Wood says lawyers should write at a grade-nine level, urges judicial leaders to speak externally
Canadian Lawyer spoke with Nova Scotia and Court of Appeal Chief Justice Michael Wood in a wide-ranging conversation about effective written and oral advocacy, the causes of court delays, and community engagement's importance.
Answers have been edited for length and clarity.
I studied law at Dalhousie and practised in Nova Scotia ever since. My practice before my appointment was in the civil area, primarily administrative law. I did many professional discipline cases for various professions, including the Nova Scotia Barristers Society. I was the primary counsel for the Human Rights Commission for several years.
I was appointed to the Nova Scotia Supreme Court in 2011 and then to the Court of Appeal in 2019. It was a bit of a shift from being a regular trial judge to the Chief Justice of the province and the Court of Appeal.
For appeals, you must have a clear vision of the critical issues. Usually, you can boil it down and say, “What is this case about?” Sometimes, the best issues get lost in the scattergun approach. The same would be true of a trial preparation, although it's more likely to be a factual question.
I give the same advice that retired Supreme Court Justice Thomas Cromwell gave when he was on our Court of Appeal: Write your materials at a grade-nine level. That is not because judges can only read to a grade nine level. It means expressing your argument in simple terms will make it very easy for the judge to read and comprehend.
Clarity of language is always effective. Law schools don't teach students to write at that level. The hardest thing for students coming out as young lawyers is unlearning that.
Don't read your materials to the court. Organize your thoughts and prepare handwritten notes in bullet form.
We're very fortunate because we effectively have no delays at the appeal level. As our annual report outlines, two-thirds of our civil cases are resolved with a written decision in less than a year.
Criminal cases take a bit longer because there is frequently someone who's been convicted and is representing themselves on appeal, and the issues are a bit more complex.
From a bigger picture of delays in the justice system, it's fundamentally a resource issue. The resources can be judges or the availability of courtrooms and staff.
On the civil side, you tend to see many more interlocutory motions or applications. Civil lawyers seem to spend all their time in chambers arguing motions, and frequently, cases never get to trial because they get settled or resolved.
At the Court of Appeal, we want to be as accessible to as many people as possible. So, for example, virtually all our appeals are resolved by published written reasons.
Webcasting is just another variation of that. It's not feasible for people to trundle down to a courtroom and sit in the back to watch what's happening. So, webcasting is one way for people to see what happens.
We're starting to come back from the lull that happened during the pandemic. The trial courts were not conducting their business at the same level during the pandemic, particularly jury trials in the Supreme Court, and they're the source of our work.
Our numbers are returning, but they're still lower than before the pandemic, particularly on the civil side. The criminal level has stayed very constant. So, I anticipate our work on the docket for the upcoming few months will be busy on the criminal side.
We've always done many of our routine things through telephone and self-scheduling. Now, we can do them by MS Teams or video. We're taking a road trip, where we will sit for the first time outside Halifax on a trial basis next fall in Sydney on Cape Breton Island. We will also engage the local bar there with a reception.
Because we work with most of our materials in written form, this would lend itself quite readily to an electronic filing system. In Nova Scotia, all levels of court have collectively entered an arrangement with the provincial Department of Justice and established what we call a Digital Task Force. I am a co-chair of that with the Deputy Minister of Justice.
This modernization is not just about technology. It's also changing how you do business to make it more of a customer service model focusing on what's best for litigants, counsel and those served by the court.
I'm very hopeful that we will test out an electronic filing system at the Court of Appeal once things start getting implemented because we're the logical place to try it. After the bugs are worked out, we roll it out to the other courts.
During the pandemic, we allowed people to file electronic documents by email, but without a proper registry system, you still had to turn around and print paper copies and put them in the file. Most of the judges on this court had no concept of electronic materials when they were in private practice. Yet, many have stepped up and adapted well to electronic documents.
It may be surprising to some people how often judges generally participate in education, whether for lawyers, other judges, or members of the public. There are few times when a judge would turn down a request to speak on something unless it were a problematic topic or for an organization before the courts.
At all levels in Nova Scotia, we recognize the importance of judges being educated about the life experiences of different communities and people. Until recently, judges would have come from a narrow demographic. But because of our role in society, judges need to understand people's life experiences.
In Nova Scotia, we've identified the African Nova Scotian and the Indigenous Mi'kmaq communities as essential to engage with.
You're always in a position where there's more to learn. It is essential to be open to learning as much as possible about many different things, not just legal topics.
There are still many misconceptions about judges and courts and how they work. So, I would recommend that, as much as possible, you get out of your office, talk to lawyers, give presentations at conferences, engage with community members, and then do your administration after that.
I think for judges, there's a recognition of the importance of judicial wellness. We are very fortunate in this court to have great colleagues. If someone requires time, for whatever reason, more than enough hands are going up, saying, “I'll step in and help.” That's crucial because the wellness of all the participants from top to bottom is vital to keeping this ship afloat.
