Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
I has been six years since I moved back to Canada after having lived in the U.S. for over a decade.
I learned how to be a lawyer in New York City. It’s not exactly like being a lawyer in Ontario.
One big difference that challenges me is the style of writing that is considered acceptable in court. I alternate between trying to adapt to the Ontario style and resisting change.
So what’s the difference?
It’s risky business to generalize. But in my experience in New York, lawyers were expected to provide citations for every fact asserted and every statement of the law in a written brief. Lawyers adopted abbreviated conventions given the inordinate number of citations required. A ten-page brief with 100 citations might be typical.
Citation requirements made the writing a bit choppy. Re-phrasing a judge’s words or a witness’s evidence to make it more readable might change the meaning, which the reader could easily pick up by comparing the sentence with the source at the end of the sentence. Lawyers used many quotation marks and tried to otherwise be faithful to the content they were quoting. Introducing a readable sentence without a cite was to be avoided because a sentence with no citation was mere interpretation, which could be disregarded.
It was my understanding that upon receiving a written legal argument, many judges would randomly cross-check a half-dozen or so citations to see if representations about the record and the law were substantiated or fair. Maybe that’s just my own romanticized idea of how judges would assess the credibility of my work. But as a young associate, I worked very hard to make sure everything I submitted to a judge was accurate. I remember once being mortified when a partner discovered I had used the phrase “severe asthma” when the words in the record were “moderate to severe asthma”. Luckily, it was only a draft of an opinion to a client, so there was no harm done.
The citation style in Ontario permits lawyers to inject far more interpretation into their legal submissions.
I just received a 23 page brief with a few dozen citations in it. The citation style is not abbreviated, so one citation follows several sentences of representations about the record.
The style of the brief is not unusual by Ontario standards.
My own style probably is. In the same proceeding, I submitted a legal brief just 13 pages in length, with double the number of citations of opposing counsel. I dropped a number of other citations I might have included to “fit in”, but I find it difficult to do what other lawyers do.
My experience with both citation styles leads me to conclude that insisting upon more citations better advances the search for truth. It is easy to misrepresent the facts or the law when there is no requirement for the lawyer to justify every submission as it is made. Citations also help the lawyer to self-sensor and avoid hyperbole.
Much as I prefer to live and practice law in Canada, I find myself longing for the more American style of writing I learned in law school.
I used to also miss the U.S. Postal Service, online shopping, and American cable TV. I am happy to report that I have since adapted to life in Canada on those fronts. Perhaps the same will happen with my citation preferences as time moves on.