WRITTEN ADVOCACY: CANDOUR & CONCISION ESSENTIAL GUIDANCE FROM CANADA
One of the advantages of writing a blog is that you can point out useful posts and articles. Anyone involved in legal argument benefit the guidance by John L Laskin J.A. in Forget the Wind-Up and Make the Pitch Some suggestions for Writing More Persuasive Factums.
A “Factum” is a written summary of a litigant’s position (in the Canadian courts).
John Laskin is a Justice in the Court of Appeal for Ontario. His biography shows he has written widely on the art of persusation including “What Persuades (or What’s Going on Inside the Judge’s Mind).
WHY YOU SHOULD READ THIS POST
This is written by an experienced litigator and judge. It contains a number of key points. Because the author has followed his own advice and the post is concisely written it feels like heresy to attempt to highlight key points. However here a few that, undoubtedly, travel across the pond. Reading this summary is not an excuse for failing to read the full article.
What Is This Appeal All About And What Is The Court Likely To Do With It?
” First, before you write a single word put yourself in the position of your reader, the judge.”
The Importance Of The Facts
“We are powerfully influenced by the equities of the case, by the needs of real people. If we have to, we will bend the law to reach a fair result. Most cases are decided on the judge’s view of the facts – certainly, in our court, and even in the Supreme Court of Canada.
Because we want to do justice between litigants, we are far less interested than you might think in great pronouncements of law or highly-legalistic arguments”
“(iii) Facing up to your Weakness or Difficulties: If your argument has a weakness, not only will your opponent address it, the weakness will concern the court. Far better for you to meet it head-on, than to leave it unanswered. Do not fall into the trap of thinking that if you do not address your difficulties, neither will the court.
(iv) Demeaning your Opponent’s Case: Do not denigrate your opponent’s position either by expressing it weakly or (except in the rare case) by dismissing it as frivolous and without merit. This is a common mistake. You will be far better off to state your opponent’s argument fairly – even strongly – and then refute it. Only then will you know that you have a case.”
Give The Court Credit For Knowing A Little Law
Many factums do not seem to recognize that there is a core body of legal principles and cases that is well-known by the court. These principles and cases are referred to so frequently, that every member of the court is intimately familiar with them. We do not need four paragraphs on the standard of review of a trial judge’s finding of fact
“To be persuasive, factums must be concise. Unfortunately many factums filed in our court are anything but concise. This lack of concision takes many forms.”
“Although this advice may cause mutiny among lawyers and judges, try to avoid “the fact that” expressions. Instead of writing “the fact that Carter failed to give notice, write “Carter’s failure to give notice”; instead of “notwithstanding the fact that”, write “although”; instead of “due to the fact that”, write “because”; and cut entirely “the fact remains that””
“Many factums are not properly edited. They end up looking like the first draft instead of the final product. Of course, editing runs up against the time pressures of getting your factum out. A decent edit, however, can convert a mediocre factum into a very good factum. I strongly encourage counsel to find time to edit.”
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- Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions..