How Changing Modes of Communication May Change the Law

Last week’s important Supreme Court of Canada decision on tribunal standing prompts some more general thoughts on my part. There was no oral argument on the standing issue during the hearing, which is striking given the extensive discussion in Rothstein J.’s majority reasons. Standing was argued in the written submissions, but it did not feature (as far as I could tell) in the oral presentations.

I am not suggesting that this is improper, especially as it made no difference to the outcome. But it does perhaps illustrate the changing nature of legal argument. A century ago, Canadian decisions could be appealed to the Judicial Committee of the Privy Council. Lawyers boarded ships and travelled to London for days upon days of hearings. Even in the 1960s, as a lunch companion observed to me recently, the Anisminic litigation dragged on for 13 days before the House of Lords, having already occupied 14 at the Court of Appeal. These days, lawyers are lucky to get an hour or two before they head for the airport and return to their beds in Vancouver, Winnipeg and Toronto.

As Dyson Heydon, formerly of the High Court of Australia, recounts in a fascinating essay (which is a call for a return to a bygone age), we have moved from a legal world in which oral argument was central to one in which it is marginal. Instead of relying solely on oral submissions supplemented by documents handed up to the bench to support ex tempore judgments, judges read the voluminous record and detailed written arguments before the hearing and spend weeks or months crafting their decisions. Though Heydon deplores this culture shift, it is a natural, perhaps necessary response to a much higher volume of litigation in a much more complex world.

It has knock-on effects. As the late, great Rod Macdonald explained in a fascinating podcast, the upshot is that lawyers’ means of communication have also changed. Where once they had days on end, now they have a few precious minutes. Today’s lawyers have to get quickly to the point in oral argument; and they have to be experts in building the record on which the judges will ultimately rely. A 21st century lawyer’s skillset is very different from that of his or her 19th century counterpart. The same may be true of judges, who decades ago would not have felt comfortable opining in the absence of oral argument but are now much happier to do so: no longer oracles called upon to pronounce orally at the close of submissions, they are cloistered quasi-scholars working in private on long, densely footnoted texts that engage with judicial decisions and academic literature.

There may, indeed, be more knock-on effects to come. Communication is also shaped by the wider environment. Consider the pop music industry for a moment. Whereas a decent riff or a catchy chorus would do for Motown or Abba, hit songs now have to have a ‘hook’ every seven seconds; otherwise, listeners will change the channel or sample another potential download on their smartphones. In years to come, perhaps judges mindful of the potential impact of a well-crafted 140-character tweet will tailor their compositions accordingly, writing to be tweeted rather than to be read! You may laugh, but the tribunal standing example illustrates how seemingly innocuous procedural changes can have important influences on the nature of legal argument.

This content has been updated on September 29, 2015 at 10:54.