A group of lawyers at Torys LLP assessed four years of Supreme Court hearings in a project they called Pardon the Interruption.Sean Kilpatrick/The Canadian Press
In late 2023, preparing for a hearing at the Supreme Court of Canada, lawyer Jeremy Opolsky wondered how much time he would have before the judges launched their fusillade of questions.
The general answer, he knew, was not much time at all – and, indeed, in the courtroom on a corporate bankruptcy case, Mr. Opolsky had spoken for 72 seconds when Justice Suzanne Côté interjected with a query.
Lawyers obliging and parrying questions from judges is the heart of what advocacy at a Supreme Court hearing is all about. By the time the courtroom doors open and judges take their seats on the elevated bench, volumes of written material have already been filed and assessed. Lawyers arrive with elegantly crafted arguments, but the judges didn’t show up at work to be charmed by soliloquies.
This dynamic in the justice system’s apex arena got Mr. Opolsky and several of his colleagues at the law firm Torys LLP thinking about what could be discerned from a study of how quickly the justices jump in with questions.
Supreme Court justices, from left: Michelle O’Bonsawin, Nicholas Kasirer, Malcolm Rowe, Andromache Karakatsanis, Richard Wagner, Suzanne Côté, Sheilah Martin, Mahmud Jamal and Mary Moreau, shown during a welcome ceremony in February, 2024.Adrian Wyld/The Canadian Press
In what they jokingly called a whimsical and undeniably nerdy project, dubbed Pardon the Interruption after the well-known sports talk show, Mr. Opolsky and team assessed four years of hearings at the top court, 2021 through 2024.
They found the first question from the bench lands on average two minutes and 42 seconds into a lawyer’s allotted time. Sometimes it’s much sooner. Judges asked a question of one-third of main parties within the first minute.
Of the nine judges, the study showed Justice Côté was the likeliest to ask the first question, followed closely by Justice Malcolm Rowe.
Justice Nicholas Kasirer, Chief Justice Richard Wagner and Justice Mahmud Jamal sometimes ask the first question. Justices Sheilah Martin, Andromache Karakatsanis, Mary Moreau and Michelle O’Bonsawin only occasionally make the initial inquiry.
Justice Wagner, left, shares a laugh with Justice Côté during her welcoming ceremony in 2015.Adrian Wyld/The Canadian Press
In perhaps a predictably Canadian way, judges are often overly polite when they squeeze in to speak, apologizing for interrupting, but from the view of the bench, there isn’t necessarily a deeply considered strategy about timing. In recent years, the judges meet to talk before a hearing, but the time in court is short. The two main parties are typically allocated one hour each, tops.
“You just dive in when you’ve got a question,” said former justice Marshall Rothstein in an interview. He served on top court from 2006 through 2015. “You’ve got to get it in because you’re going to get pre-empted by one of your colleagues.”
In 1998, when Ian Binnie was new to the Supreme Court bench after years of appearing there as a lawyer, he gave a speech pitched as a “survivor’s guide” for lawyers at the top court. Counsel had the uninterrupted opportunity to make their case in written arguments. “Now it’s our turn,” said then justice Binnie of the judges presiding at the hearing.
He described genres of questions, from the relatively simple to clarify a fact to those that hit like “overtly hostile fire.” Then there’s what he called crossfire, when more than one judge vies against a colleague to ask questions, but are in fact focused on sparring with each other. In such situations, his advice to lawyers was “mumble inaudibly and let the titans slug it out.”
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In a tradition-bound institution, the haphazard nature of asking questions fast and furious is an outlier of unruliness. And it is a contrast to the United States Supreme Court, where judges usually give lawyers two minutes of talking time before the questions begin.
The study of opening questions at the Supreme Court was published in the fall issue of the Advocates’ Journal, written by Mr. Opolsky and his colleagues Justine Dryburgh, Molly McMahon and Alex Bogach. Beyond data discerned from four years of hearings, Mr. Opolsky said a key lesson is qualitative: embrace the inquisition.
“Questions are a gift,” said Mr. Opolsky. “They’re an opportunity to clarify your position and address the things that are most important to the judges.”
Even though lawyers know questions are coming, and fast, on many mornings at the Supreme Court some appear to be at least semi-jarred when they first start to hit. The Supreme Court Advocacy Institute, founded two decades ago, aims to smooth the way. A group of veteran lawyers, Mr. Opolsky among them, and some former judges volunteer to prepare counsel for Supreme Court appearances in rehearsal hearings.
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Of tough questions that may almost feel designed to derail, lawyer Shantona Chaudhury advises equanimity. “You can’t let it get to you,” said Ms. Chaudhury, co-executive director of the institute. “It’s all about getting through those moments.”
She likens the intensity at the podium in front of nine leading legal minds, and the pelting of questions, to championship singles tennis, a player alone on the court.
Asked how it feels at the podium, Ms. Chaudhury chuckled: “It’s sort of fun.”
The actually scary thing would be an absence of curiosity from the bench.
“The worst thing that could ever happen,” she said, “is listening to yourself talk – no questions.”