Former OCA Justice David Brown says lawyers will do dry runs of arguments before experienced panel
The Toronto Lawyers’ Association has launched a program that will give civil lawyers the chance to practice their appellate arguments before a panel that includes former justices – a move that former Ontario Court of Appeal Justice David Brown hopes will equip civil lawyers with the type of experience that is more common among their criminal law counterparts.
“The custom in Ontario is that for criminal appeals, the lawyer who took the trial usually doesn’t take the appeal,” Brown told Law Times on Friday. Because lawyers who work on criminal appeals typically specialize in appellate matters, “the quality of advocacy in criminal appeals is very high,” Brown adds.
“The lawyers who argue those appeals are experienced,” he says. “They know the expectations of the judges of the Court of Appeal, before whom they appear, in terms of how an appeal should be argued, and they do that job very, very well.”
In contrast, civil and family law appeals are typically handled by the same lawyers who worked on the matters at the trial level. “A lot of the lawyers who appear before the Court of Appeal in civil and family cases may be there for the first time or only do one or two appeals during the course of their professional career,” Brown says. “That means they don’t have the same experience in the Court of Appeal as do the criminal appeal lawyers, and that really is a rather pronounced difference between the level of advocacy… between the criminal appeal bar and the civil appeal bar.”
The TLA’s new appellate mooting program aims to close that gap. “The expectations of the court are radically different on an appeal than they are in a trial,” Brown says.
Spearheaded by Brown and unveiled by the TLA this week, the new program is available at no additional cost to TLA members. To participate, lawyers must be counsel on a civil appeal that has a scheduled hearing date with the OCA and have already filed written materials with the court.
Practice moots will be held several weeks before a scheduled hearing date. Participants will have approximately an hour to present their arguments to a panel of former OCA justices and experienced appellate counsel. The panel will ask participants the types of questions they will likely encounter during their court hearing, and provide feedback to help strengthen their performance.
“If the lawyer has some areas of uncertainty that they are unclear on, the panel in this program can answer questions so that by the time the lawyer actually sets foot in the real Court of Appeal, the lawyer has a better understanding of what’s probably going to happen,” Brown says.
“What I would hope is that… the lawyer will walk away with a lot of food for thought as to how he or she could make the real oral argument before the Court of Appeal more effective for the client.”
Brown, who currently serves as an arbitrator but was on the bench at the OCA for 10 years before retiring in 2024, has spent years running workshops to help lawyers better understand the appeals process. The workshops were administered through various branches of the Federation of Ontario Law Associations, but did not involve dry runs of appellate arguments.
For the TLA program, he contacted other recently retired OCA justices over the summer to ask if they wanted to serve on the panel. Most of them said yes.
“I think it is a really great idea,” Brown says of the program.” It fills a void in advocacy education that exists in the province.”
He hopes that other regional law associations will also administer the program in the future so that lawyers located anywhere in Ontario can access it.
The program would ideally give lawyers confidence when they walk into the OCA. “A calm lawyer is usually a more effective lawyer than an anxious lawyer,” Brown says.
