Today, virtual advocacy is the norm—and it is likely here to stay. Having the tools to successfully navigate virtual advocacy are mandatory for any litigation lawyer, but particularly those representing clients at the appellate level where strong oral advocacy can radically impact the results. In this article, we set out the top tips from McCarthy Tétrault's seasoned appellate advocates for effective virtual advocacy.
- Preparation, Preparation, Preparation
Thorough preparation has always been the backbone of strong appellate advocacy. But this is even more important in a virtual setting. One of the key types of preparation in the virtual setting is to create a "compendium" or "condensed book", and provide that book to the Court well in advance of the hearing.
While the compendium is usually optional, effective advocates know that in the virtual setting it is mandatory. It is simply too time consuming to have the panel flipping between multiple PDFs, or even if in paper, too difficult to determine over Zoom whether the panel is keeping up with your argument as you direct them to multiple volumes of materials. Instead, the effective advocate prepares a short, condensed volume containing all the most important documents and nothing else.
Of course, to prepare a compendium, an advocate must know the case inside and out, and prepare oral submissions well in advance of the hearing. Handing up last-minute documents or case law is never a good practice and the virtual setting renders it nearly impossible.
- Clear Communication
There is a lot to be lost in virtual translation. The two easiest ways to lose your audience and your message is pacing and style.
Pacing is vitally important, as the panel needs to be able to interject and ask questions. Go too quickly, and the chance to address the Justices' concerns is lost along with the appeal.
While everyone appears two-dimensional on the screen, the virtual advocate must modify their style to bring the presentation into the third-dimension. Talk with your hands, modulate your voice. Practice with a colleague in advance using the platform that the Court uses and ask for constructive feedback. Is it clear? Too fast? Is it interesting?
- Hook, Line and Sinker
The fact of the matter is that virtual proceedings are not as engaging as in-person proceedings. Put yourself in the Justices' shoes – imagine staring at the screen all day, every day, in one long Zoom meeting. The effective virtual appellate advocate works twice as hard to hold the Court's attention. This starts with a strong opening, which is more important than ever. If the Court's attention is not captured at the start, it will be very difficult engage in that all important dialogue. Avoid reading. Do not look at multiple screens. This is the only chance to shed light on the client's position in a way the written materials do not – don't squander it!
- Follow the Rules
Prior to the hearing, a smart appellate advocate will always check the Court website for the latest directions regarding appearing before that Court. The rules and protocols are adjusting as Courts gain more and more experience with what works and what doesn't. Once the smart appellate advocate review the direction, they will then follow the rules scrupulously. To break protocol is at the very least distracting, and at worst may interfere in a technical way with the presentation. Leave the Justices thinking only about the arguments in the case.
- Hire an Experienced Advocate
Ultimately, even in a virtual setting, good advocacy is still good advocacy. The main difference in the virtual Courtroom is that poor advocacy tends to be magnified, leading to worse outcomes. We can help. Our National Appellate Litigation Group regularly represents litigants before the Supreme Court of Canada and all provincial Appellate Courts, both virtually and in-person. If you have questions about our appellate practice, please contact Brandon Kain.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
