A senior counsel at Borden Ladner Gervais LLP, Pratte is known as a leading litigator who has appeared at all levels of court, advocating in high-profile cases. But that doesn’t mean he’s done learning about the profession.
Ultimately, Pratte is doing a podcast because he doesn’t “know the answer.”
Guy Pratte, Borden Ladner Gervais LLP
“I hope that people will follow the podcast and listen to some of these pretty brilliant people in different fields and hopefully, they come to a deeper understanding of what they do. I’m sure tons of people have the same passion for the art of persuasion as it’s practised in courts,” he added.
For years, Pratte has been recording fireside chats with leading advocates and judges across Canada for “the simple reason” of wanting to hear their insights.
“Even when I was a younger lawyer,” he said, he “would have loved to have been able to listen to the thoughts, and reflections, and insights of the people who were considered to be great advocates and judges” when he started to practise law in the early 1980s.
However, a record of those who had gone before “didn't exist anywhere,” as far as he knew, and now “many of those people have passed away” and so the opportunity has been lost.
Pratte wanted to create a “repository of these insights from these great people, so that there would be a surviving place” for their ideas to exist.
“And then I thought, a podcast seems to be such a modern tool that allows us to do that,” he told Law360 Canada.
Pratte was inspired to start the podcast because he was “interested in understanding and exploring the art of persuasion as a subject with lawyers” and judges, but then realized it would “be even more interesting” to “explore the art of persuasion much more broadly.”
“Lawyers, advocates are a bit presumptuous when we think we’re the experts in persuasion, when in fact almost everybody in their own professions or occupations are involved, in one way or the other, in persuasion: politicians and marketers, parents, teachers, preachers, actors,” he explained, noting that he’s chosen a variety of people from different vocations to speak about the art of persuasion as it applies to them.
The podcast includes conversations with eight people, two of which are lawyers. The speakers list includes such luminaries as criminal defence lawyer, Marie Henein; Canadian actor, Colm Feore; former prime minister Brian Mulroney; and barrister and member of the House of Lords of the United Kingdom, Lord David Pannick.
When considering the theme of the podcast, it seemed natural to Pratte to speak to an actor because he’s “always been fascinated by how a good actor” can “create this illusion” that “they’re not who they're supposed to be.”
“I’m just fascinated by how that transformation occurs where you suspend disbelief, and you enter their world,” he said, noting that in his conversations with Feore, they talked about “how he learned the art of acting and why sometimes it works, sometimes it doesn’t work.”
“He says it’s a bit of a contract with the audience,” Pratte said, noting that people will be interested in what Feore brings to the discussion.
“But, I’ll tell you frankly, I don’t know, at the end of the day,” what “I’m going draw as an overall conclusion,” Pratte added, noting that he’ll reflect on that once the podcast recording is done.
“That’s why I’ve actually entered into the project; because I didn’t know the answer. I didn’t know when I spoke to Mr. Mulroney, for example, where we talked about his interest in politics, and law, and business, but also how he would approach a controversial issue like free trade and try to persuade Canadians it was the right thing to do. Or on apartheid, [when he] tried to persuade Margaret Thatcher that sanctions on South Africa were appropriate,” he explained, noting that he’s interested to explore the theme of persuasion throughout.
The past three years have brought immense change to the legal profession as the pandemic flipped in-person hearings to virtual with courts turning to Zoom to keep the wheels of justice turning. Has the art of persuasion been lost in the transition to a virtual platform?
Pratte says the “views on that are extraordinarily divided; both among lawyers and among judges.”
“Some lawyers love virtual, and so do many judges. Others, and I’m more in the latter group, think that it’s not, generally speaking, as effective as in-person attendance,” he said, acknowledging that “virtual appearances have allowed the system of justice, and particularly court and court hearings, to continue.”
“I think no one, when we were faced with this problem in the spring of 2020, could have believed that we could do so much, so well, in the following three weeks or three years, as the technology allowed us to do,” he added, emphasizing that “for the longer term,” however, he believes most cases would benefit from in-person appearances.
“There’s something that happens in a personal setting that simply does not happen on the screen,” he said, drawing attention to world leaders who chose to meet in person to discuss relations and world events.
Why did U.S. President Joe Biden come to Canada when he could have met with Prime Minister Justin Trudeau on screen? Pratte asked.
“And remember, when President Zelenskyy, at great risk to his life, went to Washington to speak to the [U.S] Congress? You could have done that all on Zoom,” he said, stressing the significance of being in person for important events.
“To my mind, the justice system for most people, most clients, it’s one of the signal events in their lives and it gives it more weight, and significance, and decorum if you have everyone in the same room trying to resolve a problem. If you can’t do that, of course, it's better to do this on Zoom then not having the case at all or doing it in writing. But for some events, I think in our lives, underscoring their importance by requiring personal attendance gives it weight, it's more effective,” he explained.
Pratte noted that when he was president of The Advocates’ Society, the association conducted a “big report on the future of oral hearings and advocacy,” which also underscored the importance of in-person hearings.
During the start of the pandemic, Pratte and his wife would have dinners over FaceTime with their friends. He noted that even though “the same words can be said, the same clothes can be worn, even the same food can be cut, [it's] different” when it’s on screen.
“There's a richness to life, which can only be appreciated in person,” he said, noting the same feeling applies to court.
“When things matter, I don’t think one ever wants to question whether things could have been different if you’d been there in person in a court case, for example. It gives it meaning, it gives it weight, for me anyway,” he added.
Although Pratte believes there’s more gravitas to an in-person hearing, the fundamentals of advocacy, no matter the platform, remain the same.
“Obviously, being able to master the technology and remember to look at the screen,” are important, he noted, but they are “technical things that are not very difficult to master.”
“I think that the key elements of successful advocacy,” at least in terms of his own practice, is preparation.
“I still think that preparation is the key and what to prepare. One thing I have learned and have tried to put in practice more in the last 10 years,” he said, especially in terms of appellate advocacy, is “try to anticipate every question and foible in my case in advance.”
Pratte explained that judges will challenge you and to “wait to hope that you're so fleet footed that you can always answer as well as you could have had you prepared for the question is” unwise.
“It would be foolish for me to think I’m so intelligent that I can answer every tough question even if I've thought about it before. And so, I invest an immense amount of time in two things really: in writing my argument, even though I’m never going to deliver it, as I’ve written it, but in structuring it. And then the second thing is to try to anticipate every possible question that I might be asked, and I actually write the answers,” he said, acknowledging the team of people he’s fortunate to work with on these exercises.
“I think that if you do that regularly, you might be successful from time to time,” he added, noting that even more importantly is the trust you build with the court.
Pratte believes that trust is the “most precious commodity in every interaction in life.”
“It's just amazing, when I speak to judges informally and they say, 'so-and-so is a great advocate.' They don’t mean style necessarily. They might say, ‘well, you know, the person speaks so clearly.’ But what I think they really mean is that they have complete trust in the candour of the advocate, in the fact that they will give them the best possible answer to difficult points,” he stressed, noting that that asset of trust is “built over time” and can be “lost overnight.”
“It’s just so precious and when you think about it,” he said, drawing back to the art of persuasion and noting trust is also cultivated in other occupations.
“Why do you believe a politician? Well, because you trust them. You trust them because overall in their career they have been truthful and courageous. The same as actors, if they’re able to portray and trust in the character that they’re trying to depict then you follow along,” he explained, emphasizing that the key thing for advocates to remember is “that relationship with the court is built on trust, and you can’t serve your client better than by making sure that that relationship of trust is always increased and never threatened.”
The Art of Persuasion will be available on guypratte.com as well as popular podcast apps as Spotify, Google Podcasts and Apple Podcasts.
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