A Young(ish) Litigator's Trip to the Supreme Court
Updated: Mar 14, 2019
Seven years before I had the opportunity to argue my first (and hopefully not the last) case before the Supreme Court of Canada, I was in Washington D.C. While I was there, I made it a priority to take a tour of the U.S. Supreme Court. As an aside, Washington is a beautiful city and it has the cleanest metro (subway system) I have ever been on. In any event, that trip started a kind of fascination for me with Supreme Courts everywhere in the world (but particularly the Canadian Supreme Court since I am a lawyer in Canada and but for a miracle, I will never be able to plead before the U.S. Supreme Court. Albeit, Rule 6(2) of the Rules of the United States Supreme Court technically allows for pro hac vice admissions for foreign lawyers, but I won't hold my breath that I'll ever get there...)
During the Spring of 2018, I argued the case of Mazraani v. Industrial Alliance on the rights of witnesses, lawyers, and parties to express themselves in the official language of their choice before federal courts. Given that the Supreme Court only grants leave to appeal in 8 to 10 percent of cases, and since most cases settle before ever going to a motion or trial, much less to the Court of Appeal, I figure that the odds of being able to argue a case there (and for a party in a civil case to boot over even the great fortune of arguing for an intervener) is about as likely as the odds of being struck by lightning. Many thanks go out to law firm and business partner David Milosevic for helping me get that case and for his awareness of my passion for language rights and identity cases.
With respect to the lead up to pleading before the Supreme Court, the feeling of it was quite surreal. In preparation for the hearing, I listened to dozens of Oyez Oyez audio recordings of US Supreme Court oral argument, and dozens of videos on the Supreme Court of Canada website of lawyers appearing before the Court. The Supreme Court of Canada has videos on its website going back ten years of all cases plead since 2010. Oyez Oyez has oral argument archives going back approximately 50 years for our American counterparts.
On the day of the hearing in Mazraani v. Industrial Alliance, I took a cab from the Elgin Hotel in Ottawa to the Supreme Court and met up with my colleagues David Milosevic, Caroline Garrod, and David Cassin. We went through a side entrance on the right hand side of the building that is reserved for counsel. Our names were on a list and you still have to go through security even though you are counsel (you can't just breeze past with your Bar ID card). You then walk down a corridor and take an elevator up two flights to the floor where the courtroom is. To the right of the elevator you walk in to the Registrar's Office and sign in with the Registrar. In fact, you check over a typed version of the spelling of your name on multiple occasions. One is then given a key to the robing room on the same floor to stow valuables away and to gown. Before the hearing begins a court clerk speaks with all counsel to go over the procedure and how the matter will proceed. And then you wait until the case is called at approximately 9:30. As I had been unable to sleep the night before I almost forgot to put on my tabs and came within about two minutes of appearing before the highest court in the land without them on (and with a not fully buttoned shirt). Fortunately Eugene Meehan of Supreme Advocacy noticed the missing tabs when coming to wish me well, and I rushed back to the robing room to put them on.
That issue of the tabs now resolved, and with the matter ready to proceed, all nine judges of the Supreme Court entered the courtroom. The justices seemed to be remarkably closer to the podium area then I had envisioned in my mind. I had one hour to argue for the appellant and then five minutes in reply after all of the interveners and other parties plead. The experience was all that it was cracked up to be and I really did enjoy it. The oral argument is almost conversational with justices posing questions throughout.
One practical tidbit: it takes a few questions from the justices before you pick up on where the voices are coming from. In other words, it is actually difficult at first to hear where the question is coming from with nine justices sitting so close together. But one gets used to it fairly quickly. At the end of the hearing the court clerks are generous enough to allow the lawyers and parties to take pictures inside the courtroom to savor the memory of the day. Without a doubt, it is an experience I highly recommend!