On submissions, scathing remarks, and sarcasm.

Mr S was convicted of assaulting and sexually assaulting his domestic partner. His domestic partner was the main witness at trial. Mr S appealed to the Court of Appeal in Alberta, Canada.¹

But this story isn't really about Mr S. It's about his lawyer, Mr M.

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The appeal papers included a statement of facts. The Court was less than pleased about some of the language used by Mr M. For example, Mr M attacked the complainant’s credibility as follows:

(a) "The lying complainant continued with her sworn, fabricated perjurious testimony."
(b) "Her ridiculous response follows …"
(c) "We mostly finish the evasive, argumentative, perjuring complainant’s evidence that afternoon."

The Court also referred to Mr M's repeated use of sarcasm as "a poor form of advocacy that is generally discouraged". Mr M's statement of facts included the following:

(a) "LTJ [Learned Trial Judge] then sees fit to offer to explain ‘the trial process’ to me...which was (and is) very much appreciated, given my gross and utterly obvious incompetence."
(b) "The poor ‘victim’ continues suffering through her oppressive interrogation by this very evil defence lawyer."
(c) "Then, I’m asked if I’m calling any evidence. The Court sounds entirely surprised by my choice not to … I’m told we’re adjourning precisely so I can re-evaluate my clearly deranged position of not calling any evidence … We return the next day. I confirm my obviously insane position of not calling any evidence."

Mr M also referred to the trial judge's decision as "appalling", accused him of "cherry picking extensively from the transcript to massage his inappropriate comments", and accused the Court of promoting a trend of "credibility-based wrongful convictions".

The Court of Appeal invited Mr S to consider whether he wanted Mr M to continue representing him. Mr S wished for Mr M to continue. The Court directed a new statement of facts to be filed, and for the appeal to be rescheduled on an urgent basis.

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There is a temptation to instruct your lawyer to go to town on the opposing party's credibility.² It may even be justified in some circumstances.³ But consider this: are you and your lawyer using such language because you think it is persuasive, or is it driven by a desire to vent your spleen?

And if it is the latter - is the Court likely to be the most receptive audience to such outpourings of passion?

I suspect that Mr S would be pleased with his choice of representation, and what he sees as dogged and passionate advocacy. I'm just not sure that the Court - who Mr S would ultimately have to convince - sees it the same way.

So, the next time you instruct your lawyers to amp up the language used in submissions, and your lawyers express reservations - there might well be a good reason for that.