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Written Submissions - Perspectives from the Bar, the Bench and Beyond Print E-mail

pen_sword_intro.jpgThe Hon Richard Chesterman AO RFD QC presented the following paper at a CPD seminar held  on 6 June 2013.

I last practised as an advocate in 1998. At that time, as best I can recall, the only rules obliging one to furnish written submissions existed in the Court of Appeal and the High Court. There a short synopsis of argument was given to the court at the commencement of the oral hearing. The first President of our Court of Appeal introduced the requirement for written outlines, well in advance of the hearing, shortly after the establishment of the Court in 1991. There were, I think, no other occasions on which one was obliged to give a court written submissions, though on occasions it was done in applications and usually done at the end of a trial. I mention these things not to show my age but to justify my ignorance of the particular rules and practice directions which now make written submissions compulsory. Because of that ignorance I have not directed this paper towards informing you of the particular rules and requirements with which you should any way be familiar. Mr Bond, in at least one paper delivered as part of the CPD program, has addressed some of those requirements.

I should acknowledge my use of Mr Bond's paper and of the two articles he identified which I also consulted. They are "Writing a Better Brief: a Useful Guide to Better Written Submissions in Appellate Advocacy" (2002) 22 Aust. Bar Rev. 149 by Andrew Baida, Solicitor-General for the State of Maryland and Justice Haynes' paper, found on the High Court's website, "Written Advocacy", delivered to the Victorian Bar in March 2007.

My intention in this paper is to address the use of writing in the profession of advocacy. Written submissions have to be understood in that context. They are one aspect of the overall art of persuading a court to a particular point of view. Apart from written submissions forming part of the closing address after trial, written submissions will be the first opportunity a barrister has to inform the court about the nature of the dispute to be resolved and to put forward the client's case. Written submissions are, for that reasons, very important.

The focus of what I want to say is directed to the more junior members among you. It may be therefore of little help to those of you with some years’ experience, and if that is so, I apologise but I thought to the extent that I can offer any assistance it is better directed to those with most need of guidance.

The sole purpose of written submissions is to persuade the reader, the judge, to come to a particular decision on a question of fact or of law. It is essential therefore that you describe very early on in your submissions what it is you want the judge to decide and why he or she should decide it as you want rather than as your opponent wants. Your submissions should be organised and developed to achieve your purpose. It is very important that you identify early on what your point is and why you want it decided a particular way so that the judge will read the rest of the submissions, and your opponent's, and the materials in the case, with that in mind. You want the judge to read those other materials, with an understanding of your case, and by reference to your arguments.

Can we start at the most basic point? Submissions, when a part of written advocacy, find expression in written words. Words are the tools of trade of barristers and infelicities of expression, lapses of grammar or misuse of words which may pass unnoticed in oral presentations, are usually obvious when written. The proper use of language and words is therefore essential. Writing submissions is, I think, easier if one enjoys words and their use, but even if one finds writing a chore rather than a pleasure, one should always respect the tools of trade, the words which are used to express submissions.

a_to_b.jpgIt is essential that a barrister own more than one dictionary. I think a thesaurus is useful as well. The choice of dictionary is of course personal, though I think the Macquarie is necessary, given its particular Australian emphasis. My favourite was Chambers, but any good dictionary will do. I found the Oxford thesaurus convenient in layout, and comprehensive, but again any good one will do. It is customary in addresses on this topic to recommend the use of style guides, but I never used one, getting by with occasional reference to Fowler's Modern English Usage and an Oxford Dictionary of Grammar. Reference works are a matter of personal preference.

You may think this point too obvious to mention, but clarity of expression denotes clarity of thought and a wrong use of words or the use of the wrong word will be noticed by the judge and may create the impression that your submissions are not carefully thought out.

All of the papers I have consulted on this topic, and the practice directions regulating written submissions themselves, all of them, in different ways, stress the need for economy and simplicity. They impose limits to how long submissions may be, so unless you have a very simple case, you will often struggle to contain what you want to say within the limit. Even in cases where the limit is not a problem, it is best to be as brief as possible. You should practise expressing your arguments as economically as possible. Let me give two examples. I have taken them both from the works of novelists and I acknowledge at once that written submissions should not be works of fiction, but writers of non fiction are still writers, and writing of any type is a craft. One can learn from good writers of fiction.

"After a while I went out and left the hospital and walked back to the hotel in the rain."

That is, of course, the famous last sentence from "A Farewell to Arms", Hemingway's novel. That simple sentence, describing one action in one circumstance, evokes the whole sense of loss, despair and hopelessness with which the action of the novel ends. Hemingway wrote and re-wrote that last sentence 47 times before he was satisfied with it. I suspect that none of us has the energy or the time to do that with submissions, but there should be a constant search for the best possible expression and a critical self-assessment of what we have written.

typewriter.jpgI recommend Hemingway as a guide to conveying meaning with a sparse use of words. Once as a young writer, he won a prize for the best short story in six words. His were:

"For sale:

Baby's shoes:

never worn."

It is possible to say a lot in a few words.

Compare Hemingway’s sentence to:

"Its vanished trees, the trees that had made way for Gatsby's house, had once pandered in whispers to the last and greatest of all human dreams; for a transitory enchanted moment man must have held his breath in the presence of this continent, compelled into an aesthetic contemplation he neither understood nor desired, face to face for the last time in history with something commensurate to his capacity for wonder."

This is not the last sentence of "The Great Gatsby": it appears in the penultimate paragraph. I chose it because of its topicality of course, but also because it is by an American writer of the same era as Hemingway. The contrast is immense. Fitzgerald's language is bombastic, the sentiment is pretentious and the thought is difficult. The intended effect is lost.

All you need to know on this topic can be expressed in two words which you should constantly bear in mind when writing submissions. The words are brevity and clarity. Within this latter term I include accuracy both of fact and law. Brevity and clarity: keep them in mind whenever you sit down to compose submissions.

Submissions cannot always be brief. Final addresses after a long trial can’t be. But submissions should always be as brief as the circumstances of the case permit. They must always be clear and accurate. I have emphasised brevity already in my references to Hemingway and his prose. It is a feature judges appreciate. I mentioned to one of my former colleagues that I had been asked to give this paper and he said immediately: "Tell them to keep it short." Judges read a lot. It is part of the burden of the office. Written submissions should help relieve the burden not add to it. You will do that and gain the appreciation of the judge if you make your submissions as brief as possible, always relevant and clearly expressed.

Judges and barristers have different perceptions about written submissions. The barrister naturally and obviously sees them as the expression of the client's case. It is natural for them to put forward one side of the case. Judges, I assure you, want to reach the right decision, that is the right legal decision, by reference to the facts that have been found or ought to be found. A judge therefore most prizes the submissions which will help him or her to that decision. Submissions that do that will be analytical rather than narrative in form, will be accurate in analysis, not diffuse and will contain cogent reasons for preferring one conclusion rather than another.

Baida cites an American authority on legal writing:

"Any piece of persuasive or analytical writing must deliver three things: the question, the answer, and the reasons for that answer. The better the writing, the more clearly and quickly those things are delivered."

This is a useful encapsulation of the objectives of writing submissions. I have tried to say the same thing in different words. According to Justice Hayne, written arguments should be prepared:

"…in a way that focusses the reader's mind upon the determinative issue or issues in the case, explains how that issue should be determined, and why it should be determined in favour of one side rather than the other."

Baida also suggests an acronym "IRAC" meaning Issue, Rule, Application and Conclusion. He suggests that this formula is useful in providing a framework for all written appellate submissions. There is no reason, I think why it should be limited to appeals. The fuller version of the acronym is:

"Begin the argument by (a) succinctly identifying the central issue that the appeal presents, (b) stating why that issue was correctly or incorrectly resolved below, (c) set forth the applicable law, and (d) say why the law supports your position."

The framework may have to be adapted to circumstances. The "issue" may be one either of fact or of law. In a case involving questions of fact only it will be unnecessary to say much if anything about the law. There are, of course, rules of law applicable to appeals against facts and submissions in such a case should at least provide the court with a reference to the relevant cases, although it is probably unwise to teach the court "how to suck eggs" by a long exposition of the principles.

Written submissions are useful in at least two stages of litigation. 1. When they are given to the court at the commencement or at the end of the hearing. 2. When the judge writes the judgement.

When I was writing judgments, having come to a conclusion about what was the correct legal decision in the case, I used to compile the reasons by reference to the submissions from the side I thought should lose. I did so for two reasons. The first was to acknowledge the force of Sir Robert Megarry's observation that the losing litigant deserves a careful explanation of why it lost. The second, and for me the more important, reason was to make sure that I had not overlooked or misunderstood or undervalued a point that might have changed the decision. Working through the losing side's submission was a checklist for the correctness of the judgment. It follows that a function of written submissions is to make it harder for the judge to reject your arguments and to make him or her think carefully about your case. But at the earlier stage, when the judge is working out which side has the better case, you want him or her to go to your submissions, and to get most help from them.

Your submissions should, at a very early stage, explain what is the particular point or points the judge is to decide so that he or she can read the balance of your submission, and your opponent's, and the other materials in the case, with that point in mind so that he or she understands how it fits together and what relevance or lack of relevance to the point the material has. Justice Hayne calls this "framing the case" and it is as important as he says. There are ways of doing it and he gives illustrations which are worth repeating. His examples are taken from an American text on legal writing which in turn took it from an actual case.

The case in question was framed this way.

"A Turk, having three wives, to whom he was lawfully married, according to the laws of his own country, and three sons, one with each wife, comes to Philadelphia with his family, and dies, leaving his three wives and three sons alive, and also real property in the State….Will it go to the three children equally, under the intestate law of Pennsylvania?"

The question is interestingly described and compels attention.

An alternative formulation which might have commenced the submissions is:

"Are the plaintiffs entitled to share equally in the intestate estate of the deceased?"

This version poses an abstract question. It is devoid of factual context and tells the judge nothing about what has to be decided.

A third alternative would be to provide unnecessary facts and cloud the question with distracting irrelevance. So if the statement added the dates and places where the marriages occurred, the names and birth dates of the sons, the identity of the real estate and its value, such things would add nothing of significance and tend to obscure the point.

The point of distinction between the three approaches is that the first, which is obviously the best, puts the question to be answered in the context of the material facts, but only those necessary to define the question. The second being devoid of all fact expresses an abstract question and does not tell the judge what has to be decided. The third with its recital of unnecessary fact would at best annoy and at worst distract the judge from considering the real question.

Brevity and clarity are the guiding principles. How much brevity is a question for judgment.

Judges take judgment writing seriously, as barristers should take writing submissions seriously. There is a National Judicial College of Australia which among other things has published papers which contain reflections by judges on the craft of writing judgments. I consulted one such publication for the purposes of this paper to see what, if anything, judges had to say about written submissions. Several of them made the same point: that barristers put things in written submissions they would never dare say face to face to the judge in court. My own experience did not suggest that that was a huge problem, but I did observe the phenomenon, which you should therefore try to avoid. Apply your own "drivel" filter and if in doubt ask yourself "would I be prepared to say this to the judge in open court?"

clarity.jpgThe content of submissions and their organisation must take account of the audience to which they are directed. The style of submissions will differ depending on whether they are for use in the applications list or are closing submissions after a trial, or are outlines in an appeal, and will differ in that case depending on whether the appeal is on a question of law or of fact and whether they are in support of the appellant or respondent.

Take the case of the applications list. Applications judges are often very busy and always think they are. Submissions to them should be framed to identify immediately what the point of the application is, what statutory provision justifies the application (or precludes its success) the orders sought and the briefest possible recital of the facts so the judge understands as soon as possible what issues have to be decided. Some applications do not lend themselves to attractive packaging or brevity. If you have a tedious dispute over particulars or disclosure you have to accept that fact (and hope the judge does) but even in such cases you can analyse and organise the material to make the dispute digestible. Always remember the judge is looking for assistance in identifying the issues, the relevant facts and the applicable law. Remember also that you cannot win the case if you do not make the judge understand it.

The content and format of trial submissions will obviously depend upon the issues of fact and law that were fought at the trial. Where the facts are in issue written submissions should identify the facts you want found in your client's favour and should collect the evidence in support of those facts, and of course deal with opposing contentions. An approach which is analytical is preferable to a narrative, especially if the narrative contains long summaries of all that the witnesses have said. Long quotes from the transcript or affidavits should be avoided. Summaries should be attempted unless there are critical passages which should be rendered as briefly as possible. You have a captive audience but take pity on the prisoner, and make your submission as easy and as helpful as possible.

Submissions on appeal will take their tone from the nature of the appeal. Are you appealing against findings of fact? If so, you must explain the the importance of the impugned facts to the judgement, identify the facts and explain why they are wrong. Avoid emotion: be precise and analytical. Is the appeal on a question of law? The question must be identified early in the submissions, put in context and the error explained. Are you seeking leave to appeal? The submissions must show succinctly the error and explain why an appeal is necessary to correct it. Avoid long statements of principle and reference to the facts of other cases. Your task is to explain why your case should get leave.

In all these examples when preparing the submissions, you must analyse what the case is about, what your point is, and then organise your submissions to put the point in context, provide the court with the appropriate materials to decide the case and advance your arguments in support of your contention.

Brevity and clarity are all important: analyse and organise to achieve brevity and clarity.

word_pile.jpgOne easy way to help keep submissions brief is to avoid the use of adjectives and adverbs and adjectival and adverbial phrases. They are unnecessary and avoiding them does aid economy of expression. They can too often be used to bolster otherwise weak arguments. Declarations such as "obviously" or "clearly" or "it is beyond doubt", if true, do not need to be said. If untrue they suggest foolishness in the writer.

Similarly, to describe a point which is in contest as "incorrect" or "erroneous" serves no purpose. Your argument will establish the error or it won't. If the judge does not think your proposition "obvious" or that your opponent’s proposition is "erroneous" you will simply annoy him or her for no good reason and leave your judgment open to question. Another way of making this point is to say that while your submissions will develop and present an argument, they should not be argumentative in style.

Just as adverbs and adjectives are unnecessary, and may be damaging, so too is bombast, pomposity or exaggeration. Language of that kind is not effective advocacy. It makes most judges recoil. There is a passage I like in Baida's article:

"When you write that your opponent's argument is "ludicrous" and "beyond the reach of any reasoning mind", you offend the court for no reason if the judge reading your brief has any inclination at all towards that conclusion."

I mentioned that I include accuracy within the rubric of clarity. Accuracy is absolutely essential. It is more obviously so when you are dealing with facts. If arguing that particular evidence should lead to a particular finding of fact, you must be scrupulously accurate with your recitation of the evidence you say supports the finding. Nothing will annoy a judge more than to ascertain your description of the evidence is mistaken. It adds to the judicial burden of examining the evidence. More seriously, the judge will lose confidence in what you have written. He or she may prefer your opponent's submissions if they can be relied on. Every statement of fact in your submissions should be supported by reference to the transcript or record. It is best to do this by footnotes rather than add to the body of the submissions thereby increasing their length. It may be appropriate to reproduce in full a short passage if it is of particular importance.

Obviously accuracy imports fairness, but within those limits you should state the facts as effectively as you can to support your argument. If the facts support your case, then marshalling them according to logic, stating them accurately with detailed citations to transcript or record, will amount to very effective advocacy.

For your advocacy on questions of fact to be effective, you must also deal directly with those which are adverse to your argument. It is weakness not to confront facts or points that are adverse: you must answer them as best you can. Not doing so will give your opponent a substantial advantage with those facts and might lead the judge to think either that you have no answer or that you are misleading the court by not referring to them. Either impression is a bad for your client and perhaps your own reputation.

On the question of facts, I repeat something said already. You should make use of only material facts, only those which are needed for the point you wish to establish or attack. If you are reciting evidence to support a finding of fact, the same applies: refer only to what is materially relevant to that finding. Reference to unnecessary or irrelevant facts distracts the court from the finding you wanted to make and weakens your argument.

Headings and even sub-headings are usually helpful, especially if the submissions are more than few pages long. Headings can be useful aids in the organisation of your argument and can display to the court an overview of your case and how the argument is developed. They are also useful collection points for the materials of fact and law relevant to a particular part of the argument. Baida suggests that headings which consist of complete sentences that capture the theme of the discussion under the heading is a useful form of advocacy. I don't know that that is usually done. It is not my own habit but I see the sense in it and it may be worth trying. If you do, I suggest you keep the sentence short and simple.

There can be dangers in making headings too brief. I once sat on an appeal involving a multitude of parties, appeals and cross appeals. The outlines were long and dense. One counsel who provided the court with submissions in reply, identified them by reference to a particular party whose submissions were being answered. The party's name was "Turner" or something like that. The submissions were designated "ROT", an acronym for "Reply Outline Turner". Needless to say the submissions were the subject of pointed comments from the bench.

Although you should be as brief as possible, sometimes, particularly after a long trial, or in a substantial appeal, the submissions will necessarily be long. Depending on content and length it may be appropriate to provide an index or a table of contents or a table of the principal witnesses. Chronologies are often useful and helpful in understanding the facts of a case. In litigation with multiple parties, it can become confusing to refer to them by their designations, i.e. "third appellant", "fourth cross respondent". It is often best to use names (but never Christian names or nicknames!) explaining at the outset the name you have used in place of "appellant" or "defendant" as the case may be.

When dealing with questions of law, I suggest you limit the number and length of quotations from judgments. You should also provide a context of factual proposition for the reference to the case. The point for which the case is cited as authority should be described to allow the judge to understand the significance of the quote. As an alternative to reproducing long quotes you can paraphrase and give a reference to the passage which supports your paraphrase. It can be very effective to reproduce part of a judgment but it should be only one or two sentences which encapsulate the point you want to make.

As with facts it is absolutely essential to be accurate about the law. Nothing annoys a judge so much as to be told a case supports a proposition when it doesn't. I do not suppose anyone would deliberately misstate the law but it is possible to read a sentence or a paragraph in a judgment as an abstract proposition which might support a particular argument, but when you look at the sentence or paragraph in the context of what the case was deciding, the paragraph is to be understood differently.

To say this is to say simply that when preparing submissions one must be careful and thorough.

Lastly, I stress the need for review and revision of what you have written before you submit it. If at all possible, I suggest you leave at least a day between completing the submissions and revising them. When you come back you should do so with a clearer mind and you will read what you have written more objectively than when you have fresh in your mind what you intended or believed you had said. Such an approach would surely have detected the description of one's own submissions as rot.

You should, of course, carefully proof read your work and check that your grammar is correct and that the punctuation assists meaning. Ask yourself the questions: what is the point I want to make? Have I made it clearly? Will the submissions help the judge understand my case and be persuaded to accept it?

My last words are:


ANALYSE and ORGANISE the facts and law

to achieve


The Hon Richard Chesterman AO RFD QC

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