Appellate Practice Definition
Appellate practice is a growing area of specialization in Canada. Appellate practice refers to having carriage of or advising on appellate work. Traditionally, trial lawyers did their own appeals. As lawyers continue to specialize, some litigators prefer not to do appeals. In addition, clients see the advantage of having appellate experts provide advice on or take carriage of appeals, particularly after unsuccessful results at trial. There is a perceived benefit to having objective, specialized practitioners assist with this work. Arguing before a trial judge or jury, and conducting examinations of witnesses, are now considered to require different skill sets than arguing, in writing or orally, an appeal. Appellate practice refers normally to appeals in the provincial courts of appeal, the Federal Court of Appeal and the Supreme Court of Canada, including leave applications. Appellate practice relates to specialization regarding a particular type of proceeding as opposed to a particular subject. Appellate advocates are experts in appellate procedure, legal writing, oral advocacy before a panel of judges, and standards of review of judge’s decisions.
Arguing an appeal involves dealing with the case based on a fixed evidentiary record. It is only in rare instances that courts of appeal will entertain fresh evidence. Appellate practice involves putting together the appeal record and drafting the written argument, or factum, for the appeal. These steps are required in order to “perfect” the appeal, or to have it ready for argument. The respondent to the appeal will then file a responding factum. Appellate counsel have to be aware of the specific timelines associated with these tasks, which can be fairly condensed. Once the appeal is perfected, it is scheduled for an oral hearing with time limits normally assigned by the Court. Counsel for the appeal then argues the appeal in front of a panel of judges, normally three for courts of appeal and seven or nine for the Supreme Court of Canada. When counsel are attempting to overturn a court of appeal’s previous precedent, it is normally necessary to request that a five judge panel hear the appeal. Motions in courts of appeal are normally heard by a single judge. The majority of appeals are unsuccessful, meaning a premium is placed on appellate counsel who can advance concise and convincing arguments based on the record that exists. Appellate practice requires strong written and oral advocacy skills.
The majority of appeals to provincial appeal courts are as of right, but some appeals require to leave from the Court before the appeal can proceed. Leave is required for any appeal to the Supreme Court of Canada. Leave to appeal is normally determined based on paper record, without oral argument. At the provincial level, the test for leave normally requires conflicting decisions and/or an issue of importance. At the Supreme Court of Canada, the test for leave to appeal is a matter of national importance. As a result, the majority of appeals heard by the Supreme Court of Canada involve constitutional or administrative law issues, which tend to affect all of Canada. The Supreme Court of Canada grants leave for a very small proportion of leave applications, meaning it is difficult and rare to get leave. Generally, leave to appeal is normally only granted for legal issues, not factual issues, which tend not to be of general importance and for which the standard of review is very deferential.
Brian N. Radnoff