Borderlines Episode #12 – Tips on making written and oral arguments in court, with Justice Alan Diner

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.


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