Finishing second isn't always bad. In the Olympics, second place will get you a silver medal and a place on the podium for your troubles. Sure, a few meddlesome friends or annoying relatives might ask “why didn't you come in first?” But there's no doubt that silver is a major achievement, worthy of acclaim.
But in litigation, there are no medals for second place. If you come in first, you're a hero. If you come in second, you're a zero. And the winners and losers can sometimes flip flop as cases work their way through the courts. So, when it comes to Canada's highest court, how can you maximize your chance of avoiding second place?
While there's no hard-and-fast formula for winning cases at any level of court, we suggest that the recipe for maximizing your chance of success has three ingredients: the right case, the right team and the right argument.
The right case
Not every case is right for the Supreme Court of Canada. For the Supreme Court to grant leave to hear a case, it must be of sufficient public importance to justify the Court's intervention. That means that if a case turns primarily on questions of fact, is based on a point of law that has been settled for a long time or recently re-affirmed (so that there is no reason for the Court to weigh in), or has no real application beyond the immediate interests of the parties (so is not a matter of public importance), then it is unlikely to be of interest to the Supremes.
A Supreme Court appeal is a 40-page factum and one hour to shape and change the law. There is a lot riding on every word.
But even if you have a case that the Court might be interested in (such that leave to appeal may be granted), that does not necessarily mean you should ask them to hear it. You also need to assess whether this is a case where the Supreme Court is likely to help. Some cases have interesting legal issues but unfavourable facts or are on the wrong side of public policy. While trial or intermediate appellate courts apply settled law to bad facts, that does not happen at the Supreme Court. Rather, the Court decides cases largely based on two factors: the justice of the case in front of it, and the policy implications of shaping the law in a particular direction. If you don't have either of these, do not seek leave, unless you are prepared for yet another silver medal—and a negative judicial precedent of potentially broader scope for your issue or industry.
The right team
Picking an effective Supreme Court team is critical. The job of a Supreme Court advocate is unique in our profession. A Supreme Court appeal is a 40-page factum and one hour to shape and change the law. There is a lot riding on every word.
All litigators are storytellers, but they tell different stories in different forms. Trial lawyers are the author and the lead actor in the unfolding drama. They use language, rhetoric and strategy to present the story in a legally and morally compelling fashion, appealing to judge or jury's common sense and human experience. There's a reason why courtroom dramas all take place at trial: that's where the dramatic moments invariably take place.
Appellate lawyers are not authors or actors. They are critics. They look and listen to what happened on the stage, and then talk about what went right and (more often) what went wrong. On appeal, the facts are the props and the scenery, but the narrative is all about the law. Appellate lawyers therefore traffic in law and precedent. Their role is to remind the appellate court of what it needs to know in a way that makes their client's case on the law easy to understand. As a result, on appeal, written advocacy often takes the place of in-court dramatics.
The best arguments at the Supreme Court start with policy, explain why existing precedents advance that policy, and how the law can be developed to advance that policy even further.
The role of the critic still looms large at the Supreme Court, but with an additional layer: at the Supreme Court the crux of the job is to be able to contextualize the story and its criticism into the bigger picture: where has the law been, where it is going, and how should it change. The Supreme Court is interested in the dispute before it today but is often more focused on where this case fits into the legal arc that will carry on for a decade or longer. The Court does not enforce precedent, it creates it. Supreme Court advocates focus on the impact of the current case on the future law, not ensuring that it is decided consistently with the past.
A Supreme Court team that understands to whom it is appealing, and how that body thinks and works, gives a party an enormous advantage. The ideal counsel has been to the Court before, understands the judges, knows how to synthesize past law and can help the Supreme Court refine and reshape it in a way that results in a win. Marrying these skills together, in sufficient brevity, is difficult, but it takes more: Supreme Court wins are built on telling the Court a legal or policy story that it can get behind. Supreme Court counsel must be able to answer the tough questions and grapple with all of the policy implications of your argument—the good and the bad. Picking the right team for your Supreme Court case may mean the difference between silver and gold.
The right argument
Working out the right argument for the Supreme Court means identifying the legal and policy argument that is most likely to influence a majority of the Court in your case.
What does the right argument look like? The best arguments at the Supreme Court start with policy, explain why existing precedents advance that policy, and explain how the law can be developed to advance that policy even further, in a way that is compelling and helpful to your case. “Here's what this area of law is intended to accomplish, here's what it currently does and does not accomplish, and here's what it could accomplish if you decided for my client” is the general narrative.
But the devil is in the details: how can you show the Court why your policy goals are the right ones? How do you demonstrate the shortcomings (or benefits) of the current rule? In an ideal world you say, “look at my facts—they tell you that what we have right now is (or is not) working.” But if you are not lucky enough to have those facts, then you need to start hypothesizing about the facts that would only be decided correctly under the rule that you are suggesting. Because if you don't, you can be sure that the judges will.
This is hard. Knowing the Court is critical. Placing your argument in the larger context of the Court's jurisprudence allows you to control the narrative, comfort the Court that the precedent it sets is moving the law in the right direction, and win the case.
Conclusion: winning isn't everything, it's the only thing
There is no greater satisfaction than watching everything come together before the Supremes on your case's final day in court. While there's no way to make sure that you come home with gold, the right case, the right team and the right argument is the formula to maximize your chances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
