December 11th, 2012 by

Recently, I had my first contested motion.   I’ll save you the suspense, I got my butt kicked.  But, as with everything else I’ve done at DSF, there was much to be learned from this experience.

The non-exhaustive list of takeaways, in no particular order, is as follows:

  1. 1.  The drive to Cobourg Superior Court is much shorter than the drive home, particularly so, after you’ve lost;
  2. 2.  A judge that asks no questions during submissions is just as challenging as a judge that asks many questions, even if that seems counter intuitive at first.  In this instance, I had the former so allow me to explain. 

As the non-moving party I had the benefit of hearing the submissions of my friend (not sure how many of you know that that’s how lawyers refer to one another before a judge, which is slightly different from the United States vernacular where lawyers refer to one another as brothers and sisters) whom I felt gave a succinct and reasonable position.  I knew it was my turn because the courtroom suddenly fell silent and the judge turned his gaze squarely toward me. 

I began by thanking my friend and submitting that my position was not remarkably different from hers, rather the difference was slight or negligible.  I thought this was important to do because I wanted the judge to feel as though a ruling in my favour could be achieved notwithstanding he accepted most of her submissions.  I then turned my attention to my main issues.  Then I rambled on about something or the other.  And then I may have rambled on some more.  My entire submission only lasted 3 or 4 minutes, but it felt like much longer than that.  And therein lays my point.  Without a judge interacting and putting questions to me, it was difficult to gauge how much time to spend on each issue, whether I should have refuted my friend’s submissions, or, most importantly, where the judge stood on any or all of the issues before him.

After briefly considering both sides, the judge decided in favour of my friend.  I was unhappy to be sure.  The worst part was that I had my whole drive home to second guess everything I had said…

Outside the courtroom I briefly stopped and chatted with my friend.  She was incredibly gracious and professional in her victory; I wish the same could be said of me….In any event, in this post’s on-again-off-again something extra segment, I would like to leave you with some words of wisdom that my friend imparted on me during our chat…she said not to worry, when she was an articling student she didn’t win a single motion, you read that correctly, not a single motion, but she assured me it would get better, you see this is all part of the rite of passage…


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