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Thursday, April 06, 2000

Lawyers: make your case - but make it quick
Surviving the supremes
Neil Seeman
National Post

Earl Cherniak

"It's the fastest hour of your life," says Toronto's Earl Cherniak, Q.C., recalling his decades of experience delivering caffeinated orations to the nine justices of the Supreme Court of Canada. After an hour of argument -- and not a minute beyond -- a clerk of the court will politely but firmly instruct you to sit down. "Even fairly senior people like me are cut off in mid-sentence," says Mr. Cherniak, one of the country's top litigators. "When you're done, you're done."

Mr. Cherniak recalls once being asked by Antonio Lamer, the former chief justice of the Supreme Court, why the judges should be wasting their time listening to his plodding argument when they had just ruled the opposite way in a similar case.

Judge Lamer, who had sided with the court's minority in the earlier case, said, "Mr. Cherniak, I agree with you, but even I couldn't persuade my esteemed colleagues of the merits of your position."

To which Mr. Cherniak retorted, "and you, sir, had more than an hour to make your case!"

Levity is commonplace in the august courtroom, more so in Canada than in the United States. In the U.S., only those members of an elite coterie of senior lawyers, the so-called "Supreme Court bar," are allowed entry into the hallowed halls of legaldom. But in Canada, anybody who has passed the bar exam in any province can argue a case before the high court.

That can pose problems, said one former clerk to a Supreme Court justice on the condition of anonymity. He said that Judge Lamer once abruptly launched into a 20-minute tirade, during which he castigated the lawyers before him for not having a clue as to what they were talking about. Then, just as abrubtly, he stopped, apologized to all present, and gently instructed the proceedings to begin again.

Getting anybody to speak "on the record" about what really goes on in the Supreme Court can be onerous, because "if you ever want to be treated fairly before the court in the future, you can't be seen to be poking fun at the judges," said Ted Morton, a professor of political science at the University of Calgary.

But Ian Hunter, a professor emeritus at the University of Western Ontario law school, is not one to shy away from speaking openly about the Supreme Court. He remembers his first case before the high court as a debauched, frat-house affair.

"I was co-counsel during the 1970s with the late Walter Williston and John Sopinka [who was subsequently appointed to the Supreme Court]," said Prof. Hunter. "The night before our big case, we went out to a watering hole in Hull, Que., called Cafe Louis 9. Williston, though a superb litigator, had a terrible stutter. He kept ordering wine until late into the evening. Me and John left at closing time to prepare for the case the next morning. But Williston, who stayed much later and into the morning, showed up at court the next day and delivered an impeccable and lucid argument -- without one stutter during the entire hour."

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