July 4, 2024
“The purpose of the trial is to build a good factual record for the appeal.”
So said a local judge at a long ago continuing professional development course (the quote is approximate).
His point was that novel arguments of law seldom work well in front of a trial judge and are more likely to succeed at the Court of Appeal. The work of trial judges is mainly about sorting out the facts, and where there are factually disputes, making “findings of fact”.
In building that good factual record, it is important not just to have a consistent theory running through the case supported by sound admissible evidence. It is vital to win rulings on evidence and disputed facts.
Why is that?
In Ontario, our Court of Appeal is very reluctant to interfere with or second guess a trial judge on findings of fact, or rulings on the admissibility of evidence (unless there is clear error of law).
This is what is known as showing deference to the trial judge- if they have done their job, the appeal judges will not reconsider the facts.
This is true even if the trial judge’s reasons are not completely clear, as long as the Court of Appeal can follow the reasoning and see that the correct law was applied.
We increasingly see this in recent Court of Appeal decisions. The standard of review is correctness only on issues of law. Findings of fact, or rulings on evidence, just need to be reasonable and supported by the evidence. In reviewing these items, the appeal court will give the trial judge’s reasons the benefit of the doubt.
This is why you should never assume that you will succeed at appeal if you lose at trial. Trial is your best shot at winning. You need your story told in a compelling fashion that simply happens to dovetail with the law.
As is often said, trials are 90% about the facts and only 10% about the law. Appeals however are the same, but the facts are a more certain story.
The moral of this story is that you need to invest time, energy and money in telling your best story at trial,
At Weilers LLP we know that a skillful lawyer is a good storyteller. No wonder so many lawyers become novelists like John Grisham or Scott Turow.
We may never write a best seller, but at Weilers LLP, we continue our proud tradition of emphasizing the art of advocacy. We know how to appreciate the best theory for your case, and to weave the strands of evidence into a compelling tapestry. We know and think about rules of evidence, and how to best prepare your case from the day it arrives in our office. Though we enjoy doing appeals, our goal is always to win at trial (or avoid trial), not just to build a good record for an appeal.
If you want Weilers LLP to tell YOUR story, give us a call and see if we are the right lawyers for you.