed its work.

“We welcome the Supreme Court Advocacy Institute’s contribution to the Supreme Court of Canada and to the public by providing both novice and experienced counsel with a forum in which to refine 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 is also a lawyer with Toronto’s Stockwoods LLP, and Webber is a lecturer at the London School of Economics.

“The [institute’s] primary function is to provide Supreme Court practice moots to counsel on the hearing list,” says Patrick Foy of Borden Ladner Gervais LLP’s Vancouver office, one of the many senior lawyers across Canada who have volunteered to sit as panel members.

The Canadian Bar Association, the Ontario Bar Association, and the Advocates’ Society provided seed money for the institute.

“We don’t take private donations, and our continuous funding comes from applications to the law foundations of various provinces,” Rees says.

There are committees in British Columbia, Alberta, Ontario, Quebec, and the Maritimes. The panels sit in Vancouver, 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.

There’s no cost to the litigants, whose expenses are covered by the institute.

The practice sessions are conducted separately for the parties in a case. They consist of a 45-minute hearing followed by informal critiques from the panel.

“The program’s value lies in the quality 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 provinces, we get as high as 75 per cent.”

The 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 - first-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 counsel focus and refine their arguments.

“Our metric of success is the feedback of counsel,” he says. “And many participants 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 firms 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 considerable presence at Lerners for more than 40 years and the firm’s track record on appeals, it’s only this year that it formalized its appellate advocacy group.

“It’s not like we’re suddenly doing something we’ve never done before,” says Jasmine 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 qualified people.”

While it might have been theoretically possible to gather all the firm’s appeals and allow one or two lawyers to do them exclusively, the firm never considered that route.

“We had quite a few people who wanted to be in the group, which gave us considerable flexibility and also allowed for the kind of communal input that boosts the quality of work,” Akbarali says.

“Besides, managing an appeal practice on your own can kill you. At one point, I had three sets of transcripts come in within one week of each other.”

The group’s marketing plan includes advertising, expansion of its web presence, outreach presentations at regional centres, and developing individual relationships with trial lawyers.

At BLG, meanwhile, the appellate group has formally been around since 2000.

“Trial and appellate counsel enjoy separate skills,” says Foy, who heads the group. “Trials are about creating records in real time, the credibility of witnesses, and making sure everything relevant is before the court.

Appeals are about interpreting records in compressed time, about the credibility of counsel, and about a selection process where you throw things away and let the appeal court rely on you to bring the most important matters to their attention.”

Advocacy writing skills are also at a higher premium on appeal where counsel face time limits on oral argument and intense questioning.

BLG’s group consists of 42 lawyers in its five offices across Canada. It concentrates on disputes that are likely to proceed beyond one level of decision through appeal or review.

Apart from maintaining an institutional practice from clients like insurance companies that send all their cases to the firm, the group collaborates with referring trial counsel at BLG on strategic decisions affecting the appeal record and provides opinions on the viability of appeals and judicial reviews.

So far, however, Lerners and BLG are the exception rather than the rule in setting up formal practice groups. As a result, it’s unclear how the growing importance of appellate advocacy will manifest itself in the organization and hierarchy of Canada’s law firms.        

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