Advocacy in jurisprudential Appeals

• Author: Rosalie Silberman Abella
• Pages: 267-281

Advocacy

injurisprudential

[Editors'

note: This article

is the

edited text

of the

keynote address

given

at The

Advocates' Society

Fall

Convention

in

Montego

Bay,

Jamaica,

on

15-18

November

2001.]

The

theme

of

this article about appellate advocacy

in

jurisprudential

appeals

is a

simple proposition:

it is not

just what

you

say,

it is

also

how

you

are

heard.

This article

is a

direct descendant

of all the

advocacy articles whose

collected wisdom urges advocates

to

write, speak,

and

think

clearly;

be

pre-

pared;

weave

the

story together with interesting threads;

and

make

the

punchline seem irresistible.

I

agree with

all of

this

advice. With

one

caveat.

Most

of the

articles

I

read

on

appellate advocacy adopted

the

metaphor

first

cast

in a

1940

article

on

appellate advocacy

by an

Ameri-

can

lawyer, John

W.

Davis.1

He

said appellate advocacy

is

like

fly-fishing.

Lawyers

were

the

fishers

and

judges were

the

fishees.

I

confess that this

metaphor bewildered

me. I

knew from

the

movie

A

River

Runs

Through

It

that

in fly-fishing, you

stand

in the

water

for

hours hoping

to

catch

a

fish.

This,

I

said

to

myself,

is not

going

to fly in an

appeal

court

like

Madam

Justice

Rosalie

Silberman

Abella,

Supreme

Court

of

Canada.

John

W.

Davis,

"The Argument

of an

Appeal"

(1940),

26

A.B.A.J.

895.

267

Appeals

Justice

Rosalie

Silberman

Abella

i