It’s the inherent job of a lawyer to advocate for their clients but a good lawyer will understand that advocating too strongly can exacerbate the situation rather than resolving it.
Justice Marvin Kurz, a Supreme Court judge in Ontario, wrote a scathing judgement reprimanding counsel in Alsawwah v. Afifi 2020 ONSC 2883. He said that the court application spawned a “rhetorical fierceness that one would expect of a mixed martial arts cage match.” He noted that family litigation is “too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective.” Justice Kurz, who had praticed family law for many years as a lawyer and a judge, also noted that “Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.”
Justice Kurz provided advocacy guidelines that encourage “resolute advocacy” but caution that “rhetorical excess is the enemy of good advocacy.” The courts support counsel and clients who take the moral high ground and resisting the urge to respond in kind is often the better move. In his words, “a pebble worth of proof is worth a mountain of innuendo or bald allegations.”
Deborah A. Todd