Appellate Advocacy

• Author: Sydney L. Robins
• Pages: 191-202

Appellate

Advocacy

Justice

Sydney

L.

Robins"

[Editors'

Note:

The

lecture that constitutes this article

is one of the

two

David

B.

Goodman

Memorial

Lectures

delivered

by Mr.

Justice

Robins

at

the

Faculty

of

Law, University

of

Toronto,

in

February

1995.]

John

W.

Davis,

one of the

great American masters

of

courtroom

advoca-

cy,

once suggested

in a

lecture

on the art of

advocacy

that this

was a

sub-

ject

to be

presented

by

judges. "They,

after

all,"

he

said, "are

the

target

and

trier

of the

argument. Who,"

he

asked rhetorically, "would listen

to

a

fisherman's weary discourse

on fly-casting if the fish

himself could

be

induced

to

give

his

views

on the

effective

method

of

approach?"

Today

I

offer

you

some reflections

of one of

those

fish.

Let

me

begin

by

saying that

the

importance

of

advocacy

in the

appellate

process should

not be

underestimated. True, there

are

appeals

that cannot

be

lost,

and

others that cannot

be

won, regardless

of the

skill

or

learning

or

persuasive powers

of

counsel.

But

appellate

advocacy

can

play

a

substantial,

and in

some cases

a

decisive, part

in

determining

the

outcome.

The

argument

of

appeals should represent

an

exercise

in

forensic

skill,

and

counsel should prepare

on the

principle that

it is of

high,

and

often

of

controlling, importance.

Mr.

justice

Sydney

L.

Robins,

Court

of

Appeal

for

Ontario.

191