As I said to Mr. Nice Guy (Michael Bodner) outside the courthouse one day, my take on the Government of Manitoba’s legal team was that they got handed a really sh*tty case. “I can neither confirm nor deny it,” he laughed. He doesn’t have to. I’ll do it for him. Legally speaking, they had zero legs to stand on.
So, what do you do when you are faced with this crap? As I stated above. I wouldn’t do it. I wouldn’t let my client take this path in the first place, and if they already had, I would have been trying to settle the hell out of the thing so that I wouldn’t have to be an orator in this exercise of public embarrassment.
However, governments tend not to be very good at settling themselves away from a political path that they have already taken, or listening to their lawyers, in-house and out. Pride, hubris, ego, and an attachment to power are the most common reasons. Whatever they were here, Heather and her team seemed destined to be stuck arguing this very bad case, no matter what.
When you are fixed in this type of jam, however, there are some things that you perhaps should never do, at least if you want to maintain some semblance of credibility and dignity, assuming that is something that is important to you.
One of the cardinal rules of advocacy is don’t overstate your case. That is, don’t give the facts or law a better characterization or interpretation than they actually have. Assume that the judge remembers what was said during trial, or that they will be diligent enough to go back and check. (And the last thing you want is for a judge to be fact-checking you and finding you wanting.)
Related to this is the even stronger corollary of – don’t misstate anything. Don’t say black is white, hot is cold, snow is brown, or that you’ll be finished your argument in 5 minutes (you’ll never finish that quickly, so don’t bother promising it).
The reason is, of course, that it is highly annoying for anyone listening to you.
When you are faithfully following the facts, anyone watching will be listening to understand, and if you are doing a good job, they will find the argument so persuasive that the only thing going on is a series of effortless internal nods – yes, yes, yes that’s what happened, yes, that’s what they said, so yes, I agree with you.
When you misstate the case, even a little, you create an additional conversation that runs simultaneously inside the listener’s head – What? They didn’t say that? Did they say that? They would never say that. I don’t think they said that. I’ll have to go back and check. Now what day was that?
That’s exactly what was happening to me throughout much of the Government of Manitoba’s argument – frowning in confusion as I mentally scratched my head. I was sure no one ever said this or that. And I was positive that there were many ways to prove it.
It was so confusing. And it’s so much work. Think about poor Justice McKelvey. Not only does she have to listen to all of this, as the trial judge, part of her job will be to go through each and every point the government made, and say why she approved or rejected them. (No wonder the judgement took 230 pages).
So, to all baby lawyers. Don’t do this. But for the purposes of this blog, this is what the lawyers for the Government of Manitoba did.