In an appeal, everyone who has lost a case has sometimes felt the urge to viscerally complain about some aspect of the decision.
A recent decision of the Quebec Court of Appeal reminds us of the importance of making tempered criticism of the trial judge. Overstated criticism can even affect the overall credibility of an argument. In Dunkin Brands Canada Ltd. v. Bertico Inc., the Court of Appeal began its reasons with a dissection of the language used by the appellant in the factum, referring to “gross errors of law”, evidence that was “almost completely ignored” and “blatant” mistakes of fact. The Court was critical of the “dramatic tone” for the argument and the “harsh” characterization of the judge’s work.
The message for appeal factums? Be careful in your criticism of the trial judge. Credibility was lost through overstatement that was not ultimately not required for the argument.