Gary Joseph | Oct 2023

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

Family lawyers consider the truth of our client's claims every day. It is part of the process we engage in of weighing the merits of the case that we may have to present in court. I quickly note that we are not the judge of the truth, but our task involves assessing the information we receive to better advise our clients on a go-forward strategy. The truth matters and our job involves drilling down to find it.

This week we lawyers had a fine example of the steps necessary in the process of truth  determination arising from the continuing tragedy of the war in Gaza. Again, I feel compelled to assure my readers that the death of innocent civilians, Israeli or Palestinians, is abhorrent to me. All victims of war must be mourned with equal regret. However, the explosion at the hospital in Gaza is illustrative of how the truth of an event can be twisted, and how one can push back against falsehood and establish the truth of an event.

Immediately after the explosion became known, the anti-Israel voices were out condemning the Israel Defence Forces (IDF) for "war crimes" against innocent civilians. Some of our well-known politicians jumped on the bandwagon as did many prominent newspapers. In contrast, the IDF and Israel quickly conducted a granular examination of the forensic evidence available and then presented, in the manner of a skilled trial lawyer, its case. Careful charts were submitted, videos obtained from overhead drones were presented, alternative theories of causation were discussed and analyzed. Thereafter, the IDF representative presented Israel's conclusion to the listening audience. Please forget for the moment the politics of this. This was a stellar performance.

I cannot say for certain that the Israeli position is correct, but I would argue that the analysis presented, evidence based, would at least pass the civil test of a balance of probabilities and perhaps even the criminal test of beyond a reasonable doubt. This is a valuable lesson in advocacy. In this case the court was the world stage, but the presentation was what can be expected in our courts of law by experienced counsel. Take this opportunity to integrate this approach into the analysis of the claims and "evidence" presented to you by your clients and those of the opposite party. Conduct the granular examination of it, discard what is not credible, consider the case your opponent will present and your answer to it. Organize your presentation to the court in the manner described above.

Let me conclude with what I have preached to our associates for years. Court or arbitration is the last alternative to the many ways that family disputes can be resolved. But for those few and far between cases that go to trial, your job as counsel is to try to convince the court of the justice of your client's position. Don't go to court just to go to court!

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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