“The famous American trial lawyer, Louis Nizer, once wrote that ‘[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.’ This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart.”[1]
In the case of Alsawwah v Afifi, a motion was brought for exclusive possession of the matrimonial home. Despite the fact that the motion only dealt with this one issue, Justice Kurz observed that one of the parties chose to “attack the other’s character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match.”[2]
In response and albeit to a lesser degree, the other party who originally refrained from this type of “advocacy” felt the need to respond in kind in his reply materials. In this context, Justice Kurz described the oratory in the materials as excessive, distracting, unnecessary and unhelpful in resolving the sole issue in the motion. As a result, under the section titled “A Word or two About Rhetorical Excess in Family Litigation,” Justice Kurz dedicated an entire part of his decision to sharing words of wisdom about advocacy, which are meant to assist parties, counsel and the profession.
At paragraph 108, and “in the hopes of lowering the rhetorical temperature” of future materials, Justice Kurz repeated “essential facts, often stated by [his] colleagues at all levels of court, but which bear constant repetition.”[3] These essential facts serve as an important reminder and words of wisdom about the art of good advocacy. Quoting Justice Kurz, they are as follows:
- Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
- Nor are we swayed by rhetoric against the other party that verges on agitprop.
- Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
- Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
- Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
- Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
- A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
- Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
- Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
- One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
- While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.[4]
Justice Kurz clarified that these comments should not be construed as minimizing the type of “resolute advocacy” that is often valued, necessary and expected of the best lawyers. Instead, they are words of caution that “rhetorical excess is the enemy of good advocacy.”[5] As a result, it is important to remind parties, counsel and the profession that the lawyer’s “role as advocate should often be as rational counsel not flame-throwing propagandist.”[6] To be a great advocate, it is crucial to keep these words of wisdom on the dos and don’ts of strong advocacy in mind.
[1] Alsawwah v Afifi, 2020 ONSC 2883 at para 1 (Alsawwah v Afifi).
[2] Ibid at para 2.
[3] Ibid at para 108.
[4] Ibid at para 108.
[5] Ibid at para 109.
[6] Ibid at para 107.
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