I hesitated for a moment, and I didn’t quite dare to use “How to Keep the Judges Happy” as the title for this blog.
In the case of Lepp v. The Municipality of York, 2022 ONSC 6978 (CanLII) (“Lepp”), the specific legal issues are less important to the Bar than the practical guide provided by the presiding judge. The Honourable Senior Justice Mark Edwards used this endorsement to address a major frustration for the judiciary, the “document dump”.
In the entire endorsement, “less is more” appears three times. I believe that is the core idea the court wants to tell us when preparing materials for the motion.
Justice Edwards made it clear that certain rules, such as those found in the Notice to the Profession, are minimum expectations rather than mere suggestions. While specific court notices from 2022 may already be updated or replaced on the official website, the spirit of these rules remains essential, the court expects litigators to provide concise, organized, and hyperlinked materials that respect the limited time available to judges.
Let’s now dive into these insightful paragraphs to understand exactly what the judge wanted to tell us, one paragraph at a time.
[9] Regrettably, I have seen numerous instances where counsel has filed materials that are separated by “Tabs”. In order to find a particular tab, one has to scroll through the materials to find what you are looking for. In the so called “good old days”, when briefs were filed with actual tabs, we could all go to that tab without difficulty. In the virtual world if the “tabs” are not separated by hyperlinks or some other method by which the court can find a document then counsel will find the judiciary simply won’t have read their materials.
“Less is more” appears 3 times in the endorsement, but guess what? The word “hyperlink” appears 8 times, a clear proof of how much the judges dislike a PDF that is not properly hyperlinked.
Digital “tabs” are useless if they are not clickable. While physical tabs worked in the past , scrolling through a massive PDF to find a specific document is a waste of the judge’s time. If you do not use hyperlinks to connect your index to your materials, the judge simply will not read them.
[10] Advocacy is both an art and a skill. To advocate for one’s client involves both written and oral advocacy. Both are skills that can be learned and improved upon. Part of that skill begins in the lawyer’s office as he or she prepares for oral argument. Part of the skill is recognizing what your motion judge will need to write his or her endorsement/reasons. Counsel needs to exercise good judgement in their determination of the written record that the court will need to review prior to oral argument. Good judgement does not include “throwing the kitchen sink” into a “document dump” that you hope the court will be able to sort out. Rather good judgement will involve how to make your client’s case more attractive to the motion judge.
Advocacy is about helping the judge do their job, not giving them more work. A good lawyer anticipates exactly which documents the judge will need to write the final decision. “Good judgment” means being selective, so do not dump every single piece of paper into the record and expect the court to sort it out for you. A counsel’s goal is to make his case attractive and easy to follow, not to bury the best points in a “kitchen sink” of less relevant evidence.
[11] Amongst the things that a lawyer provides to his or her client are the skills expected of an advocate. It is no secret that civil litigation has its challenges and that the costs of litigation increase every year creating access to justice issues for the general public. While lawyers will take their instructions from their clients those instructions must be informed instructions. Exercising good judgement in terms of the documents to be filed with the court does not require a lawyer to blindly follow instructions to create a “document dump”. The good advocate will ensure the client understands that not every piece of paper in the clients file is relevant or necessary to what the court will need to adjudicate a matter.
Clients often think that more evidence makes for a stronger case, but a counsel is hired for their professional judgment, not just to follow orders. Filling a record with every possible document is expensive and counterproductive in a system already struggling with costs. A counsel must take the lead by explaining to the client why certain papers should stay in the file rather than going to the judge. Effective advocacy requires a counsel to filter the noise so the court can focus on the signals that actually matter for the win.
[14] Regrettably what might have been reflected in the top ten ways to lose a motion is what the judges of this court have to deal with everyday. Like lawyers one of the most valuable commodities, we have is time. Time is in very short supply. Judges are asked every day to adjudicate numerous motions and or to deal with numerous pre trials. It is simply impossible to expect that the judiciary will have read everything that lawyers typically file. The Notice and The Rules are written not as suggestions but rather to help the Bar streamline their materials in a manner that will ensure the bench will have read the “key” documents and caselaw.
Judges are short on time and are dealing with many motions and pre trials every day. It is not realistic to expect the court to read everything counsel files. That is why the Rules and the Notice are not just suggestions, but they are meant to force streamlined materials so the judge reads the key documents and key cases.
[16] The Bar needs to be assured that the Bench will read the factums filed. The Bench will also read the Compendiums. Where time permits the Bench will also read the salient documents filed as part of the motion record. The compendium should contain the relevant documents and caselaw that will be argued in oral argument. The judiciary simply can not be expected to read 1300 pages for a motion that was to be argued in under an hour.
A counsel should understand that judges prioritize their reading based on limited time, starting with the factum and the compendium. The full motion record is often only consulted if time allows, making it the least reliable place to hide key evidence. It is mathematically impossible for a judge to digest a 1300-page document for a hearing lasting less than an hour. To ensure the court sees the most important evidence, a counsel must place those “salient” documents directly into a concise compendium.
[17] In the result, I adjourned today’s motion to allow counsel to comply with the Notice. Very simply put, the Bar needs to reflect on why they are filing materials that are hundreds, if not thousands of pages long. This applies to Motion Records, Caselaw and Pre Trial memos. In the world we now live in, the Bar needs to appreciate that apart from the requirements imposed by the Notice and the Rules of Civil Procedure judges are human beings. We simply do not have the time to read the volume of material we are often confronted with. The Bar would be well advised to read the Notice and The Rules to ensure they have complied with the minimum filing requirements for the hearing of a motion or a pre trial.
In this case, the judge stopped the hearing and sent everyone home because the materials were just too long and messy.
He wants every lawyer to pause and ask a simple question: why are we still dumping thousands of pages on the court in the first place.
Judges are not robots, they have a lot of things to handle. If a counsel provides a massive “document dump,” the judge simply will not have enough hours in the day to read it all. To avoid a forced adjournment and a frustrated judge, a counsel must follow the court’s rules as a basic sign of respect for the judge’s time.
Now, let’s dive into the 12 practical tips Justice Edwards shared in paragraph 15 to help every litigator win their motion.
a) Before you even serve you motion materials ask the fundamental question is the time and expense of the motion really worth the effort. Keep in mind that statistics show that well over 95% of all cases will settle without a trial. So, ask the question how much impact, if any, will the motion being contemplated improve the chances your case will resolve in a manner favourable to your client.
Before a counsel even serves the materials, they must ask if the motion is truly worth the time and money. Since more than 95% of cases settle before trial anyway, a counsel should only move forward if the motion significantly improves the client’s chances of a win or a better settlement. If it does not move the needle, it is likely a waste of resources.
b) Assuming you have decided that a motion is needed consider doing something really old fashioned and that is to pick up the phone and talk to your opponent. In person discussion whether by phone or may I dare say actually a meeting, might obviate the need for the motion or perhaps narrow the issues you need to argue. All too frequently the Court will be confronted with affidavits to which are appended numerous email communications between counsel. Regrettably what counsel sometimes say in their emails will not portray counsel in a positive light.
A counsel should try talking to their opponent before jumping into a motion. A quick phone call or meeting can often settle the whole thing, or at least narrow down what needs to be argued. This also stops messy email chains from ending up in front of the judge as part of an affidavit. A counsel should remember that a simple conversation is often more effective than a long string of aggressive emails.
c) The single most important guiding principle as it relates to written advocacy might start with an old saying “less is more”. Put another way your motion judge will be greatly impressed with a motion record that contains only the documents that are fundamental to the determination of the motion.
The best written advocacy is selective. A motion record should include only the documents that are truly necessary to decide the motion. A tight record shows judgment and makes it easier for the judge to rule.
d) Following along with the “less is more” principle it is fundamental to a positive outcome for your client that counsel comply with the Notice and Rule 4.05 (3. File a compendium that only contains the critical documents you will refer to in argument together with extracts of any case law you intend to refer to in oral argument. Ensure the documents and caselaw are hyperlinked so the reader doesn’t become frustrated trying to find them.
Although Rule 4.05(3) has since been revoked, the core message remains a fundamental requirement for any litigation lawyer. To get a good result, a counsel must file a compendium that acts as a “greatest hits” document, containing only the most critical papers and specific case law extracts needed for the oral argument. Every document and authority within this compendium must be hyperlinked so the judge does not get frustrated trying to find them. A counsel’s goal is to make the judge’s life easier by providing a single, clickable document for all essential materials.
e) While it is not every motion that may require a factum if your motion is important enough to the outcome of the case you may want to consider filing a factum even where the Rules specifically don’t require a factum.
Even if the Rules do not strictly require a factum, a counsel should consider filing one if the motion is important. A factum provides the judge with a clear written guide before the hearing. A counsel’s goal is to make the case easy to understand, and a factum is the best tool for the job.
f) In any case where you are either required by the Rules (as an example Rule 20 and Rule 21 motions) or where the importance of the motion dictates good practice in filing a factum consider the following: I) a simple argument might very well be a winning argument; ii) make sure the issues you are asking the court to decide are clear from the beginning and narrow the issues down to the one or two real issues that need to be decided; iii) refer the reader to the leading appellate authority(s) that address the issues you say need to be decided; iv) if there are critical parts of a document such as the language of a contract consider reproducing right in the factum an extract of the document. Put in layman’s language the easier you can make the job of the decision maker the greater the likelihood of a positive decision for your client.
A counsel should keep arguments simple, as a straightforward point is often the strongest one. It is important to define the issues clearly and narrow them down to the one or two things that really matter. A counsel should stick to leading appellate cases that directly answer those issues. If a specific part of a document is crucial, a counsel should paste it right into the factum so the judge does not have to hunt for it.
In short, the easier a counsel makes the judge’s job, the greater the chance of winning.
g) When there is a page limit – as with the Central East 15-page limit for pretrial memos- there is no requirement that you actually file 15 pages. Less is more. But where there is a page limit do not exceed it.
Page limit is a ceiling, not a target. Less is More.
But once there is a limit, it must be respected, and it must not be exceeded.
h) While the filing of a compendium is an essential component to good written advocacy, where other documents are filed that include multiple exhibits, make sure those exhibits are readily accessible to the reader -either with separate electronic tabs, hyperlinks or bookmarks, The reader i.e., your motion judge will not scroll though hundreds of pages to find a document.
A counsel who files exhibits must make them instantly accessible with electronic tabs, hyperlinks or bookmarks. Motion judges will never scroll through hundreds of pages hunting for a document; if it is not one click away, it simply will not be read.
i) Before the hearing of your motion take the time to check Caselines and ensure that the documents you will be referring to have been properly uploaded to Caselines and are easily accessible. This may only take you a few minutes, but it may save considerable embarrassment when you get to oral argument only to have your motion judge say he or she hasn’t read anything because the documents have not been uploaded to Caselines or they have been uploaded into the wrong bundle.
A counsel must take a few minutes before the hearing to log into Caselines and confirm that every document planned for oral argument is correctly uploaded and instantly accessible. A simple check prevents the embarrassing moment when the judge says they have read nothing because the materials are missing or sitting in the wrong bundle.
j) Once you have served and uploaded everything and you have reviewed everything that your opponent has served consider the wisdom of another phone call with your opposite side. Can the motion be resolved? Can the issues be narrowed? Is the motion ready to be heard or will there be a late breaking request to adjourn-if so, better you try and resolve that before your attendance than to waste precious court time.
Even after all the papers are filed, a counsel should reach out to the other side one last time. A counsel’s goal is to see if the motion can still be settled or if the issues can be focused to save the court’s time. It is much better to deal with a settlement or a request to adjourn privately than to waste a judge’s schedule during a scheduled hearing. This final check ensures that the court only spends its limited time on the problems that truly cannot be resolved between counsel.
k) Come prepared to argue costs or at the very least exchange your Costs Outline as required by Rule 57.01 (6)-better still consider discussing with your opponent an agreed upon amount for costs to the successful party. You can be rest assured that even if you are the loosing party the presiding judge will likely have positive memories of counsel who can agree upon costs rather than being subjected to having to write a costs endorsement.
A counsel should always be ready to discuss costs at the end of the hearing and must exchange a Costs Outline as the Rules require.
Even better, a counsel should try to agree on a cost amount with the other side before the hearing starts. Judges do not like having to spend extra time writing separate cost decisions. If a counsel can settle the money part themselves, the judge will remember them as a professional who respects the court’s time, even if they lose the actual motion.
l) Last but not least Upload to Caselines a draft order in Word format. It may come as a surprise to many that some judges-myself included, have great difficulty manipulating a “Pdf”. Your motion judge will greatly appreciate seeing in Word format what it is that he or she is being asked to order.
A counsel should always upload a draft order to Caselines in Word format instead of just a PDF. Many judges find it very difficult to edit or change a PDF file.
Hold on a sec.
In the real world, as we all agree, less is actually less, and more is simply more. So, how does a counsel deliver “less is more” to the court?
We saw in para 14 that the court asks for only the “key” documents. To find those few essential pages, a counsel must first master the entire mountain of evidence. It takes far more time to analyze, filter, and select the best evidence than it does to simply dump every document into a PDF. This extra effort and expert analysis are exactly why high-quality legal work comes with a higher price tag.
The same applies to para 15(f). The court wants narrowed issues and only the most important caselaw authorities. To “narrow” a case effectively, a counsel must first research every possible legal angle and review dozens of authorities just to find the one “killing blow” case. Being brief requires a deep understanding that only comes from hours of hidden work, which naturally increases the legal fees.
Finally, there are the hyperlinks mentioned throughout the court’s instruction. While I myself spent over a decade in the IT industry, most legal offices find it very difficult and time-consuming to build a perfectly long navigable PDF. Creating a file that allows a judge to jump between sections effortlessly is a specialized technical task. That extra skill and effort also costs more.
Strong advocates do not complain. We are all professionals, and now that the court has given us a clear roadmap in Lepp, we should all do our best to meet these standards.
