Persuasive Oral Advocacy PDF

Hello everyone today we're going to talk about persuasive oral advocacy and in particular the role of oral submissions in the immigration context at hearings before the immigration Refugee Board of Canada which I'll call the I r b oral submissions are typically invited just before the end o...

Hello everyone today we're going to talk about persuasive oral advocacy and in particular the role of oral submissions in the immigration context at hearings before the immigration Refugee Board of Canada which I'll call the I r b oral submissions are typically invited just before the end of the hearing in less formal settings for example in an interview between your client and a Canadian Border Services Agency officer at a port of entry the proceedings are typically less structured and you may not be invited to speak until the interview is almost over at that point you may have just a few minutes to offer a brief submission on behalf of your client in just those 3 or 4 minutes you've got to get it right in this regard the 1st and most important step in effect of oral advocacy happens before you ever open your mouth yet have to be thoroughly prepared know your client's facts and know the law oral submissions are your opportunity to bring a case into the significant matters that have arisen from the testimony heard at the hearing or communicated during the course of a less formal interview it's your opportunity to suggest that the evidence heard supports the legal requirements that the claimant or applicant or appellant has to meet your arguments bring together the oral testimony and all the documents in the evidence and urge the adjudicator to make a favorable decision your argument is not evidence it's not a repetition of evidence it's argument this is illustrated by evidence Immigration and Refugee Protection Act requires for example that the Refugee Protection Division give participants a reasonable opportunity to make submissions at a hearing. The submissions must be relevant focused and precise a decision maker may ask you to address particular issues and not others if you're relying on references to a particular document in the file then you need to provide the adjudicator with the name of the document and the page or paragraph number but don't squander your time by reading a page or paragraph a lot there are no specific rules for submissions upside of the i.r.b. Context so you can expect a great deal of variability stepping back from moment there basically 4 main purposes to an oral submission regardless of the context the 1st is to convince We want to convince and I r c c or c.b.s. a Official or an Immigration and Refugee Board adjudicator to give our client a certain result that's the heart of persuasive advocacy but we often forget that a secondary purpose to oral submission is to teach you want to teach the official or tribunals member of why our client deserves a certain result that means briefly highlighting for the tribunals the salient facts and the law that goes into the legal reasoning behind why your client deserves a certain result the 3rd reason why we have oral argument is frankly to stop a train wreck if you think your case is going down you can sometimes save it on oral submissions this is particularly the case in a detention review hearing or an immigration appeal hearing before the i.r.b. If you're representing a client either in immigration detainee or an appellant and you're invited to present your submissions. And it looks it looks like the tribunal might be siding with the minister your oral submissions at the conclusion of the hearing is your chance to turn that decision maker around oral submissions can really make a difference when it's a close call finally the 4th reason why we have oral submissions is frankly a human one it's to breathe life to breathe vitality into your client's case and ensure that the importance of the outcome you're seeking for your client's life and your client's circumstances remain squarely in view or argument in the law has a basic structure the 1st part of oral argument is the opening This is your chance to make an impression on the decision maker the opening includes a brief outline of your argument is the roadmap where you're going you want the tribunals to know where you're going there shouldn't be surprises no one likes to hear a story until they know a little bit about where it's going to go that's the opening the 2nd part of oral argument is the fact. You only need to remind the tribunal about the relevant facts established in the record or if it's an interview context simply in your own client's words the relevant facts are those facts that are relevant to the case your client has to meet or the issue at hand they don't need the whole story so the facts section can be really short its purpose driven what are just the necessary facts you're going to need the 3rd part of oral argument is the argument itself and this is a cogent summary of your convincing persuasive points but it's also a dialogue with the decision maker. Believe it or not you actually want questions from the tribunal questions don't mean the decision maker doesn't understand what you're saying questions are a signal that the tribunal is engaged in your case wants to know more or wants to push an argument one way or maybe the other so you want a dialogue with the decision maker that's how you convince make sure you listen to questions carefully and respond immediately and directly don't evade or obfuscate or suggests you'll get to that later address immediately what the decision maker has on their mind that's key that's how you communicate that's how you persuade one important question though never overstate or misstate the evidence or the law and effective advocate is always vigilant about accurately stating the law and the facts as found in the record the testimony don't bend Don't distort just tell the final section of oral argument is the closing this is where you reaffirm your request to the decision maker and remind them of what you hope they'll do I need to warn you though one question from a tribunals can totally change the sequencing of your plan submissions if the decision maker says I'd like to hear about this particular area of your client's testimony or circumstances and if you're in the middle of your argument you might have to jump back to the facts for example if the decision maker says I think you're about this issue and it wasn't in your roadmap that you set out when you started talking you're going to have to be prepared to talk about that so sometimes you have to play fast and loose you're going to have to be flexible depending on what the decision maker wants to talk about. What's the difference between good oral argument and disaster oral argument well good oral argument keeps the decision makers engaged and interested you want them to care you want them to feel the heart of your case you want to prompt a conversation with them you want them to be asking you questions that's when you have their attention they're thinking they're invested and they're involved you also want with good oral argument to tell a story that has a theme the listeners can take away and play in their heads you should also have a theory for your case the reasons why they should be deciding for your client so a good oral argument has both a theme and the theory good oral argument also gives the flavor of the case the humanity you want to decision maker to feel those things the person and finally a good oral argument demonstrates the practitioners mastery of the case and the relevant law good oral argument instills confidence in you you must know this case because you know the law you know these facts you can talk about it in a confident way and that makes all the difference now what about disaster oral argument well disaster argument prompts no engagement from the tribunals I mean they're not even writing down anything they're planning their grocery list in their head or they're looking out the window you don't want that disaster arguments are read not spoken naturally as you normally speak Have you ever tried to pay attention while someone is reading something out loud it's really hard to keep your interest. Now you might be nervous but correction you will be nervous or you should be you wouldn't be human if you weren't but if you speak naturally and have a conversation instead of just read some text and not look up you'll have the audience they'll be with you and that makes all the difference a disaster oral argument can either misconstrue some facts or misapply the legal principles and get the law wrong that shows that the tribunals may not have confidence in you if you mess up the law or the facts one sure fire way to get out of the disaster zone an oral argument is to go over the amount of time allotted to you particularly if you said you were going to keep doing so if I say to a decision maker if I have the freedom to do so in that context I'm going to need 15 minutes and then I go on for half an hour what's happened love lost that person's confidence their thinking it can't gauge what he's doing does he know what he's doing try and always go a little bit under the time allotment you have to practice you may need to rehearse in front of the mirror or your dog you have to become good at it you have to try but that makes all the difference in the world finally a sure fire way to disaster in oral argument is to assume the decision makers prepared and knows everything about your case you need to assume a blank slate that the adjudicator may have just been handed your case and not had much time or even a moment to read through the file so you're going to have to assume that they don't know the details until you learn otherwise they might tell you they know or they might tell you they've read everything but maybe they've forgotten a few points so it's always safer to assume they're not prepared and your going to be there to help them oral advocacy is an art it's not a science. You'll learn how to deliver oral submissions that knock it out of the park with time practice and preparation in the meantime these tips are intended to de-mystify the process along the way good luck.