It can be very tempting, when a meaty piece of litigation arises, for counsel to want to dive in and take a side. Lawyers work, after all, in a system that is mostly adversarial — legal training doesn’t put much emphasis on impartiality.
But if you’re acting as an intervenor before the country’s highest court, too much bias is considered unhelpful.
[snip] 2. Pick your battles
Stay out of the fray, says Mahmud Jamal, a partner at Osler, Hoskin and Harcourt in Toronto. And one way to do that is to focus on only one or two issues before the Court. “There may be three or four issues raised by the appeal, and you might only take a position on two of them.” This means that the Court might be able to resolve an appeal on the basis of an issue on which you haven’t taken a position, thereby removing the suggestion that you have fully thrown your weight behind one of the parties.
Mahmud Jamal’s national litigation practice includes the defence of class actions, banking litigation, constitutional and administrative law, competition/antitrust, pension, tax, copyright and other regulatory litigation. He has argued nineteen appeals before the Supreme Court of Canada in many different fields and defended three class action merits trials. He has argued trials and appeals at all levels of court in Ontario, Quebec, British Columbia, Alberta, New Brunswick, Newfoundland & Labrador, at the Federal Court and Federal Court of Appeal, and before federal and provincial administrative tribunals such as the Competition Tribunal, the Ontario Energy Board, and the Financial Services Tribunal. He is a former law clerk to the late Mr. Justice Charles D. Gonthier of the Supreme Court of Canada and to Mr. Justice Melvin L. Rothman of the Quebec Court of Appeal. Mahmud is bilingual and has litigated trials and appeals conducted in French.