Tough Cases v. Entitled Toddlers

Anna Welch, University of Toronto Faculty of Law, Class of 2024, Volume 82 Forum Editor

Useful connections between parenting and litigation are not immediately obvious unless you cynically picture disgruntled clients as entitled toddlers.

However, the parallels are there and worthy of reflection. Where approaches to parenting and litigation come together to say the same thing, the overlap can provide a good lesson for lawyering—and perhaps life—in general. A popular parenting book, No-Drama Discipline: The Whole-Brain Way to Calm the Chaos and Nurture Your Child’s Developing Mind provides a basis for comparing litigation to parenting, pulling from the author’s expertise in psychiatry and psychotherapy.[1]

In this article, I will share three lessons about parenting that can help you be a better litigator. These parenting lessons highlight essential techniques for good litigating as observed by Justices John I. Laskin and David Stratas.

Lesson 1: Pick your battles.

Constantly harping on your children is not good for either of you. However, I concede that deliberately letting things slide is hard. In litigation, not every arguable point should be argued, especially in the courtroom with a busy judge. In both contexts, you will get the best results if you can strategically bite your tongue. Encouragingly, as a parent, I notice you get better at it with practice, though my tongue is somewhat scarred. The same seems to go for litigation. Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers highlights how early-career litigators do not always know when it is tactically best to hold back, for example, on an objection to hearsay—but also how they learn with time.[2] 

Lesson 2: Be concise.

The second lesson is briefly summarized as:

-              “Reduce Words”– No Drama Discipline.[3]

-              “Writ[e] Concisely”– Justice Laskin.[4]

Justice Stratas explains in a piece about how to write for judges that “[c]omplex and more nuanced messages often trigger wariness and caution”.[5] For kids, long, convoluted speeches trigger glazed eyes and, depending on their age, wandering away. In law and parenting, it is usually best to keep it short and to the point.

Lesson 3: Persuade, don’t preach.  

The last and perhaps most impactful lesson I will mention is based on a strategy in No–Drama Discipline that the authors summarize as “Describe, Don’t Preach”.[6] They recommend that you share factual observations with children to curb unwanted behaviour. For example, saying “I notice there are crayons on the ground” instead of “pick up those crayons.” Making demands and asserting your dominance puts children on the defensive. They might do what you tell them, but they are less likely to reflect on the impacts of their behaviour and learn for the next time they are tempted to use craft supplies as projectiles.

This “observation” approach aligns with the advice given to litigators to let the facts speak for themselves. According to Justice Stratas, litigators’ tones should be clinical and matter-of-fact, not hectoring.[7] Judges, says Justice Stratas, see themselves as autonomous and prefer to draw their own conclusions, instead of having assertions imposed on them. No Drama Discipline says kids are effectively the same. It is better if kids reflect and form their own opinions about when they hit, yell, or lie, with a parent’s education on the consequences of those behaviours in the back of their mind, of course.

Justice Stratas has specific advice about how litigators should let judges come to their own conclusions:

Remember that the judicial mind needs to be educated and persuaded that a particular set of facts is true. Your job is not to assert factual conclusions, it is to empower and enable the judges, by providing them with useful information, to draw factual conclusions in your client’s favour.[8]

If you replaced ‘the judicial mind’ and ‘the judges’ with ‘a child’, and ‘in your client’s favour’ with ‘about where the crayons should go’, this could be an excerpt from the No Drama book.

Why is there so much overlap between successful parenting and litigation? Both are forms of communication requiring equal parts education and persuasion. You must teach a child your family’s rules, preferences, and the ways of the world, and then persuade them to act in line with them. Similarly, litigators inform a judge of the facts and law of a case, and then convince the judge about how the facts and law support your argument. In both practices, you are putting someone else’s interests above your own.

You do not need to be a parent to be a great litigator, but I will take any help I can get to be the best lawyer possible.

[1] Daniel J Siegel & Tina Payne Bryson, No-Drama Discipline: The Whole-Brian Way to Calm the Chaos and Nurture your Child’s Developing Mind (New York: Bantam, 2014)

[2] Paul Brest & Linda Hamilton Krieger, Problem Solving, Decision Making, and Professional Judgment: A Guide for Lawyers and Policymakers (Oxford, UK: Oxford University Press, 2010) at 5, 16–19.

[3] Supra note 1 at 170.

[4] John I. Laskin, “Forget the Wind Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums" (Summer 1999), online: ≤ https://www.ontariocourts.ca/coa/about-the-court/archives/forget-the-wind-up-and-make-the-pitch-some-suggestions-for-writing-more-persuasive-factums/>.

[5] David Stratas, “Writing up the facts and winning big:  Some secrets of the best writers of legal submissions” (Paper presented at the Advocates’ Society Spring Conference, Toronto, 2011) [unpublished] online: ≤https://www.davidstratas.com/writing/facts_stratas.pdf> at 3.

[6] Supra note 1 at 179.

[7] Supra note 5 at 11.

[8] Supra note 5 at 4.