ADVOCACY THE JUDGE’S VIEW: SERIES 2 PART 8: EFFECTIVE WRITTEN SUBMISSIONS: “FIRST IMPRESSIONS COUNT” & THE “CHUNKIFICATION” OF ARGUMENTS
This series certainly takes us around the globe. Here I am looking at a paper written by Justice Susan Glazebrook, a judge of the Supreme Court of New Zealand. Her paper on “Effective written submissions” written in 2014. As always the aim is to persuade you to read the original, available here Effective written submissions
“The written submissions filed before the hearing will be your first real opportunity to persuade. Do not squander that opportunity. First impressions count.”
YOU NEVER GET A SECOND CHANCE TO MAKE A FIRST IMPRESSION
The paper makes a number of points.
- Judges will usually come to a preliminary view of the case on the basis of written submissions.
- “Judges… can be steered away from preliminary views by your brilliant advocacy but it is usually better to have them in your camp, or still unsure, before the hearing starts”.
- The written submission will not only be the first impression, they will be the last impression too.
“They will endure long after your brilliant or not so brilliant oral advocacy has faded. They will often be more important in that post-hearing process than the judges’ dim memory of the oral hearing, their more or less coherent notes taken at the hearing and the rather chaotic and often disjointed transcript of the hearing.“
THE DUAL ROLE OF WRITTEN SUBMISSIONS
Written submissions have dual role:
- To introduce the judges to your client’s case.
- To persuade them to accept it.
MAKE THE FIRST PARAGRAPH COUNT
“Capture the essence of the case at the beginning of the written submissions. The first paragraph should outline the essential facts and issues of the case. As you would explain it to an interested, but slightly distracted friend over coffee.
Your description of the essence of the case, if skilfully done, will set the scene for a decision in favour of your client. But subtlety rather than overt partisanship will be more persuasive.”
THE SIX C’s
“Speak English, not lawyer in your submissions.”
Some good examples are given in the text of the difference between “legalese” and straightforward English.
“Use short sentences. One idea per paragraph. Keep adjectives and literary flourishes to a minimum. An argument can ironically appear weaker if it is adorned with hyperbole and adjectives.21 Make sure your submissions are logically structured, pleasingly arranged, with plenty of road signs”
The maximum page rule is a limit not a target.
“Edit, edit and edit. Be ruthless. Dare yourself to cut out half and even half again. As Justice Louis Brandeis said, “[t]here is no such thing as good writing. There is only good rewriting.””
“While your role is to persuade, this must be done in an ethical manner. So you have a duty to put before the court contrary authorities and not to misrepresent the facts or the law.
Candour more generally can be seen as a powerful weapon of advocacy. Know and deal with the weak points of your case up front. Do not leave out inconvenient facts but try and place them in the best light. The same applies to contrary authorities.”
“Typos make you look sloppy. Inaccuracies in the facts and the law are even worse. Get someone to check your work. You can get too close.”
Here the advice is not to attempt to tailor your submissions to the perceived view of one judge. You risk alienating other judges. If you try pleasing everyone you may end up with “an incoherent mishmash”
“A term coined by my very dear friend and colleague, the late Sir Robert Chambers. By chunkification, he meant that you should split the argument into organised bite sized chunks with headings and subheadings”
“Even if your submissions are of necessity long, they will be more easily digested in chunks. Further, by dividing up the submissions, this helps you to identify the issues arising in the case and to set up a logical structure for your submissions, which leads inexorably to the conclusion you want the judges to arrive at. Your task of persuasion will be much easier if the judges can easily see where the argument is going.
There can be a subsidiary reason for chunkification. It can help in the task of persuasion, particularly for busy courts. It will save the judges’ time if they can structure the judgment on the basis of your submissions.”
THE RELATIONSHIP WITH ORAL SUBMISSIONS
The Justice makes what may seem an obvious point that “The oral submissions should be related to the written submissions”. You do not read the submissions out, nor should the structure of the oral submissions necessarily follow the structure of the written submissions.
“But there is nothing more annoying to the court (and it is always better to avoid needless annoyance) than to have senior counsel brush off the written submissions and present a totally different case. It is also not wise.
Remember that the written submissions are both the first and last impression. So make sure that senior counsel have input into what is filed. This is not to say that you should not present orally the brilliant argument you thought of in the early hours before the hearing (although test it in the full light of day first) but this should be relatively rare and usually in addition to, and not in substitution for, arguments made in writing.“
YOUR REPUTATION IS PRECIOUS
“One of your most valuable assets as a litigator is your reputation. Work at developing a reputation for top quality work and integrity. A good reputation will assist in your dealings with other litigators and the court.”