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  • Hu Eliot Young

To thy own self be true: Be yourself - trust your intuition.

When eighteen years of age, while attending the Victoria School for the Performing Arts, I worked part time as a bus boy and then a waiter, at Churchill's Restaurant in the labyrinthine caverns of McCaulay Plaza, a vast catacomb like stretch, a stone's throw across the subterranean depths from the Hotel MacDonald to the commercial towers westward on Jasper Avenue.


Dr. Rice, the Sunwapta broadcasting giant, who looked to me the spitting image of Sir Winston Churchill, was a fairly frequent visitor at the restaurant. I would patrol the restaurant floor with trepidation when in his presence. I expect the maitre'd, Armando, a Portuguese immigrant who brandished superlatives on all the regulars, hired me specifically because my slim resume portended possibilities of dramatic substance on the restaurant floor.


One of Armando's flourishing trades was the special coffee he would prepare right on the floor, at the customer's own dining table, lighting the whole exotic concoction on fire after mixing in the various liqueurs for dramatic effect. Always calling the Triple Sec, "triple sex" as if it were a promise of something naughty.


But I digress. The story I intended to recount was how I was called upon to make the special coffee and, being a quick study (or so I thought), proceeded to incorporate the same language, chapter and verse, used by the magical Armando. Well, "triple sex" may have sounded funny coming from a middle aged man with a Van Dyke beard, with a rather thick Mediterranean accent, but it sounded both inauthentic and foolish from an eighteen year old "know nothing" whose ignorance was exceeded only by his arrogance.


Lesson seemingly learned. Or, at least, opportunity to learn, seemingly given.


Remember the Shakespearean quote. "To thine own self be true and it will follow, like the night the day, that thou can't be false to another man?" There are many ways to be untrue to thyself. In the practice of law, it's easy sometimes to imitate another's style because one has witnessed, in practice, the effectiveness of other counsel. However: One must only paint in broad strokes when using another's style, or a greater problem will follow. While imitation may be the sincerest form of flattery, it is imitation nonetheless and nothing will look more insincere than imitation however well intended.


Around 25 years ago, I witnessed a perfect example of another lawyer avoiding the trap of imitating the skill of another. I was attending a seminar put on by the Alberta Civil Trial Lawyers' Association. Two top notch lawyers had been asked to present their side of a case to a jury composed of laymen asked specifically to sit as jurors and then, to  allow the audience (comprised of seminar attendees, all members of the civil trial Bar) observe their deliberations.


The opening address of plaintiff's counsel (for the injured plaintiff in a personal injury action) was given by Mr. M, subsequently appointed to the Bench. His prose was poetry;  his pauses and pronouncements, profound and poignant. He established this connection with the jurors during his address, which one could feel from the distance of the theatre seats we sat in, overlooking the stage. Folksy language, a lectern close to the jurors, he held them in the palm of his hand. His was an appeal to the heart, that transcended the disconnect between the plaintiff and the plaintiff's own actions and resolutely created a storyline where anyone listening would have mortgaged their firstborn to ensure indemnity for the plaintiff for his losses.


His was a tough act to follow. One could forgive anyone responding, for using the same approach as that of Mr. M. because its effectiveness was so readily apparent. It was all reminiscent of the judge who convicted the accused at the end of the Crown's case, forgetting that just because the prosecutor was so effective, it didn't mean that no case could have been made in defence that would not have raised a reasonable doubt.

Defendant's counsel was Mr. B, also subsequently appointed to the Bench.

His first step after approaching the lectern was to lift it and carry it back about ten feet. The very act demonstrated an interesting distinction in approach; he was establishing his own "turf" as it were. A different comfort level with the intended audience perhaps but he was establishing his own level of connection with the jurors, based on his own style and he was not going to "fight a battle" with his adversary, Mr. M, (as he then was) on the battlefield that the latter had created.


The very act of moving the lectern backwards, essentially tore away the enticing spider's web connecting the prior speaker with his audience (the jury.) It was like something out of "The Art of War"; not letting the other side dictate where and how a battle or contest was going to be waged.


With the benefit of hindsight, it became apparent to me that however accomplished Justice M's appeal to the hearts of the jurors had been, there was now a disruption to that connection and the new speaker, the defendant's counsel, Justice B, was able to start afresh, with the jurors unencumbered by existing views which were predicated upon the strings which drew them to the prior orator.


With the further benefit of hindsight, (and I may well be wrong on this point but it is how it seemed to me upon reflection when we were asked to consider the different approaches, these were my thoughts ...), Justice B knew well his own experience had created advantages and disadvantages not unlike those of an athlete who trains for a particular event, is as good as there is in that event, but may not win a different event for which he hasn't trained to the same level. (Think of Donovan Bailey or Andre De Grasse running a 100 meters and then think of either throwing the javelin. You'd put your money on them at 100 meters but not at the other event). Defendant counsel had been insurance defence counsel for years and colloquial charm which might appeal to jurors on behalf of a plaintiff, was not his case to make. For years, he had given legal advice to insurance companies and their representatives, who were there for the clear, unvarnished opinions. Something like out of Dragnet; "the facts m'am, nothing but the facts." To play to one's own strengths then, requires that one not be susceptible to the temptation to follow another's path simply because the jurors have seemingly loved that path. It is to trust in the strength of advocacy and style that ones own experience has created.


One sees this all the time in athletic contests where a great foe can vanquish many an opponent when that opponent uses the same style or strategy but that great combatant loses when the opponent uses a completely different style of play. The basketball team that uses a fast break offensive and full court trapping defence, doesn't like to be trapped and have the same defence played against it. The team that sticks to its game plan and doesn't get caught up playing the fast break team's tempo, has a better chance of succeeding in its goal.


At the end of the day, the contrast in styles was great. The first by Mr. M (as he then was), was an appeal to the heart. A second appeal to the heart, by way of response, would indubitably have failed. But the second approach, tendered by Mr. B (as he then was) , was an appeal to the mind. It was like saying, "okay, you've heard what was said and I understand how you've been enticed by that which was said. The heartstrings have been tugged. But now, let's step back and (greater distance from the lectern) analyze this dispassionately. I am sure when you listen to reason, you will make the right decision."


The lesson was to trust one's own instincts and experience and not get caught up, in the moment and surrender one's own skill set for that of another, whose skills appear to be carrying the day.


Oh, if the practice of law were so simple!

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