Commercial Litigation

Substance trumps style in crafting winning arguments: Silver

By Kate Wallace, Contributor

His first time in court, accompanying a senior colleague who was bringing a motion, Toronto commercial litigator Jeffrey Silver says he got a great lesson in the quality of one’s argument versus the superficial slickness of its delivery.

As they waited for their turn, Silver was impressed with the oratorical skills of the lawyer who was arguing before them.

“He was very well-spoken and articulate, everything you would imagine from a TV lawyer,” Silver, principal of the Toronto commercial litigation firm Jeffrey C. Silver Barrister, tells

His motion, however, was denied.

Then Silver’s colleague got up to speak. He wasn’t as slick, but his argument was compelling. He won. “And that’s when I thought, it’s the content, not just the form,” Silver says. “It’s the substance, not just how it looks.”

Silver says he relishes the courtroom aspect of litigation, but this wasn’t always his top choice for a practice area.

Following studies at Osgoode Hall Law School, where he graduated in 1986, Silver started out in corporate law, articling for a boutique securities firm. But he says he wasn’t suited to the work. Silver says what interested him in principle in law school was dull in practice.

After his articles, he worked with a litigator and found in it a much better fit.

“It just seemed much more interesting to me,” he says. “You had to continually update and research and learn about the law, which I still love doing. And it was kind of exciting to go to court.”

Nearly 20 years ago, Silver founded his own firm.

“Time flies when you’re having fun,” he says.

Silver represents businesses, professionals and individuals before all levels of trial and appellate courts and in Alternative Dispute Resolution (ADR) proceedings.

He has acted for clients in a wide range of professions, including architects, accountants, manufacturers and small business professionals. His practice has a particular focus on construction and construction lien law.

While Silver is a sole practitioner, he enjoys the collegiality of the profession and the bar.

Along with his practice, he is active in the profession. Silver helps develop legal ethics and professionalism seminars that are accredited by the Law Society of Upper Canada and spent a number of years on the executive committee of the Ontario Bar Association. He is now an active member of the Advocates’ Society.

He collaborates with other firms on his files, where appropriate, and brings in freelance lawyers when he needs support on a case.

“It is just fascinating — the cases and the people that you meet,” Silver says, including clients, many of them immigrants, as well as experts in a range of fields. “You get to learn about all kinds of things.”

Silver says he learned a great deal about French neoclassical architecture in one case. He began to spot elements inspired by, for example, the palace of Versailles around Toronto.

“You’ve got corbels and volutes, and angel faces and lion faces,” he says. “You learn things. You can pretend you’re smart,” Silver quips.

He recounts one case, in which his client made architectural precast, a less expensive alternative for natural limestone that can be used to make incredibly intricate designs.

In this case, his client’s customer wasn’t happy with the finished product, claiming it was discoloured.

Silver argued that the variations mimicked real limestone, and he says he had fun in court taking apart a so-called expert who revealed he was not able to distinguish between real limestone and the precast.

“Cross-examination at trial is something I really enjoy,” Sliver says. “If you know how to properly prepare, the witness really has no chance. Because they’ll have no idea where you’re coming from. And when they think they’re helping themselves, they’re just burying themselves deeper. So that’s kind of fun.”

Almost 20 years ago, Silver took a cross-examination course offered by a pair of American lawyers who teach their simple, yet highly effective methodology.

“I’ve put it into practice and it’s really worked well,” Silver says. “You get one basic fact, one fact at a time, and build from there.

"Think of an inverted funnel. Once they get down to the bottom, they can’t escape back up. When you come to the punch line, either you get the answer you’re looking for or you destroy their credibility — or both.”

Silver describes his courtroom style as calm, cool and collected, which he says is not incompatible with zealous advocacy.

"By being more civil, you’re often doing a better job for your clients,” he says.

And it’s a much better way to stay in the good books of the judges.

“Judges want that more and more,” Silver says. “They want more civility.”

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