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Advocacy in the appellate context
ADVOCACY IN THE APPELLATE CONTEXT: FULFILLING THE FUNCTIONS OF WRITTEN SUBMISSIONS
KRIS HANDSHIN, BARRISTER, BAR CHAMBERS
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In his article, “The future of appellate advocacy”, 1 Justice Michael Kirby wrote:
Talent in advocacy has conventionally been viewed as a natural gift rather than a skill to be learned. Good advocates were thought to be born. I do not deny that there may be a gene or two in the 36,000 genes on the human genome that are labelled ‘top advocate’...However, in recent decades it has increasingly been recognised that advocacy skills can be improved and sharpened.
The concluding observation in this extract is of particular application to written advocacy which, as Justice Kirby acknowledges in his article, has assumed a prominent role in litigation. Written submissions and outlines of argument are now routinely requested by trial courts and are required by appellate courts. If you wish to practise law as a barrister or solicitor advocate, you cannot avoid preparing written submissions. Nor should you try. Preparing written submissions offers an opportunity to sharpen and improve our skills of advocacy. Developing and refining the ability to write persuasively is, to my mind at least, an indispensable part of improving our advocacy skill set more generally. By practising and honing our skills of drafting effective written submissions, we educate ourselves about the importance of precision; linguistic elegance; structure and thoroughness in advocacy. Written work teaches us to be thoughtful, methodical and persuasive: key attributes of any form of advocacy.
While as practitioners we may benefit from such an exercise, what is the objective of written advocacy? Like all advocacy, persuasion is the goal. Written submissions should assist, in fact pave the way, for a favourable outcome. Both Justice Kenneth Hayne and Chief Justice James Allsop have said that written submissions should fulfil three functions: • They should be a “...coherent and readable encapsulation of the essence of your argument” to assist the judge/s preparing for the hearing; • They should be useful during oral argument and so reflect the structure and content of what you propose to say, together with appropriate references to the evidence, the judgment of the court below, and important authorities; • They should be useful to the decision maker when preparing judgment. 2
If we focus for the moment on the appellate context, how might we go about drafting written submissions that fulfil these three functions? In this brief note - which does not permit of a lengthy disquisition on what is a deep and elusive topic - I will attempt to offer a brief refresher on what, over time, have been identified by judges and eminent practitioners as some of the defining traits of effective written advocacy, focusing on written submissions in the appellate setting. As advocacy is an innately individual undertaking, it is not possible to promulgate “rules” for effective written submissions - only suggestions 3 that may or may not assist and which may require adaptation to suit our individual style and the idiosyncratic features of a particular case.
With that qualification in mind, some suggestions for drafting written submissions which I have collated from a review of helpful source materials on the topic 4 - and as a result of trial and error in my own experience - include: Know the applicable rules; Focus on structure and issue framing; Language and style - be polite, respectful and methodical; Write early and synthesise grounds of appeal and written submissions; Understand the cases presented at trial;
KNOW THE APPLICABLE RULES AND PRACTICE DIRECTIONS
It goes without saying that if you are preparing written submissions for the Full Court or Court of Criminal Appeal, it is essential to revisit the applicable rules to understand what is expected and when. 5 Persuasive written advocacy begins with filing submissions in the proper form and on time. If you are the appellant, avoid at all costs allowing the respondent the apparently irresistible opportunity of submitting their submissions with the proviso that “These submissions have been prepared without the benefit of the appellant’s submissions”.
If compliance with the Rules is not possible, inform the other side when you will have your submissions to them and be sure to advise the court and seek an extension of time.
STRUCTURE AND ISSUE FRAMING
Advocacy is fundamentally an exercise in problem solving using persuasion. Whether conducting a trial or arguing an appeal, the objective is the same: to solve the legal problem using our skills as advocates. 6 It is trite, but solving a problem requires us to first identify the nature of the problem. If we cannot correctly and succinctly identify the problem, then we cannot begin to develop an answer that will persuade the decision maker in our favour.
FRAME THE ISSUES AT THE OUTSET
On occasion, particularly when under time pressure, it is tempting to commence written submissions by following the path of least resistance: an uninspiring and abstract statement of the case under review; a re-statement of the grounds of appeal; followed by a lengthy dissertation of the facts and evidence. Five pages later, a reader of the submissions might be better educated about some of the facts and procedural history but, not knowing why the chronology or facts of the case are relevant to the grounds of appeal, our reader is unlikely to have been assisted in placing them into any meaningful legal context.
Effective written submissions, like effective oral advocacy, start with a punchy introduction that connects the borders of the arguments and issues to be addressed so that throughout the body of the submissions, the reader has an understanding of where the process of analysis will lead. Framing the questions for determination; identifying, even in a cursory way, the answers that will result in the remedy or orders sought and exposing in economical terms the process of reasoning and analysis that supports the correctness of the answers, persuasively, intelligibly and concisely is a good starting point for effective written submissions. 7
That is, concededly, easier said than done. Drafting effective written submissions is a demanding and timeconsuming task. But we can make the task easier both for ourselves and more useful to the court, by taking the time to accurately and meaningfully frame the issue/s for determination and forecast the resolution of the issue/s at the outset of submissions.
For a statement of the issues to be meaningful it should bring together the key statements of fact or premises (ideally those which are non-contentious) and the question of law raised by a ground of appeal in a succinct, yet informative way. The identification of an issue at a level of abstraction (such as, “the appeal should be allowed because the trial judge erred in finding x or y” 8 ) will not fulfil this objective. One of the most prolific writers in this area of practical tuition, Bryan Garner, suggests that a statement of an issue should be no more than 75 words (a surprisingly difficult task) and should set out the preferably non-contentious statements of fact (or premises) which generate the question of law to be determined. 9
By defining the issues early on, we lay the groundwork for fleshing out the substantive argument in the body of the written submissions by reference to: • The evidence and / or findings of fact relevant to the issue; • Any arguments relevant to the issue advanced at trial; • The primary court’s treatment of the issue; • The authorities relevant to the correctness or otherwise of the primary court’s approach; and • By stepping through these topics, we construct a suitable platform to detail our analysis of the issue and, hopefully, justify the correctness of the answer we posited in our introductory remarks.
To return to Garner’s approach, by identifying issues in an incisive and meaningful way at the outset, we can control the remainder of the argument by providing the reader with the necessary compass for navigating the written submissions. This approach also provides the advocate with a map for explaining the steps in the argument in a structured and logical way, which will prove to be a useful reference for supplementary oral submissions. As a final observation on structure, we should not underestimate the utility of descriptive headings to break up slabs of text and broadcast a transition to the next step in the argument without having to waste precious space explaining as much. 10
Persuasive written submissions observe the time-honoured traditions of oral advocacy: be polite, respectful and methodical. Describing an opponent’s submissions - or the presentation of their case - in terms that are pejorative or denigrating (such as the commonly seen “completely misconceived” or “grossly deficient” mantras) is both unnecessary and usually unjustified. It is always unpersuasive. The use of vituperative language and “intensifying epithets” 11 which typically appeal to emotion and involve personalised attacks instead of method, can also have the side effect of turning your reader against an argument and diminishing an otherwise good point. 12 Think of Justice Peter Applegarth’s observation:
A coolly written demolition of the other side’s evidence and case is likely to be more effective than an emotional and personalised attack on the other party and its lawyers. 13
There is nothing more devastating than a clinically written submission that appeals to logic and reason.
The need for moderation and clinical writing is amplified when discussing shortcomings in a trial judge’s approach. The use of unnecessary adverbs and
hyperbole when deconstructing a judgment is both impolite and unpleasant to read. 14 An appellate court is unlikely to be persuaded by “overheated prose”. 15 Be appropriately forceful without being discourteous.
That is not to say that we should avoid a critical analysis of competing arguments or the judgment of the court below. That is our task as advocates. But we should be mindful of the way we go about performing that task. An appellate court is more likely to respond favourably to a methodical, well-reasoned and well supported argument than one that resorts to unhelpful and disparaging descriptors. Instead of labelling an opponent’s work as “completely misconceived” for example, perhaps consider whether the point can be made using a more measured submission such as “The appellant’s primary complaint should be rejected as it cannot be reconciled with the High Court’s decision in...”
Another characteristic of methodical writing is avoiding basic errors. I am not referring to proof reading - that goes without saying. I am referring to misstating or distorting the evidence to suit an argument. Apart from being unethical and unprofessional, it does a disservice to professional reputation and the persuasiveness of submissions. A genuine mistake in drafting is one thing - we all make them and it is important to own up to them when we do, as embarrassing as that may be - but ignoring evidence because it is unhelpful devalues the assistance we are striving to extend to the court. It also gives an opponent an opportunity to highlight the error and cast doubt on the cogency and reliability of our argument more generally. 16 Being accurate - and, again, methodical - is essential to preserving the integrity of an argument. That is not to “confuse fairness with neutrality”. 17 Advocating is appropriate; indeed, essential. But it must be done in a way that preserves the integrity of the argument.
In an appropriate case, that may also mean confronting factual and legal shortcomings. Effective written advocacy is not one-eyed. Where appropriate, address the weakness of an argument in a manner that does not draw excessive attention to it 18 and provides an opportunity to explain it away as unimportant. In a sense, this is about being comprehensive. And written submissions should be comprehensive. As Justice Hayne has explained:
If [the written submission] is not comprehensive, when do you propose to fill in the gaps? 19
One technique to assist in writing persuasively (if time permits) is to write submissions at the time of formulating the grounds of appeal. There are two benefits to doing so: first, it provides the best opportunity to harmonise the grounds of appeal with the argument to be advanced (instead of contorting an argument to fit a ground of appeal that is not quite right). The second benefit was referred to by Heydon J, in a different context, in AK v Western Australia (2008) 232 CLR 438 at [108]:
...the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops.
There is a useful message for appellate advocates in this commentary. Writing submissions earlier rather than later and, preferably, contemporaneously with the composition of the grounds of appeal, allows us to gauge the merits of a complaint. If an argument “won’t write”, it may be because it has no merit. Early writing affords an opportunity to identify and focus on the arguments most likely to succeed. To my mind, this is about synthesising grounds of appeal and written submissions. This reduces the prospect of mystifying the court when “the written argument bears no relationship to the grounds of appeal”. 20
UNDERSTAND THE CASE RUN AT TRIAL
Trials involve a forensic exercise. Parties make informed choices about how they will conduct litigation; the points to be taken; witnesses to be called and cross examined; the defences to be relied upon. The forensic issues as perceived and pursued by the parties shape the evidentiary landscape and inform the arguments that are put by way of final addresses.
The circumstances in which new points may be taken on appeal are finite. 21 Appellate court judges frequently ask how trial counsel dealt with an issue or argument at first instance. Persuasive written submissions must, therefore, be sympathetic to and demonstrate an understanding of the conduct of the proceedings in the court below. Collecting references in written submissions to how an issue was dealt with at first instance is therefore a worthwhile exercise. If the need arises to take a new point, confront the issue and explain why it is appropriate and necessary to do so.
CONCLUSION
In a helpful paper 22 on this topic, Justice Peter Applegarth provided a survey of expectations regarding written submissions from the judicial perspective:
“What judges want and expect • They may hope for brilliance • But they want (and expect) assistance • They are time poor • They want written (and oral) submissions which will help them do their job
They want to know:
• The essential facts • The issue or issues • The relevant rule or principle • The result you contend for • Why that result is justified by applying the rule to the facts • Why you say the other side’s arguments are not persuasive
Good written submissions are the raw material for an oral or written judgment.
• They should frame the issue • Contain the relevant facts, including those that do not help your case • State the rule or principle that allows or compels the result you seek • Persuade why that result flows by application of the rule to the facts.”
If we use this checklist as a reminder of what might appeal to our intended audience and we strive for written advocacy that fulfils the “three functions” as initially set out by Justice Hayne and Chief Justice Allsop, we will hopefully be well on our way to presenting written submissions in a persuasive and compelling fashion, whilst discharging our duties to the court and assisting in the efficient and proper disposition of appeals. B
Endnotes 1 (2006) 27(2) Aust Bar Review 141. 2 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 5 (<https://www.hcourt.gov.au/assets/ publications/speeches/currentjustices/haynej/ haynej_05mar07.pdf>); Chief Justice James Allsop, ‘Written Submissions - What judges love (and hate)’, (2013) 2 Journal of Civil Litigation and Practice 9 (< http://thomsonreuters.com. au/journals/2013/06/11/written-submissionswhat-judges-love-and-hate/>). 3 Justice Michael Kirby, ‘The future of appellate advocacy’, (2006) 27(2) Aust Bar Review 141, 142. 4 See, eg, Justice Tom Gray, M Hinton, D Caruso (eds), Essays in Advocacy, 2012, Barr Smith Press. I have drawn heavily on the following , particularly useful articles: Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>); Chief Justice James Allsop, ‘Written Submissions - What judges love (and hate)’, (2013) 2 Journal of Civil Litigation and Practice 9 (<http://thomsonreuters.com.au/ journals/2013/06/11/written-submissions-whatjudges-love-and-hate/>); Justice Peter Applegarth, Modern Advocacy: Issue Framing in Oral and Written; Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017 (<http://www.austlii.edu.au/ au/journals/QldJSchol/2017/32.html>; Justice Stephen Estcourt, ‘Use of Written Submissions’, (2014) Supreme Court of Tasmania Publications (< https://www.supremecourt.tas.gov.au/ publications/speeches-articles/legalwise-10-pointsone-day-seminar-use-written-submissions/?); Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate
Advocacy’, (2002) 22(2) Australian Bar Review 149. 5 See Supreme Court Criminal Supplementary Rules 2014, rr 69-74; Supreme Court Civil Rules 2006, r 297; Supreme Court Civil Supplementary Rules 2006,
Ch 13, Part 5. 6 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 4-5 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 7 Garner, ‘How to frame issues clearly and succinctly for effective motions and briefs’, (2017) American Bar Association Journal (<http:// www.abajournal.com/magazine/article/ effective_pleadings_issue_framing>); Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 8-9 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/ haynej/haynej_05mar07.pdf>); Justice Peter Applegarth (Supreme Court of Queensland), Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture
Series, 30 August 2017, pg 4-5. 8 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 8, 16 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>); 9 Garner, ‘How to frame issues clearly and succinctly for effective motions and briefs’, (2017) American Bar Association Journal (<http:// www.abajournal.com/magazine/article/ effective_pleadings_issue_framing>). 10 See, eg, Justice Stephen Estcourt, ‘Use of Written Submissions’, (2014) Supreme Court of Tasmania Publications (< https://www. supremecourt.tas.gov.au/publications/speechesarticles/legalwise-10-points-one-day-seminaruse-written-submissions/?). 11 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 15 (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 12 A useful example appears in Justice Peter
Applegarth, Modern Advocacy: Issue Framing in Oral and Written Submissions, QLS Modern Advocacy
Lecture Series, 30 August 2017, pg 13. 13 Justice Peter Applegarth, Modern Advocacy: Issue
Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 13. 14 Consider the contrasting examples set out in
Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 153. 15 Justice Peter Applegarth, Modern Advocacy: Issue
Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 13. 16 Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 160. 17 Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’, (2002) 22(2) Australian Bar Review 149, 160. 18 Ehrenberg, ‘Teaching the Neglected Art of
Persuasive Writing’, (2017) 26(1) Legal Education
Review 215, 223. 19 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 5. (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 20 Justice Kenneth Hayne, Written Advocacy, a lecture delivered to the Victorian Bar, March 2007, pg 6. (<https://www.hcourt.gov.au/assets/ publications/speeches/current-justices/haynej/ haynej_05mar07.pdf>). 21 University of Wollongong v Metwally (No 2) (1985) 59
ALJR 481, 483; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51]; Nudd v The Queen (2006) 60
ALJR 614, [9] (Gleeson CJ). 22 Justice Peter Applegarth, Modern Advocacy: Issue
Framing in Oral and Written Submissions, QLS Modern Advocacy Lecture Series, 30 August 2017, pg 18.
