Canada: The Importance Of Mentorship In Young Appellate Advocacy

Mentorship has always been an important part of the life of an advocate, and it is a long-standing tradition. Many advocates, myself included, consider it our duty, since prior to the creation of formal legal education, it was the only way lawyers could learn their craft.

Mentorship is particularly important for lawyers who practice appellate advocacy, as the skills required of an appellate advocate are considerably different from those of a trial counsel. While many law schools do offer formal trial advocacy programs in their curriculum, there is limited opportunity for young lawyers to learn appellate advocacy in law school beyond participation in moots.

Therefore, the need for mentorship today remains as important as ever. Appellate counsel cultivate their skills through a process of learning, observation, and practice. However, mentoring an appellate lawyer requires much more than simply asking the junior to prepare the factum and to come along to observe the appeal; proper mentoring requires a focussed and much more sustained effort. Both the mentor and the mentee must be prepared to invest their time and energy into the process and make a commitment to the mentorship.

Trial and error are critical components. Young advocates learn by being given the opportunity to participate in both written and oral advocacy. Mentoring at the written advocacy stage involves early and frequent communications between the mentor and the mentee to discuss the matters in issue on the appeal, the appropriate strategy, and the nature of the arguments to be advanced, prior to the drafting of the factum. Throughout the drafting process, there must be ongoing communication, collaboration, and discussion, for example, the discussion as to why certain arguments are advanced and others are left behind.

Beyond the preparation of the factum, mentoring a young appellate advocate also includes involving them in oral argument. Being part of oral argument assists greatly in the development of written advocacy skills. Once again, close collaboration and communication between the mentor and mentee is important. In almost every case, there are one or more issues that can be given to the junior lawyer to argue, and where possible, the mentee should be given an opportunity to make part of the oral argument. The mentor must spend time assisting the mentee in the development and preparation of their oral argument, including preparation for responding to the questions that may come from the court.

In my experience, our courts are receptive to young advocates having the opportunity to present oral arguments. Earlier this year, Chief Justice Strathy and Associate Chief Justice Fairburn noted that the Court of Appeal for Ontario has a rich tradition of welcoming submissions from counsel at all stages of their career and that the court welcomes and encourages hearing arguments from newer counsel. They noted that the practice of senior counsel sharing a portion of oral argument with more junior counsel not only enhances training and mentorship for newer advocates, but also contributes to the vibrancy of the court as a public institution and increases public confidence in the justice system.

In my own experience, I have benefitted a great deal from this type of mentorship. My mentor, Earl Cherniak, always involved junior counsel in all aspects of the appeal, from the preparation of the factum to the completion of oral argument. In almost every case, the junior counsel was given the opportunity to argue one or more issues.

I have personally benefitted from this experience at all levels of court. I endeavour to do the same with the young advocates I work with, and I strongly urge others to do the same. The strong tradition of an excellent appellate bar is dependent on all counsel continuing the tradition of mentorship where young appellate lawyers learn from more senior counsel and pass on knowledge to future generations.

Mentorship is a two-way street and strengthens all participants; the mentor also learns from the mentee, has horizons broadened, and gains empathy and understanding of the challenges faced by their mentee. I encourage all appellate advocates to embrace mentorship opportunities where they exist and to create them where they are missing.

Mentorship does make a difference.