Mourning the loss of oral advocacy | Gary Joseph

Gary Joseph

Recently many lawyers have been reflecting upon the place and future of oral advocacy in our changing world. Even before the COVID-19 crisis hit we have seen a gradual erosion of the time-honoured tradition of oral advocacy supplementing the written word. Countless academic and practical journals have been written on the subject and practical courses abound for those who wish to improve their skills.

In my mind, and I confess to this rather indulgent view, courtroom skills are for the most part inherent, born-in talents but I do acknowledge that basis skills can be taught and certainly improved by reading and practice. Having said this, I then confront the fact that these skills for which I so respect may become obsolete or if not, of much diminished importance in the legal professions in the years ahead.

During the course of my career I have seen courts increasingly move away from oral advocacy. The Supreme Court of Canada now only processes leave applications based upon written materials filed. Motions for leave to appeal from the interim decisions of justices of the Superior Court to the Divisional Court are restricted to written facta and motions for leave to appeal to the Ontario Court of Appeal from a decision of a Superior Court justice sitting on appeal of a decision of the Ontario Court of Justice or an arbitrator are in writing. Since COVID-19, the Ontario Court of Appeal has been “hearing” an increasing number of appeals in writing. And so it goes. ...

As we move forward in the present COVID-19 era we may see an increase in this movement away from oral advocacy. In-person hearings are presently either not available or not encouraged. While virtual court exists, it is not, in my view, a replacement platform for true oral advocacy although I concede it is better than first expected. The further elimination of oral advocacy may fit with what is expected to be future fiscal restraint. Less dollars available for courts, staff and judges may further this movement.

I remain convinced that the loss or reduction in oral advocacy is highly regrettable. There is not an advocate in practice who has not experienced that wonderful moment when the face of the adjudicator signals acceptance of the submissions you are making or when the weight of your advocacy turns the views of the adjudicator in your favour. If not this, then, I promote that oral advocacy forces thought and reflection in the adjudicator even if the ultimate submission is rejected. Oral submissions tend to expand the scope of thought and review. There is not a court advocate who has not sat listening to the opposite counsel’s submission and paused to consider an interesting argument or a view not previously considered.

We are all in need of the human interaction experience. Courtroom oral advocacy is one such experience that will sadly missed (by this writer) if it is replaced by (only) the written word. I long for the day when I can begin to practise law again in my courtroom robes on my feet making submissions rather than in my pajamas in my home office.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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