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: firstname.lastname@example.org or phone 780-424-5345.