Smith Shield Advocacy: Reflections from the other side

Q: Why did you want to do the Smith Shield?

 Ian: Practicing advocacy is a big reason why I came to law school. I’ve always loved the feeling of performance, and advocating is similar to playing a character. The art of persuasion is such a powerful thing and such a big part of being a successful lawyer. I’ll take any chance to build on those skills and put them to the test. Plus, it was a chance to work with some of the best advocates at [Schulich], and to challenge myself by going head to head with them.

Melia: My first year self couldn’t even imagine that she would be nominated for the Smith Shield. So, I wanted to do it for her. Doubt is something that haunts every law student through their three years and usually continues as they start to practice as a young lawyer. Doing the Smith Shield was a chance to shatter that lingering doubt and to show that this is something I can do and to stop second-guessing my abilities to succeed.

Q: What was the most difficult part?

Ian: Of course I was anticipating the workload, but what I wasn’t expecting was the tremendous stress and pressure that I felt throughout the process. I’ve done competitive moots before, and public speaking is usually not a problem. I think the combination of competition and entertainment really made me second-guess myself. I wanted everything to come out perfectly, and it was difficult to actually start putting my ideas onto the page. It took me a long time to overcome this perfectionism and actually start writing.

Melia: Getting started. It was tough getting over that hump where the task at hand seems insurmountable. It’s hard to figure out what your strengths and weaknesses are at first and how to organize those thoughts. In the early stages of research there are a lot of question marks and you have to wade through a wave of arguments to get towards something that makes logical sense.

Q: What was the biggest surprise?

Ian: The biggest surprise was probably what I talked about earlier with the magnitude of the pressure. I definitely wasn’t expecting to feel that weight so heavily. I was also surprised by the incredible collegiality with Melia, Tim, and Alicia. This really should stop surprising me after two-plus years at Schulich. I don’t enjoy or thrive in hyper-competitive environments, and I’m always wary of walking into one. I needn’t have worried. If anything this moot just brought us closer together with the shared experience.

Melia: The feeling when it all ended. There were many stressful moments leading up to finishing the factum and especially the anticipation towards the oral arguments you had to do in front of the entire school. Yet, once the decision came down and everyone was giving you their congratulations there was this moment of “is it all over?” This process engulfed my life for an entire month and after it was over I just had to get back into normal school life and catch up in all my courses that I severly neglected. Despite the stress and long days in the library, I missed it all afterwards. I thought there would be relief at being done, but it kind of felt weird.

Q: How did you balance it with your other courses?

Ian: “Not super well” is the short answer. It’s now November and I’m still catching up on lectures and readings that I missed during September. If I were to offer two pieces of advice, it would be these: 1) Schedule some time each week to work on the Smith Shield, and stick to that time! 2) Don’t be afraid to ask for help and rely on your support network. Thankfully, I have great friends who send me notes, meet with me for group study sessions – and overlook my knowledge gaps – and offer amazing emotional support.

Melia: I don’t know if you could call it “balance.” I think “neglect” would be a better word to describe it. The week or so leading up to the Smith Shield I quite frankly stopped going to most of my classes all together. For the most part I either did readings for classes or I went to class, but I didn’t do both for any of my classes. For the more discussion based classes I went, but bigger lectures I stopped going to for the most part. Once you are in third year you know which classes and which professors are good for lectures and what you know you can teach yourself through readings.

  • Q: Once you saw the problem, where did you start?

Ian: With an appeal moot, the lower court decision is a great starting point. I started by reading the cases cited by the fictional SCC judges, getting a sense of the current state of the law. Those cases led me to other cases and articles which supported my position (or made me rethink it).

Melia: Google: what is duress? I’d like to say I was kidding, but I often start with a simple Google search to see if there is any media coverage on an issue or to start with any academic materials. This really helps when you have a judgement that is not in your favour. It allows you to explore other potential arguments you can make. The next best step is note-up the section you are working with or the leading case to see what material you can find from there on recent case law or commentary on the cases.

Q: How do you prepare your oral argument?

Ian: Usually, by the time I’m doing my oral argument, I’m thinking differently about the problem or I want to emphasize different things, so I don’t stick closely to my factum. I structure my oral argument as though I were teaching the material to a friend. On my walk home every day, I would practice saying my major points in different ways, and I would make notes if I found a formulation that sounded good. I like to use a page or two of point-form notes, just to remind me where I’m going. Besides these key phrases that I’ve developed over time, the rest of my oral argument has never come out of my mouth before, and is just about connecting one thought to another.

Melia: I start with a pretty detailed speech, and then I start editing it down to bullet points. Often you start to realize what is best left to your factum and you can eliminate certain material. Or you think of things that aren’t necessarily emphasized in your factum and that you think is better suited to oral arguments. The ultimate goal is to whittle your notes down until hopefully you have minimal notes as a safety net or the ultimate goal of ditching the notes all together, which is what happens as soon as the questions start coming anyway.

Q: How do you deal with questioning?

Ian: Preparation is the biggest thing. We knew that most of the questions would be based on points raised by our opponents, so reading and knowing their factum is a really crucial part of preparing. It’s also helpful to know the limits of your own argument. Justice Farrar especially loved to ask hypotheticals about how your position would change with different facts. You need to know where your argument is fact-dependent, and where your position is universal. Practice sessions are also helpful to challenge each other and find new ways of addressing potential questions. If you’re well-prepared, each question is a way to state your argument in a new, convincing way.

Melia: You just need to know your material inside and out. If you know the cases and your arguments well enough then when you start to get questions it should come a lot easier. It really is just a conversation with the judges. So, pay attention to their mannerisms, stop talking when they are taking notes, or repeat the question back to them if need be to make sure you answer it properly. The point of questions is not to throw you off but for the judges to clarify things in order to make a decision.

Q: What’s it like to work with a partner on this kind of moot?

Ian: You have to be careful that your arguments align with each other’s, and you need to have a basic familiarity with your partner’s arguments. In our case, I kept getting questions from the bench that related to Melia’s factum. It’s not great to brush these questions off without at least a basic explanation of your partner’s position. Melia ended up not getting to that part of her argument, and it would have been disappointing for the judges if I’d promised an explanation from her but we hadn’t delivered.

I also want to say something about what a huge support your partner can be. They’re usually the first person to hear your half-baked and weird ideas take shape. Your partner can challenge you, help you understand the issue differently, and just be someone to gripe or laugh with when you need a break. Melia was all of these things to me, and I am so thankful to her for everything.

Melia: Having a partner to bounce ideas around with is one of the most valuable assets when doing a moot. There were so many times an idea would pop into my head that I knew was either crazy or clever and to have someone to bounce those ideas off was a time saver. They would either tell you it was worthwhile or maybe a little bit too far left-field. There is also an element of emotional support that is important when you are feeling down and unmotivated. Knowing that someone else is in the same position as you can help motivate you to get it done. Mooting is one of the few practical experiences you get in law school and it is important to be able to work with others. The legal profession is very collegial, you will rarely work on a file alone or without support of other lawyers. Even if a file is your own, being able to talk to more experienced lawyers or someone who has dealt with a similar file before will be a game changer and save you hours of independent research.