Losing Tip #10: When the Law is Dead Against You

• Author: Marvin Catzman
• Pages: 301-303

Losing

Tip # to:

When

the Law is

Dead

Against

You

What should

you do

when

faced

with

a

recent decision

of the

Supreme

Court

of

Canada,

on

facts

identical

to

those

of

your case, that

is

dead

against your position?

To

experienced losing counsel, this situation presents

no

real chal-

lenge.

First,

just

in

case your opponent

is

unaware

of

this authority,

be

sure

to

refer

to it,

early

and

prominently,

in

your

factum.

Remember

to

add

citations

to all of the

twenty

or

thirty

law

reports

in

which Supreme

Court

of

Canada cases

are

currently

reported.1

Second,

show your disdain

for

this case

by

noting

an

unreported

decision,2

directly

on

point,

of a

master

of the

Alberta Court

of

Queen's

Mr.

Justice

Marvin Catzman, Court

of

Appeal

for

Ontario.

This

is

critical.

For all you

know, budgetary restraints

may

have

compelled your

judge's

law

library

to

drop

its

subscriptions

to the

Supreme

Court

Reports.

But it

undoubtedly

will

have

maintained

its

subscriptions

to

such

essential

topical reports

as

the

Left-Turns-on-an-Orange-Light

Reports

(the

"LT.O.LR.s")

and the

Cases-

Decided-on-a-Tuesday

Reports

(the

"C.D.T.R.s").

You

just

never

know

for

sure.

Unreported decisions

are

getting

harder

and

harder

to

come

by.

These

days,

every-

thing

is

reported.

The

electronic

reporting

services

are

crammed

with

reports

of

every

word that dropped

from

the

judge's lips, including

the

order

she

gave

to the

waiter

at the

restaurant

around

the

corner

from

the

courthouse when

the

trial

she

was

conducting

broke

for

lunch.

301

Justice

Marvin

Catzman"

i

2