Appellate Advocacy

• Author: John Sopinka
• Pages: 179-190

Appellate

Advocacy

Justice

John

Sopinka*

During

the

twenty-three years that

I

practised litigation,

I had

many

appeals,

and I

thought

I

knew

the

subject well. However,

after

my

expe-

rience

on the

bench,

I

know that

I was

looking

at it

from

one

perspec-

tive,

that

is,

that

of

counsel.

I

tried

to put

myself

in the

judges' shoes,

but

since

I

have been

on the

Supreme Court

of

Canada,

I

have decided that

I

did not do

that

very

well.

I

have revised

my

thoughts

on

appeal

advoca-

cy

to

reflect

the

different

perspective that

one

gets

from

the

bench.

The

Decision

to

Appeal

The

first

aspect

of an

appeal

is the

decision

to

appeal.

In

many cases that

decision

is

purely tactical.

In

other words,

you do not

expect

to

win.

You

may

appeal

in the

hope

of

forcing

a

settlement.

What

I

have

to say

does

not

apply

to

that kind

of an

appeal.

My

comments apply

to

appeals

"on

the

merits."

An

appeal

can be

very costly,

and the

client

looks

to you for

advice

as

to the

chances

of

success. That advice should

not be

given

the day the

judgment comes down,

as the

decision could

be

made

in

anger.

You

should take

a few

days

to

regain your composure

and

then

consider

the

Mr.

Justice

John

Sopinka,

Supreme

Court

of

Canada.

179