In a recent exploration of courtroom dynamics, a team of lawyers from Torys LLP has unveiled intriguing insights into the questioning behaviour of justices at the Supreme Court of Canada. Their study, whimsically titled “Pardon the Interruption,” analysed four years of hearings from 2021 to 2024 and highlights the rapid-fire questioning style of the court, reshaping our understanding of legal advocacy at Canada’s highest judicial level.
The Fast-Paced Nature of Supreme Court Advocacy
Preparing for a Supreme Court hearing can be a nerve-wracking experience for lawyers. Jeremy Opolsky, a member of the Torys team, reflected on his own experience in a corporate bankruptcy case, where he found himself interrupted by Justice Suzanne Côté just 72 seconds into his argument. This scenario is not uncommon; the study indicates that justices typically interject with questions an average of two minutes and 42 seconds into a lawyer’s presentation. Sometimes, the judges’ inquiries come even sooner, with approximately one-third of main parties being questioned within the first minute of their allotted time.
The findings illustrate a courtroom environment that prioritises dialogue over monologue. Judges arrive not merely to listen but to engage actively with the arguments presented, demonstrating their commitment to understanding the nuances of each case.
Who Asks the First Question?
The study also shines a light on the personalities behind the bench. Justice Côté emerged as the most likely to pose the initial question, closely followed by Justice Malcolm Rowe. Other justices, including Chief Justice Richard Wagner and Justice Mahmud Jamal, also frequently initiate the questioning, while Justices Sheilah Martin, Andromache Karakatsanis, Mary Moreau, and Michelle O’Bonsawin tend to do so less often.
This dynamic fosters an atmosphere of respectful curiosity, though the politeness of the judges can sometimes lead to an apologetic tone when they interrupt a lawyer. Despite this, the urgency of the courtroom setting compels judges to seize opportunities to clarify issues as they arise. Former justice Marshall Rothstein encapsulated this approach by stating, “You just dive in when you’ve got a question,” emphasising the importance of timely interjections within the limited hour typically allocated to each party.
A Contrast with the American System
Interestingly, the Canadian approach contrasts sharply with that of the United States Supreme Court, where judges usually permit lawyers two uninterrupted minutes before delving into questions. This difference highlights the unique characteristics of the Canadian judicial system, where the fast-paced questioning reflects a commitment to thorough comprehension and engagement.
Opolsky and his colleagues shared their findings in the fall issue of the Advocates’ Journal, noting that while the timing of questions may seem spontaneous, it fosters a vital dialogue that can enhance the clarity of the arguments presented. Opolsky remarked, “Questions are a gift,” underlining their role as opportunities for lawyers to clarify their positions and respond to the judges’ key concerns.
Preparing for the Heat of the Moment
Recognising the intensity of Supreme Court appearances, the Supreme Court Advocacy Institute plays a pivotal role in preparing lawyers for the rigours of high-stakes hearings. Founded two decades ago, the institute provides rehearsal sessions led by seasoned lawyers and former judges, helping counsel navigate the demanding environment of the court.
Lawyer Shantona Chaudhury, co-executive director of the institute, highlighted the essential mindset needed when facing an onslaught of questions. “You can’t let it get to you,” she advised, likening the experience to competing in a championship tennis match, where one must remain focused amid the pressure.
Why it Matters
Understanding the dynamics of questioning at the Supreme Court is crucial for both legal practitioners and the public. It highlights the importance of judicial engagement in ensuring fair and thorough deliberation of cases. As lawyers adjust to the rapid-fire inquiries of the justices, the insights gained from this study will undoubtedly shape future advocacy strategies, ultimately enhancing the quality of justice served in Canada. In a system where curiosity reigns supreme, the presence of challenging questions is not merely an obstacle but a vital component of the legal discourse.
