The Argument of a Case at Trial

• Author: William J. Anderson
• Pages: 49-53

The

Argument

of

a

Case

at

Trial

Justice

William

J.

Anderson"

Speaking

broadly,

and

speaking relatively, cases

at

trial

are not

well argued.

I

say

broadly because there

are

certainly exceptions;

I can

recall

a

number

in the

last

ten

years.

I say

relatively because

effective

argument

on

motions, applications,

and

appeals

is not

nearly

as

rare. This criticism

is

not

based alone

on

experience

on the

bench

but

includes

a

preceding peri-

od

of

thirty years

at the

Bar, during which

I

must

confess

to

having been

responsible

for a

good many arguments

of the

rambling, ineffectual,

and

inconclusive kind that

I now find so

eminently distressing,

and

suscepti-

ble

of apt

description

only

in

language unsuited

to a

learned

periodical.

Before

turning

to a

cure, some analysis

of the

origins

and

nature

of

the

disease

is in

order.

On a

motion, application,

or

appeal,

the

argu-

ment

is the

main course.

It is

only

one

part

of a

trial, coming

at the end

and

preceded

by

other elements that take their toll

of the

time

and

ener-

gies

of

counsel

and may

seem more pressing

and

important.

The

date

of

commencement

of a

trial

is

frequently uncertain

and

often

comes sud-

denly

and at an

inconvenient time. Witnesses must

be

corralled

and

cos-

seted,

and

their putative knowledge

of the

events given

a final

review

and

testing. Pleadings develop last minute gaps

and

frailties.

All

this

before

the first

question

is put to the first

witness.

Mr.

justice William

j.

Anderson,

the

Supreme Court

of

Ontario.

49