Recently, Justice Rothstein retired from the Supreme Court of Canada. He was a long serving judge and who saw some of the country’s best lawyers at work before him in the Supreme Court.
According to Rothstein the worst lawyers he saw at the Supreme Court were those that failed to fully understand the arguments of their opposing lawyers.
When I was a young lawyer, still learning my trade, a colleague told me that it was very important to be impartial. My first thought was: Why should I be impartial? I couldn’t imagine it because I thought my job was to argue as forcefully as possible for the position that was most favourable to my client. Wasn’t it up the judges to be impartial? Wasn’t it up the judges to listen to both sides and then decide? But that advice from my colleague always stayed with me and over time I began to think differently.
The real lesson is that to win an argument before a judge, you have to convince them not only that your argument is sound and supported by law, but that it’s better than the opposition’s argument. How is this done? You need to have credibility – if you have credibility they will listen to your arguments and if you don’t, they will tune you out instantly. And how do you establish credibility? By showing that you fully understand the facts and laws in play. And that means knowing the law and arguments that support both your position and the position of your opponent. I win when I am able to show that my argument is preferable to the argument of my opponent.
In other words, if you aren’t objective you will never have credibility. If you don’t fully understand your opponent’s arguments, you will never be able to convince a judge and win an argument.
And that’s why I say that it is always very important to listen carefully to the other side.