Losing Tip #14: Openers and Closers

• Author: Marvin Catzman
• Pages: 315-318

Losing

Tip

#14:

Openers

and

Closers

Judges

are

always

reminding lawyers

how

important their opening

and

closing remarks

are in the

hearing

of an

appeal.1

This

may be

news

to

some lawyers

out

there,

but

experienced losing counsel learned long

ago

that opening

and

closing remarks

can

mean

the

difference between

defeat2

and

victory.3

They know that

an

awful

opener

or an

even

awfuller4

closer

can

help losing counsel stand

out

from

the

rest

of the

pack.

Chief Justice Gale

used

to

tell

law

students

that "the

first

three

min-

utes

are

free."5

In

saying that,

he

meant

the

court will listen patiently

to

Mr.

justice Marvin Catzman, Court

of

Appeal

for

Ontario.

See,

for

example,

the

article

by

Moldaver

J.A.,

"Boy,

Are

Your

Opening

and

Closing

Remarks

Important

In The

Hearing

of An

Appeal" (2003),

22:1

Advocates'

Soc.J.

29

(Summer

2003)

Which,

in

these

articles,

is a

Good Thing.

Which,

in

these

articles,

is the

Other Thing.

I

looked

for

"awfuller"

in the

twenty-volume

Oxford

English

Dictionary,

2nd ed.

(Oxford: Clarendon

Press,

1989),

between "awe-struck"

and

"awkward,"

but it

wasn't

there.

Although

it

does

not

appear

to be a

real

word,

it

certainly

should

be. I

used

"awfuller"

in

draft

reasons

for

judgment once,

but the

other

two

members

of the

panel

refused

to

sign

on

unless

I

removed

it, so I

did. This

is my way of

getting

even.

This

was,

of

course,

before time dockets were invented. Now, according

to the

costs

grid,

the

first three minutes,

on a

substantial indemnity

scale,

can

cost any-

where

from

$50 to

$75.

315

Justice

Marvin

Catzman"

i

2

3

4

5