appeals@appeal-law.ca    

 

 

WRITTEN ADVOCACY IN APPELLATE MATTERS

The most important component of any appeal is the factum.    Anyone who expects to attend the hearing of an appeal to simply “tell their story” and to make their legal argument without interruption is seriously mistaken.     That opportunity passes when the factum is filed.    The factum is the opportunity for counsel, particularly appellant’s counsel, to apprise the Court of the relevant facts, identify the issues, provide the salient features of the governing law, and to make a concise and effective argument in order to persuade the panel of appellate judges that the lower court erred.    For that reason, great care, and significant time, must be taken to draft an effective, persuasive factum.

The hearing of the appeal usually involves questioning by the panel of judges on  matters raised in the factum which require clarification or elaboration.   By the time the panel enters the Courtroom, the judges are, through their review of the facta and accompanying material, already thoroughly familiar with the facts of the case, and the parties’ positions on the issues.

In short, appeals are often won or lost based on the written material provided in advance of the hearing.

Anyone with doubt as to the impact of written advocacy may wish to review a letter of reference provided by an experienced litigator, Mr. John Harding of London, Ontario, following a successful appeal in the Court of Appeal for  Ontario.  Mr. Harding writes, in part:

 

My client was the defendant in the action, against whom a summary judgment has been issued in an action for payment and possession on account of a mortgage. It is my understanding that successful appeals against summary judgments are few and far between and are even rarer in mortgage actions.

Nevertheless, we proceeded with Mr. Peacocke's conducting all of the legal research and preparing all of the appeal material, including, in particular, the Factum.

Mr. Peacocke's work was so effective that, in spite of the success rate for summary judgment appeals, the court indicated at the outset of the hearing its preliminary view, based on Mr. Peacocke's material, that the matter was not the proper subject of a summary judgment, and indicated to the respondent's counsel that, while he could submit argument, if he wished to do so, it was up to him to decide whether he wished to do so. Therefore, the court proceeded to grant the appeal without hearing the Respondent's submissions. Nor did it hear any submissions by me beyond those included in the Factum. It was Mr. Peacocke's  Factum which won the day.

            [to review the Mr. Harding’s complete letter, click here]

 

Our firm has drafted many successful facta over the years.   You may click here to view  five samples.