CBA.ORG / BC From the Bench

by The Honourable Mr Justice D F Tysoe

I am told that when I was considered by the committee which screens candidates for the Bench, most of the discussion was a debate whether I was a solicitor or a litigator. In fact, I was both. I started my practice solely as a solicitor but I developed a chambers practice in connection with insolvency and other commercial matters.

My sense is that most solicitors are reluctant to appear in court. They fear that it will require some special knowledge or talent which they do not possess. However, my view is the exact opposite. I believe that solicitors should be encouraged to attend in Chambers.

Obviously, lawyers preparing documents for chambers applications must have some knowledge of the Rules of Court, particularly with the enactment of Rule 65. However, it is not necessary to have an intimate knowledge of all of the Rules and it should not require too much of an effort to gain a working knowledge of the Rues which are relevant to chambers applications. I believe that many solicitors do prepare all of the documentation for a chambers application but request a litigator to speak to the application in court.

Like many endeavors in life, preparation is one of the keys to success in court. A solicitor can prepare for court as well as a litigator and solicitors will often be in a better position to answer questions from the judge or the master because they will have more knowledge about the file.

Many solicitors may be apprehensive to appear in court because they do not believe that they have the oratorical skills to be effective. However, knowledge and preparation are more important in court than one’s public speaking ability. When I acted as counsel, the “ums” and “ahs” seemed to magically disappear when I was confident that I was properly prepared.

As a judge, I try to listen very carefully to all submissions but I probably listen a little bit more carefully to submissions made in Chambers by a lawyer whom I know to be a solicitor. I appreciate that they may not appear in court very often and I respect the expertise of solicitors who practice in specialized areas of law. Most judges’ knowledge of the law tends to become more generalized as the years pass since they last practiced as a lawyer.

Although the practice of law continues to become increasingly specialized, the lines of specialization should not keep solicitors out of court. Solicitors are certainly welcome in my courtroom.