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It’s conviviality outside courtroom – all business inside

published August 9, 2019

Chances are there’s going to be conviviality among lawyers,” says Botting, principal of Gary N.A. Botting, Barrister and Solicitor.

But a jury needs to know that the lawyer for the defence has a specific job to do, as does the lawyer for the Crown and these are almost always diametrically opposed, he tells AdvocateDaily

Lawyer civility has been widely debated in recent years, culminating in a Supreme Court of Canada decision that backed the courtroom conduct of a Toronto securities litigator. The court overturned a professional misconduct finding of incivility by the Law Society of Ontario (LSO).

“Although of doubtless importance, the duty to practice with civility is not a lawyer’s sole ethical mandate,” wrote Justice Michael Moldaver for the majority. “In particular, standards of civility cannot compromise the lawyer’s duty of resolute advocacy.”

Botting says lawyers are a generally congenial group, regardless of whether they are Crown or defence. In some small jurisdictions, they may be a prosecutor in the morning and a defence counsel in the afternoon.

Most barristers lounges, much like doctors scrub rooms, are relaxed, but that’s where the levity ends, he says.

“It’s conviviality outside the courtroom and business inside — all in the name of seeking justice,” Botting says.

“The guy I was joking with five minutes earlier may be attacking an argument that I have made or questioning facts as I have stated them. He’s not calling me a liar exactly but saying I’ve misrepresented things in a certain way,” he says.

“You’re not going to let the Crown get away with anything if you can help it, and he’s not going to let me get away with anything if he can help it,” Botting says.

But even heated disagreements should be couched with respect, which is why lawyers address each other as “my friend,” he says.

Many clients mistake such civility as collusion, and ask, “Why are you his friend? Are you in cahoots?’” Botting says. “You have to explain that it’s just a term, an expression — not a term of art, exactly — more of a term of craft.”

A bit of courtroom drama doesn’t hurt, but emotions have to be controlled, with the judge setting the boundaries, he adds.

“I might object vociferously and maybe even angrily at something that the Crown has said that strikes me as inappropriate, and vice versa,” Botting says. “And the judge has to rule whether that reaction is appropriate under the circumstances.”

You can’t accuse the Crown of being deceptive. “You can say he’s misstating things. You can’t say that he’s doing this maliciously,” he says. “Accusing the Crown, rather than, say, a police witness, of being disingenuous is a distinct no-no.

“Understandably, judges are particularly sensitive to criticism. Even though appeals, by definition, challenge lower court decisions, appeal judges are bound to circle the wagons if they find the trial judge has been the subject of an ad personam attack or an insufficiently documented allegation of bias,” Botting says.

On rare occasions, the court has been known to redirect the fire back at the lawyer, as in paragraphs 219-221 of a recent B.C. Court of Appeal ruling.

In the case involving the Toronto securities litigator, the LSO pressed disciplinary charges against the lawyer despite the fact that the trial judge had largely tolerated his courtroom behaviour.

Law societies can unnecessarily interfere with a lawyer’s courtroom decisions, Botting says.

“Anything that happens in court should be the domain of the judge or judges in the Court of Appeal,” he adds.

Botting recalls his first time in court — a family law case. In his remarks to the judge, he likened his client’s predicament to that of Alice in Wonderland.

“A little girl had run away from home with her two pets, a white kitten and a white rat, and went to her grandmother’s house. She wasn’t home,” he says.

“The girl went to a neighbouring park, leaned against a tree and fell asleep, where a passerby saw her and phoned the police. Child services took custody of the girl, along with her brothers and sisters. The indignant mother came across as the ‘Duchess,’ and a witness testified that she had seen her tossing her baby in the air and catching it, to the delight of her other children. In fact, the ‘baby’ was a Cabbage Patch doll.”

The judge appeared to enter into the spirit of Botting’s Alice in Wonderland analogies, asking if she was then the Queen of Hearts.

Opposing counsel took umbrage with Botting’s remarks and complained to the law society, which immediately upbraided him for being insufficiently deferential to the judge, Botting recalls.

“The judge could have handled all of that,” he says. “What happens in court should stay in court.”