What experience in your legal career best prepared you for work on the bench?

Judging is an intense and multifaceted role. I have had the great privilege of enjoying many different roles throughout my career, and each prepared me in distinct but complementary ways for my work on the bench.

In my role as a law professor, I was called on to teach a wide array of topics — everything from torts and contracts to evidence and corporate law. As a junior professor, I was even assigned a course on personal property security law! By teaching in many diverse substantive areas, I not only learned a lot of law, I also absorbed a great deal about the mechanics and narratives of law and the characteristics of legal reasoning. I came quickly to appreciate just how much work is involved in trying to master a subject and develop an expertise. Teaching also helped me understand what was necessary to communicate information effectively and comprehensively. An instructor must stand before students and introduce in a limited period of time the subject matter, its relevance and the trajectory the course will take. As a teacher, it was important that I break down each semester week by week to determine what lessons needed to be delivered, at what stage, in what order and in what manner. I had to come up with an overarching theory that tied the disparate elements of the course together in a way that helped students retain the knowledge I wished to impart. I had to make sure that the students were being taught the legal skills they needed as well as the principles and values at stake. These communication skills remain useful to this day when sitting on the bench or discussing the law with counsel, my colleagues or clerks.

As a barrister at a criminal law firm and then a civil law litigation boutique, I learned about the practical and procedural aspects of the profession and how to make a case. I was required to marshal facts in a clear and convincing manner and to break down and present information to make it more accessible and persuasive. I realized that confidence, authority and legitimacy come from a deep understanding of the issues and this meant, above all, being very well prepared. I did the research and put in the time to think about how things fit together. I explored how to organize ideas and how to make an argument that appealed to high principle, but was still practical and simply made sense. I learned the value and importance of always trying to be many questions ahead, whether for my students, my clients, opposing counsel, judges, or, most pressingly, the people who appeared before me once I was on the bench. The tools I developed as a lawyer in preparing my files and structuring my work have proven to be essential when sitting as a judge. As a lawyer, at the outset of every trial, I distilled my case down to an overview sheet of what I had to prove to be granted the remedy I sought. While this overview was structured around the legal principles at play, it also contained a matrix of the evidence I would put forward to support my case and underpin my argument. I used the same structure to assist me when hearing cases as a trial judge. This framework still permeates my legal thinking, even when writing judgments at the Supreme Court.

My eleven years as a trial judge in both Alberta and the Yukon exposed me to every type of case, ranging from family disputes to criminal jury trials to thorny constitutional questions. I loved being a trial judge. Different judicial skills were required depending on the specific subject-matter of the case that was before me. But no matter the area of the law, judging at the trial level is a task which requires your full participation. In addition to motions, applications and trials, I was called on to conduct judicial mediations and preside over case management conferences. These were new skills that required equal parts emotional intelligence, analytical rigour and how to move things forward and get the job done. Constant adaptations were required to meet the particularities of each case and to ensure access to justice and fairness. My experience as a trial judge gave me a sense of the different facets of our work and how modern realities shape judicial processes. It also required me to make tough decisions between competing parties and positions. Knowing that in most cases one party will lose made me appreciate how important it is that the litigants feel respected and heard. It also meant dealing fairly with their arguments. As counsel, I was always disappointed when my argument was not dealt with at its full strength. Therefore, as a judge I wanted to avoid watering down an argument so it could be more easily dismissed.

As you can see, the knowledge and experiences that prepared me for my work on the bench were incremental and wide-ranging. No single experience was more important than the others, and I would encourage all legal professionals to seize every interesting opportunity that comes their way, no matter how varied. You never know where it might lead.

What advice do you have for counsel who appear before you?

The core characteristics of being a great advocate are timeless: preparation, communication, connection and adaptation.

First and foremost, preparation is key. There are many types and levels of preparation. An effective strategy is to focus on the following question: which points are so important that if you do not prevail, your argument fails? Answering this question requires a perfect mastery of the substantive law at issue. When you have mastered your file, you will come across as confident, no matter what is thrown at you. Advocacy also requires great organization and strategic selection. Despite the temptation to show all the work you’ve done, your goal should be to make everything seem effortless. For an advocate, developing a strategy means taking the time to sit with the materials and figuring out where you want to go, identifying how you’re going to get there and leaving clear signposts for the court to follow.

On appeal, the judges are well prepared as they have had the benefit of reading the parties’ written submissions before the hearing. Your time before an appellate court is thus an opportunity to repackage your material in a way that reinforces the arguments already put forward in the factum. It is important to recognize that different judges respond differently to specific arguments. The way the information is presented on paper, or the main argument on which emphasis is placed, is not necessarily what will convince every judge on the bench. Depending on the file, some might be more persuaded by an argument that is based on precedent, fairness or policy reasons. Your oral arguments allow you to make sure you have covered all bases and to present the material in a new light. Your oral submissions should not be a verbatim account of your written submissions. Success in this form of advocacy cannot be achieved through good writing and a succinct recitation of the facts alone, although clarity and conciseness are still essential. Instead, it depends upon your capacity as a narrator and communicator.

This leads me to my other piece of advice: connecting with the judges and adapting to their questions is key to ensuring your message resonates with the court. Consider what the judges need to hear to decide the issue instead of what you want to say. Put yourself in the decision-maker’s shoes. Your primary role is not to deliver a perfectly planned speech. It is to walk the Court through their decision-making process and to provide assistance. And when a judge interjects with a question or an observation, remember this: listening is different from waiting to speak. Focus on what the judge is actually saying; not what you are saying or what you had planned to say next. Questions from the bench are a gift and a glimpse. They give you the chance the re-center your arguments on what truly matters to the court and what the judges consider  essential to their decision-making process.

And of course, always be respectful to your colleagues and the court. Civility is key and makes the work easier for all involved. It allows judges to focus on the arguments and the advocacy, which is precisely what a good litigator wants the court to do.