This past semester, I've had the privilege of teaching Legal Research and Writing to first-year law students at Toronto Metropolitan University. Legal research and writing is something I'm passionate about and one of my favourite parts of my job.
As litigators, research and writing are the foundation of much of the work we do. This has been especially true during the pandemic as written (or virtual) advocacy has become increasingly important. But with busy practices, it can be hard to find the time to reflect on ways to improve our research and writing skills. As I have prepared for class each week, I have had just this opportunity. Not only have I been able to review some of the great works on effective legal writing ("Forgot the Wind-up and Make the Pitch" by the Honourable John Laskin is a classic), but the students' questions in class have sharpened my own thinking about what makes effective advocacy.
Take unhelpful facts, for example. Every case has them, and a litigator's job is to fairly present the facts and convince the court that those facts aren't determinative. Effective written advocacy acknowledges those facts but finds a way to diminish their importance or counter them. This might be done through the use of the passive voice or pairing the unhelpful fact with a helpful fact/response.
In addition to written advocacy, the course also covers oral advocacy. We were very fortunate to have retired Justice of the Court of Appeal for Ontario, John Laskin, present on effective oral advocacy and responding to questions from the bench last week.
One key piece of advice was the rule of three. If you are arguing a case, be selective in your arguments and choose the best three (or fewer). It takes a certain amount of bravery to tailor your argument to the strongest points, but this is much more persuasive than attempting to argue eight, nine, or even ten arguments.
Similarly, questions from the bench should be viewed as an advocacy opportunity. An active panel is engaged in the case and open to being persuaded. Litigators should expect that a large part of their time in court will be spent responding to questions from the bench. Learning to do so effectively is a key advocacy skill.
These lessons and others are ones I will take with me after the semester ends. I'm looking forward to putting the lessons I've taught (and learned) in class into practice.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.