by The Honourable Mr Justice Malcolm D Macaulay

Supreme Court judges are constantly writing decisions, or preparing oral rulings or decisions. Counsel and litigants reasonably want, and expect to receive, decisions that are timely, focused, and clear. Some of the time, some judges meet expectations, but undoubtedly not all judges all of the time. This article suggests how lawyers can help judges meet lawyer’s expectations.

Timeliness of judicial decision making is subject to obvious factors such as the individual judge’s case load and available time to reflect and prepare. Those factors are ever present realities and beyond lawyer control. The aspect of timeliness that lawyers can impact is the time it takes the judge to understand and determine the issues. If counsel presents an unfocussed, or unnecessarily complex, case or argument, judicial time is spent sorting, analyzing and discarding the irrelevant or unnecessary aspects of the case. This does not advance timely decision making nor does it assist in helping judges meet the other expectations. Instead, timeliness is more likely to be advanced by the lawyer self-imposing these expectations first. In that way, there is a much greater likelihood that the result will meet expectations.

It requires hard work to be focused and clear. It requires more than copying several case authorities that relate in some fashion to the issues, and then handing them up without first analyzing what is needed and why, in the hope that the judge will later extract something favorable. A small number of counsel proceed in this fashion and then likely wonder why the judge failed to extract anything significant, let alone favorable. If lawyers take the time and make an effort to identify and focus clearly on the issues, they will discover that judges are not only appreciative, but the decision is more likely to mirror their expectations in a timely way.

This article was published in the February 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.