Canadian Lawyer

30 A P R I L 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m that two volunteers — both of whom devote 250 to 300 hours of time each year — couldn't run the institute on their own. They instituted a regional structure that could recruit and plan sessions in conjunction with their local bars. Practice sessions are conducted in total secrecy. When more than one party in an appeal asks for a session, a fresh team of advisers is used for each. Potential mock judges are asked to do thorough conflict checks; a task that can sometimes present difficulties. "At some of the big commercial firms, for instance, half of the bar is conflicted out," says Chaudhury. They typically spend four or five hours preparing, fol- lowed by a two-hour session. They get nothing in return beyond the satisfac- tion of contributing to their profession. "Wait, I think we gave them a mug once," Rees corrects himself. Where possible, says Rees, panels comprise one adviser with expertise in the field of law raised by the appeal and two who don't, since non-specialist judges at the top court often ask the most telling questions during hearings. "If it's a good question, it can make or break your case," says Rees. S ome elements of the mock hearings, of course, do not mir- ror Supreme Court reality. Ses- sions tend to take place after work hours. Nobody is gowned and there are no court personnel, law clerks, or onlookers. In addition, only one side to each dispute is present in order to safeguard the confidentiality of partici- pants and their legal arguments. Lawyers arrive in search of different things. Some are keen to know about courtroom decorum. Others worry about whether they should address a judge by name or how to work the microphone on the lectern. For those with Supreme Court expe- rience, the exercise is not about learning how to pitch; their goal is to modulate the speed and trajectory of their pitch. Indeed, Hutchison — one of the top appellate lawyers in the country — is one of those who routinely sharpens his arguments in front of an institute panel. Tough practice sessions can provide the best preparation for the potentially petrifying reality of a Supreme Court appeal, says Chaudhury. "Every lawyer's worst nightmare is freezing up," she says. "You are being attacked like you will never be attacked again. The advisers do not hold back. Part of being an advocate is to learn to get beat up and get back up again. At the sessions I've seen, the mooting part can be quite harsh. They are imitating the court, so they won't necessarily cut you any slack." From the opposite side of the bench, judges notice a recurring set of errors and misapprehensions that institute sessions can help rectify, says SCC Jus- tice Michael Moldaver. For instance, he notes that one of the most common mistakes counsel make is to misper- ceive the Supreme Court as being a court that tries to catch trial errors and ensure a correct result for the litigants. In fact, he says its role is to scrutinize the big picture: "It is not about what the law is. It is about what should the law be. It is about what's best for Canada and Canadian citizens. I would say that just 10 per cent of what we do is error correction. The other 90 per cent is jur- isprudential." Moldaver says many counsel are overly committed to their prepared script, mistakenly thinking the court will think less of them if they fail to consume their full hour of allotted time. Similarly, they feel that written facta will look deficient if they weigh in at less than the permissible 40 pages. "There are no bonus points for stay- ing at the podium until the red light goes on," says Moldaver. "If you've got two main points and cover them in 45 minutes and sit down, believe me, the bench will love you. And when we see a 25-page factum, it is a gift from heaven." Some counsel fail to appreciate that judges have carefully read through the voluminous case record. They have a distinct impression of the key legal points and a firm sense of the issues at stake. Judges are also likely to have developed a leaning toward one side or the other. What they are really seek- ing is guidance as to how they can design their ultimate decision so as to fit within existing jurisprudence. Oral submissions give them a chance to probe seeming contradictions or loose ends and tease out logical connections. Accordingly, Moldaver says, wise coun- sel respond to questions from the bench without slavishly keeping to a plan they mapped out in advance. Adept counsel work hard to show the judges what is "both right and reason- able," he says. "When making submis- sions, we are big on logic and common sense, not on hyperbole and in terrorem arguments. What are the ramifications "There are no bonus points for staying at the podium until the red light goes on. If you've got two main points and cover them in 45 minutes and sit down, believe me, the bench will love you. And when we see a 25-page factum, it is a gift from heaven." Supreme Court of Canada Justice MICHAEL MOLDAVER

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