Advocacy in the Court of Appeal: One lawyer's perspective

• Author: Paul J. Pape
• Pages: 257-265

257

g Winter 2009

Avcacy in the Curt f Appeal:

ONE LAWYER’S PERSPECTIVE

PAUL J. PAPE

In preparing to appear in the Court of Appeal and, for that matter,

in any court, my goal is winning, pure and simple. I try to craft an

argument that will convince the panel to nd in favour of my client.

How the court nds in my client’s favour is of limited interest to me;

only results count.

How, then, does one craft a convincing argument? I have always been

guided by Professor Charles Nesson’s approach to this problem. Professor

Nesson is the William F. Weld Professor of Law at Harvard University Law

School and the founder of the Berkman Institute for Internet and Society.

He teaches evidence and tort litigation. Nesson has said that the way to win

an argument in court is by telling a short story which will convince your

mother1 of the righteousness of your position. If you cannot persuade your

mother, you certainly will not persuade the court.

Nesson’s focus is rst on the auditor. If you imagine your mother as

your adjudicator, it becomes easy to prepare an argument in the way I sug-

gest. Selecting her implicitly recognizes what he and I believe: judges are

swayed, inuenced and governed by the same considerations as ordin-

ary people. Judges come to their task with a sense of humanity and jus-

tice. Just like your mother. Taking the oath does not change this. Judges

1 I have maintained Nesson’s choice of parent, notwithstanding that some might see

it as biased. I refer to “your mother” here because, to my mind, she is reasonable,

humane and has common sense. Your father does not have these qualities.