Hearsay ... the Journal of the Bar Association of Queensland
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Issue 70 - Oct 2014
Written Advocacy Print E-mail

why_not_intro.jpgThe experienced advocate senses real danger when a judge asks: “Why isn’t that right?”  The import is obvious.  The opponent’s argument has already been accepted as plausible, if not convincing.  From that point on, you are playing catch-up.

In the course of advocacy, opportunities arise to gain that early advantage; to establish in the judge’s mind the innate plausibility and rationality of your argument.  In an age when written outlines are the norm, that opportunity is – at least as often as not – to be exploited in writing.  

Coupled with that opportunity to gain early advantage through written effort is the perfecting of it whilst on your feet in court.  For reasons we explore below, you need to have that in mind whilst writing.  Your written advocacy should set scene and fabric for, rather than entirely anticipate, oral argument.  But it should be substantive – not just ‘dot points’ or a glorified palm card.

Of course, over centuries, oral advocacy has been a central feature of our judicial system.  That developed in an era before modern communication, and the capacity which computers provide to us to produce and marshal massive volumes of information.  Those developments have meant, amongst other things, that it is feasible to produce much greater volumes of information in both civil and criminal litigation.

One result of that is that judges now have to sort through vastly more in the course of disposing of cases.  Oral advocacy offers them little, if any, assistance in that task.  At the most pragmatic level, an address in which one takes the judge through an entire trial bundle in open court would consume more sitting time than ever could be found across the list.  In that context, written submissions are as valuable as a guide to the mass of facts as they are in their illumination of principle and urging of competing arguments.

Winnowing the essential from the inessential and making the potentially telling things more obvious is critical.  Like much good art, in written submissions there is a distinct virtue and power in minimalism.  That does not preclude detail, of course.  Indeed, where the persuasive value of a matter needs to be detailed then the fact that it is accorded a lengthier treatment than sparer language of other parts of the submission carries its own effective message.  The reader is more likely readily to assent to the need for close study because the author has been discriminating in when to impress a matter at some length.

That said, prolixity in submissions is all too frequent.  Matters deserving attention are obscured by the less important, and frequently by the irrelevant.  As often as not, this arises from the failure of the advocate to exercise judgment as to which points are central, as distinct from peripheral or irrelevant.

Exercising that kind of judgment can be daunting.  Sometimes it involves abandoning a point that, whilst only remotely viable, is nevertheless viable.  There is an understandable instinct to avoid the criticism of having missed a point by including every point.  There is risk in abandoning a point.  Nevertheless, that kind of discrimination is essential because it clears the way for your best argument to be advanced, and your best chance of success to be pursued.

Of course, there are plenty of cautionary tales at the other end of the spectrum.  Just as there is a risk in abandoning the barely arguable point, there is a risk in taking the opposite approach of running every single point.  You will be of little value to litigants if you develop a reputation as someone who cannot see the wood for the trees, or as someone who throws every possible argument against the wall to see what sticks.  Our capacity to convince judges depends in part on their accepting that we will not waste their time; that what we tell them has been distilled to what is viable.

Allied with the need to focus on the most effective argument is the need to confront the problems for your side of the case.  Confronting those in writing has the advantage of making it clear that you always intended to deal with them, as distinct from being ready to answer the problems, but only if they are apprehended.  It engenders confidence because, to quote Sir Owen Dixon, “[c]andour is not merely an obligation, but … in advocacy it is a weapon”.1

As we said in the introduction, there is real advantage in engendering an early view that your argument is plausible; of getting the judge to the point of rehearsing key integers of your argument to your opponent and asking “why isn’t that right?”  Judicial preparedness to put a “why not” proposition – even if provisionally or as a means of testing the state of the opposing arguments – only proceeds from some confidence and that confidence is much more likely to be afforded by concision, accuracy, clarity, restraint of expression and strict relevance.  Those qualities, the more so together, will more readily and reliably (and easily) be achieved by well-phrased writing than in oral submissions even by the most clear-minded and articulate advocate.  Moreover, when read rather than heard, the submission has time to settle, be studied and take root.

If first manifested in writing, a submission does not run the risk of being mangled in the course of impulsive or impromptu discussion between bar and bench.  To the contrary, the judge already having taken in the submission, with some interest, before argument can couch more considered and refined questions about it.  That course permits the advocate better to take full advantage of what we see as the contemporary function of an address: a conversation with the judge.

When the tumult of a vigorous such conversation has subsided the judge will take the written submission away to chambers and will mull over it.  That further conduces to the submission getting the most thorough consideration on merit that the advocate could hope to draw.

We also alluded, in introduction, to the link between written and oral argument.
 
All too frequently, the persuasive opportunity of an oral address is lost by an ill-disciplined attempt at the written submissions.  The inclusion of poor, but arguable, propositions promotes the possibility that an argumentative judge will want to focus on what is wrong with those rather than what is right about the good points.  Prolixity will leave the judge labouring to discover the link between your written material and your address, making the address all the less effective.  Failure to confront the obvious problems with your argument will have the scent of blood in the judicial nostrils.

So focus, when writing, on how to promote the possibility of a useful discussion with the judge.  Have you armed the judge with the necessary exposition of the relevant law?  Does that task require much more than the leading High Court authority and a recent intermediate appellate discussion of the point?2   Have you given the judge the best summary of the facts?  Have you taken the opportunity to link your statements of fact to the evidence so as to give the judge confidence that when you make a statement of fact, it is easily to be verified?

The judge’s confidence that your written work is comprehensive (without being discursive or unnecessarily dense) leaves you and the judge free to concentrate in the address on what matters, and to have the useful discussion which good submissions facilitate.

If written submissions have been properly prepared then there is neither need nor purpose to rehearse those to a judge.  To the contrary, good advocacy is much better served by complementing the written submissions, “tagging” elements of the address to aspects of the written submission.  Not only does this assist the judge when subsequently considering a transcript of argument – because the references to corresponding aspects of the written submissions in the course of delivering the address will allow such ready reference and be judicially much appreciated – but it serves to ground the additional force or attractiveness of the address.

Judges neither appreciate nor are assisted by being harangued.  The address should develop key questions already exposed by the written submissions, including difficulties of fact and law which have to be confronted, and engage with the opponent’s submissions (including by anticipation, which is not difficult when there has been an antecedent exchange of submissions).  In this way, the advocate can garner judicial confidence that the case construct is coherent and an intellectually acceptable solution, which conduces to a “why not” state of judicial mind.  In so doing, the advocate can attempt to set favourable parameters as to what are the “important” issues or the determinative issues and how best those are to be resolved by judgment.  To state the approach in that fashion is also to expose what should be the essential nature of a modern address – a conversation, as we mentioned, not a speech.

There is an old expression that the most important things from an advocate’s point of view are the thoughts a judge has and the authorities a judge finds.  So listen.  Have the flexibility to deal with the judge’s question or thought as promptly as possible.  Keeping your place should not be too difficult if you have well-ordered written submissions and a clear plan as to what you will develop of those in the address.  You should be able to put a mark against your concise and clear notes as to what are the important matters to be developed in the address and engage with the judge about whatever it is that is occupying the judicial mind.

The conversation – or series of rolling such conversations throughout the address – which ensues is invaluable for the advocate.  The expression of judicial reluctance immediately to accept one’s submissions is not infrequently robust and direct but that is the best and only opportunity the advocate has to understand the judge’s concern and to meet the problem as best may be.  A judge’s preparedness to state frankly and then also to welcome discussion of things thought by the judge to be lacking or wrong in an advocate’s submissions is intellectual honesty and opportunity for persuasion to be grasped firmly and exploited.

None of this is to say that an address should be only a colloquium.  It is your address and your opportunity to emphasise those things that put your case in its best light.  Well-written submissions leave you with the freedom to take this approach.  Drawing the judicial mind to your case theory and developing the persuasive strength of it, you should not hesitate in address to take the judge to the record or the evidence (as the case may be) to identify and to look afresh at features you want to emphasise.  Those should have been already mentioned in your written submissions.  At the hearing, you have the opportunity to point to the passages of the leading case, or to emphasise the telling evidence, or to carefully develop your argument as to how a statutory or contractual provision is properly to be interpreted.  Integrating your address, topic by topic, with the written submissions is essential and allows the judge who has read the written submissions the better to appreciate those matters you have chosen to focus upon viva voce.

This area is attracting considerable attention, reflecting the importance of written advocacy and shifts in the approach to advocacy accordingly which we have sought to highlight.  We leave you with reference to the following as valuable contemporary contributions which will repay your study.

(a)          Keane CJ (as His Honour then was), Advocacy: The View from the Bench, published in Hearsay, Issue 60, March 2013

http://www.hearsay.org.au/index.php?option=com_content&task=view&id=1534&Itemid=48

(b)          Hayne J, Written Advocacy, available on the High Court website

http://www.hcourt.gov.au/assets/publications/speeches/current-justices/haynej/haynej_05mar07.pdf

(c)       Renwick SC, Written Submissions & Case Theory, a paper for the NSW Bar Practice Course

http://www.nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/Written%20Submissions%20and%20Case%20Theory%20-%20Renwick.pdf

(d)           Gleeson CJ, Advocacy, a paper for the NSW Bar Practice Course

http://www.nswbar.asn.au/docs/professional/prof_dev/BPC/course_files/Advocacy%20-%20Gleeson%20J.pdf

(e)    DJS Jackson QC (as His Honour then was), Evidence, Practice and Procedure: Persuasion (2008), a paper for the Bar Association CPD Program available from the Bar Association

(f)        Fraser JA, Appellate Advocacy Revisited (2012) a paper for the Bar Association CPD Program available on the Bar Association’s website in the CPD Library.

 

R G Bain QC

N H Ferrett

Footnotes

  1.   “Jesting Pilate”, Law Book Co, 1965, p253 – 254.
  2.   You’re not at university, and most judges are not impressed by your capacity to load them down with a swathe of cases to read when they all say the same thing.



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