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opinion respected litigator who has appeared many times before the Supreme Court. In a June 2009 speech to a convention of Canadian defence lawyers, Cherniak said: "The factum and the selection of the written record is undoubtedly the most important part of the exercise. . . . Each judge will have come in to the hearing with a definite leaning to one side or another, or in some cases, with his or her mind mostly made up." He went on: "I put the very question to Justice [Louise] Charron at a Cambridge Lectures bull session two years ago in this way: 'Given the amount of our time and our client's money that counsel spend preparing themselves for oral argument, does it make a difference?' Her answer was phrased very diplomatically, but the import was clear. 'Not very much.'" Other Supreme Court judges have expressed views similar to Charron's. One retired judge commented, "a judge only changes his mind based on oral argument about 15 per cent of the time." Another said, "You seldom change your mind, although it does happen occasionally." It is reported that Gérard La Forest, a Supreme Court justice from 1985 to 1997, seriously proposed doing away with oral arguments altogether. Justice Ian Binnie does not entirely agree with views like these. Binnie gave his own account of pleading before the court in a 1998 speech to the Criminal Lawyers' Association. He acknowledged that much of a judge's thinking is done before oral argument, but said a lawyer's pleading was still important: "When you start your submission at 9:45 in the morning, remember that the judges are probably going to want to reach a tentative decision on the appeal before the sun goes down. . . . Courts of this size require the judges to prepare and think in advance of the hearing. Once oral argument is heard, the court wants to capitalize on some of the adrenalin pumping around the courtroom to, as Justice [Willard Zebedee] Estey used to say, 'get this baby airborne.'" There's another point. Sometimes the judges may not be interested in the arguments they are hearing. They may be interested in a different argument, one that's not made. One senior litigator from the Prairies told me, "the judges don't engage with counsel, they have their own little agendas; many lawyers agree with me." Cherniak gave a striking example of this in his 2009 speech. In the 1997 case of Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), he represented the appel- lant The Canadian Red Cross Society. "[T]he issue was the limits (or lack of limits) on the power of a commissioner to issue notices of potential findings of misconduct to targets of a public inquiry . . . it became apparent within about 30 seconds of my argument in the Supreme Court of Canada that the Red Cross pos- ition had no hope whatever of success. . . . Quite clearly, the court wanted to Check out the Supreme Court of Canada's webcasts at www.scc-csc.gc.ca/case-dossier/ cms-sgd/webcasts-webdiffusions- eng.aspx make a statement about the powers of commissioners in public inquiries, given the prominence and importance of the several public inquiries going on in Canada during the '90s, and this case gave it the opportunity. But they had no interest at all in my take on the issue." None of this means that you shouldn't worry about your oral argument if you're headed to the Supreme Court (just be sure you spend most of your time on the factum). You'll be filmed and can be watched anytime by anyone with access to a web site. And, after all, you will be before the highest court in the land. A lawyer said to me about his first appear- ance there after a long career in the courts below: "It's a real honour to appear in the Supreme Court. It's like a baseball player who plays in the World Series after 30 years in the game." Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com Shareholders Agreements An Annotated Guide, Second Edition Your ultimate guide through the rigours of drafting solid shareholders agreements The challenge in preparing a shareholders agreement is ensuring it meets the needs and intentions of clients. Guarantee that you've addressed the complex issues and considered all the circumstances which may arise and their impact with Shareholders Agreements: An Annotated Guide, Second Edition. ORDER your copy today Perfectbound with CD-ROM 336 pp. • 2009 • $90 P/C 0860010002 ISBN 978-0-88804-489-1 This cost-effective, well-crafted and user-friendly resource is an excellent guidebook for corporate-commercial lawyers and general practitioners. Tailor agreements to your clients' needs easily and effectively with the included CD-ROM version of the sample agreements. For a 30-day, no-risk evaluation call: 1.800.565.6967 CL0210 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Moreau_Shareholders Agreement (CL 1-3sq).indd 1 www. C ANADIAN Law ye rmag.com FEBRU AR Y 2010 19 1/18/10 12:01:48 PM Aird & Berlis LLP Edited by Lisa E. Moreau