The Wrong Stuff Revisited: Tips for avoiding questions from the bench in 2023
In this article written for The Advocates’ Society newsletter, Advocacy Matters, Tamara Ramsey
pays homage to satirical articles from the Honourable Marvin Catzman and provides some
practical tips for counsel in virtual courtrooms. The full issue of Advocacy Matters is available here.
March 06, 2023
Tip #6 in the first of the late Justice Catzman’s facetious articles about how to lose appeals in the Court of Appeal is to never answer a question directly or, better still, at all1 . In 2023, as we continue to hold appeals and other court appearances over Zoom there are so many new ways to try to avoid dialogue with the judge hearing your argument.
Justice Catzman suggests that you avoid giving a clear, straightforward answer and to stonewall, stonewall, stonewall. He provides some helpful tips for stonewalling such as talking around the question, taking the judge to lengthy passages from the evidence that have nothing to do with the question, rephrasing the question in a manner more to your liking, and making fun of the question.
When appearing before the court over Zoom or similar technology, here are some new ways to use the technology to your advantage to avoid questions and meaningful dialogue with the bench:
- Avoid “eye” contact. We all know it is not real eye contact to stare into the camera, but the best way to avoid the judge’s gaze is to never look at the camera. If judges cannot see the whites of your eyes, then they cannot interrupt your speechifying to clarify any of the brilliant points you just made.
- Look away. This is a variation on avoiding eye contact. Simply explain to the judge that you have multiple monitors and that you will be reading your submissions, uninterrupted, from a monitor that you have strategically placed to your immediate right or left so that the judge gets to see your best side profile throughout your submissions. If you want to screenshare any documents, you can shake things up by using a monitor on the opposite side and letting the judge stare briefly at your opposite ear.
- The accidental mute. “You’re on mute” remains the most overused phrase of the 2020s. When a judge asks a question, you may want to accidentally on purpose hit the mute button and keep moving your lips. The judge may forget the question while you pretend to provide a brilliant, muted answer.
- Freeze. Literally freeze like a deer in the headlights. Do not move. If you stay frozen long enough everyone will blame the technology. When you finally decide to start moving again simply pick up in your script where you left off as if the question never happened.
- Fade into the background. While Zoom has given us the ability to “enhance” our appearance and add virtual lipstick, you may want to take advantage of some of the limits of the technology. Do not buy a ring light or rely on the overhead fluorescent lights of your office to keep everything bright. Sit in front of the window on a sunny day to obscure your image as much as possible. If a judge cannot see you properly, you can pretend that you do not see the judge when they try to ask you a question.
- Be a cat. If all else fails, turn on a cat filter. No judge is going to ask hard-hitting questions of a cat.
If none of these tips work to avoid questions, then you may want to clumsily ignore all virtual etiquette by jumping in to answer the question before the judge can finish asking it. If the judge is not able to finish the question, you can pounce on the first few words they uttered as a pretense to simply repeat your weakest argument. Your goal is to discourage the judge from attempting to throw you off track by interrupting you again.
1 Catzman, “The wrong stuff: How to lose appeals in the Court of Appeal”, The Advocates’ Society Journal, August 2020. Though focussed on appeals, his tips apply much more broadly to help his readers lose in any court or tribunal. The August 2000 issue of The Advocates’ Journal is now available on the member-only Journal archive page.