Use of Written Submissions

Legalwise 10 Points in One Day Seminar

Use of written submissions

Justice Stephen Estcourt

Justice Robert Jackson, a former Associate Justice of the United States Supreme Court said that as Attorney General he made three arguments in every case:

First came the one that I planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.

Judge Learned Hand, who was one of the greatest American judges, although he was never appointed to the Supreme Court, in the 1920s, 1930s and 1940s, nonetheless commanded, together with his cousin Augustus Hand (Gus) and Dean Swann, one of the best appellate courts ever in the English speaking world, the 2nd Circuit Court of Appeals.

As was recently pointed out however, by Allsop P, as his Honour was, in a paper presented at Lincoln’s Inn in January 2012; just after Learned moved to practise in New York City in 1905, he lamented his lack of a thriving practice. All he was given was work for other law firms on a contract basis. That work was writing briefs (in effect written submissions), for appeals in the New York Court of Appeals and the 2nd Circuit Court of Appeals. Gus was getting all the trial work and Learned wasn’t happy.

This paper is not intended to explore the US history of the written brief, or the academic or theoretical issues of written advocacy.

For those interested in those facets of written advocacy there is an excellent paper given by Hayne J to the Western Australian Bar in Perth in October 2004 entitled Advocacy and Special Leave Applications, which is available on the High Court website under “Publications/Speeches”.

The articles and texts Hayne J mentions in his paper would also repay reading. They include The Role of Counsel and Appellate Advocacy by Sir Anthony Mason (1984) 58 ALJ 537; Justice Sackville’s article Appellate Advocacy (1997) 15 Aust Bar Rev 99; two articles by David Jackson about the High Court and appellate advocacy entitled Practice in the High Court of Australia (1997) 15 Aust Bar Rev 187; Appellate Advocacy (1992) 8 Aust Bar Rev 245; Justice Robert Jackson’s paper Advocacy before the United States Supreme Court (2003) 5 The Journal of Appellate Practice and Process 219, and David C Frederick’s book Supreme Court and Appellate Advocacy on arguing appellate cases and other appellate courts in the United States.

This paper focusses on written appellate advocacy but the skills required are fairly readily adapted to written submissions prepared for a trial judge or primary judge.

The most important technique to be practised for the purpose of preparing written submissions is the framing of the essential issue in the case. Hayne J in a paper given to the Victorian Bar Continuing Legal Education program in November 2004, expanding on the paper I have just referred to, put it this way:

In any written argument, but especially an application for special leave to appeal, a statement of the issue that is said to arise is very often of critical importance. Putting the issue in terms that reveal the issue of principle that is said to be at stake is very important. That is not done by saying that ‘the issue is whether the Court of appeal erred in making the orders it did’. Such a statement of issue tells the High Court absolutely nothing about the case.”

As noted, the United States appellate practice places much greater emphasis on the written brief than on oral argument, and the key step in the preparation of the written brief is said to be the identification of the issue that is to be decided by the Court.

Bryan A Garner is a US lawyer, lexicographer and teacher. He has written several books about English usage and style, including Garner’s Modern American Usage and Elements of Legal Style. He is the editor-in-chief of all current editions of Black’s Law Dictionary, and he has co-authored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges (2008), and Reading Law: The Interpretation of Legal Texts (2012). In A Dictionary of Modern Legal Usage, 2nd ed (1995) at 471, Garner said:

There is no more important point in persuasive and analytical writings – and certainly no point that is more commonly bungled – than framing the issue.

Garner maintains that the framed issue should be no more than 75 words and should be phrased in separate sentences. He says that the format should either be “statement, statement, question” or “premise, premise, conclusion”.

Garner offers an example of framing the issue in an appeal in the case of a man charged with murder whose doctor is unavailable to give evidence at his trial and an application for an adjournment has been refused:

John Smith will likely be convicted of capital murder and sentenced to death at next week’s trial unless he can present evidence of his mental retardation. Smith’s expert on mental retardation must undergo emergency surgery to remove a cancer that his doctor had just discovered. Did the court abuse its discretion in refusing to grant Smith an adjournment?

Twitter has no doubt assisted many of us in this art with its limit of 140 characters per tweet.

In order to frame the issue you need to find the issue, and in order to find the issue, you need to go to the decision against which the appeal is brought.

Those of you who have reported cases for the law reports will know that very frequently the fulcra of reasons for judgment can be found in as little as a couple of  sentences.

True it is that the reasons overall may contain many cited cases and numerous steps in the reasoning process, but almost invariably the decision will hinge on a very simple statement or statements.

So after considering all of these things and after checking the practice directions of the High Court or the Federal Court or the Supreme Court as to when your written submissions are due to be filed and served, you may put pen to paper.

First you will need a framework.

Some frameworks are set, to an extent, at least: for example, the formats for a High Court of Australia special leave application or summary of argument. In others cases and even in those set frameworks, you will need to consider how best to logically develop your explanation of the facts of the case, the decision below and your contentions of both law and fact.

By way of example, for a judicial review application you might choose to outline the submissions under the following sub-headings:

  • the present application;
  • the orders sought;
  • the factual background;
  • the decision appealed from;
  • the appellant’s submissions; and
  • conclusion.

Each case will be different, but you will need to remember that every word you use must be penetrable to the first-time reader. You must keep steadily in mind that you are explaining something to someone who doesn’t know anything of your argument and only has a fairly rudimentary grasp, at first at least, of the facts and the decision below.

Invariably you will best facilitate this by headings which identify the issues, the factual background, the decision below, your argument or contentions, your conclusion and the orders sought.

Whether you are for an appellant or a respondent, each of these considerations is equally applicable.

If you are for the appellant, you will need to remember that Supreme Court practice directions require that your submissions be linked by cross-reference to the grounds of appeal under which they are raised, so often, as well as sub-headings, you will need to identify the ground of appeal.

If you are for a respondent you will need to decide whether you propose to make your written submissions referrable directly to the appellant’s written submissions, or whether you propose to develop your own argument without specific reference to numbered paragraphs in your opponent’s submissions. If you do wish to do the former and reply ad seriatim you may wish to commence by saying something like:

These submissions address the written submission to the Court made on behalf of the appellant by reference to the same subheadings and paragraph numbers as used in that document.

Sometimes, I should hope not often, as a result of the pressure to comply with a practice direction deadline for filing and serving the original outline, your submissions in reply, where allowed, might need to be fuller than the original, and go over some of the same ground in more detail while at the same time expanding the arguments and responding to the respondent’s outline.

These are all variations on themes, but they serve to show that you may vary your approach to the written submissions to suit your purposes; particularly where, like Justice Jackson, you think of better or slightly different arguments after your original outline has gone off.

Before turning to the presentation of the written submissions orally before the Court, I should say a word about the set out and appearance of your written submissions.

The High Court Rules 2004 govern the form of documents to be filed in the Court including written submissions. For example they govern the number of pages that are allowed, specify that one side only of the page is to be printed on, that nothing smaller than 12 point typeface is to be used, the size of the margins and so on.

It will pay to check the practice directions in the court in which your appeal is pending before you prepare your document in order to make sure of the applicable rules as to set out and style.

In any written submissions, I recommend the use of sub‑headings, although, as I’ve said, you need to bear in mind that as well as sub‑headings you will need to comply with any practice direction that requires you to link your submission by cross-reference to the grounds of appeal.

I prefer to use a typeface of at least 12 point size, as anything smaller is confusing to the reader and difficult for the advocate to follow, particularly when interrupted by questions from the bench (although of course you can always increase your own copy in font size).

I think it is also possible to use typefaces that are more appealing than others. I prefer Times New Roman 12 point and I don’t like non-serif fonts.

In a summary of argument I was preparing some years ago in conjunction with a very experienced senior counsel, he said to me that he had changed the typeface that our instructing solicitors had used to convert our summary of argument into their template because he said “it didn’t look interesting”.

I also recommend the following:

  • short paragraphs;
  • individually numbered paragraphs;
  • the use of footnotes, but not endnotes, instead of setting out citations in the body of the text;
  • break lines in your own copy of the submissions to tell you that they are moving on to another point;
  • the elimination of epithets and intensifiers – a good argument speaks for itself;
  • minimising the use of underlining and bold italics;
  • the use of coloured paper to distinguish your own copy of the submissions from those of your opponent and to enable them to be found easily amongst a host of other white documents.

As to the substance of your written document, Allsop CJ pointed out in the paper to which I have already referred, that you need to remember when preparing your written submissions that generally they have three functions and they must be drafted to fulfil all three of those functions.

The first, his Honour says, is that the written submissions will be read before the appeal by a busy reader, who may have two, three or four appeals that week. So, there must be a short, coherent and readable encapsulation of the essence of your argument.

The second, he says is that the written submissions will be used during the argument to follow and understand the appeal. So the structure and text should reflect how you intend to speak. “Where are you in your written submissions, Ms X?” can be a precursor to expressed irritation if what you are saying cannot be easily identified in badly organised writing; or, it can be the beginning of a warm and meaningful relationship if it can be seen that what is being said reflects a clear written position.

The third function his Honour says is that the written submissions will be used after the hearing to write the judgment. So, not only must there be a crisp intelligible introduction, and an elegant structure reflecting the oral address, but there must be a reasonably comprehensive placement of significant information.

It is this third function he notes, which often dominates (and ruins), written submissions. Long, dense, badly organised, even if comprehensive, submissions make judges irritable and unenthusiastic in their attention.

In my own advocacy teaching I have dubbed Allsop CJ’s threefold function requirement of written submissions as the hook, line and sinker.

If written submissions are hard to grasp, then the first function is not fulfilled as they do not provide the necessary hook to catch the judge’s initial interest and facilitate his or her understanding.

If they are useless to use during argument then their second function is not fulfilled because they will not have served as a line to play the in court process of information gathering and intellectual synthesis.

And if your written submissions are not well organised and comprehensive and annotated and marked, so as to be the bench’s primary reference point, then they will not be the sinker on the judges’ desks weighting the outcome in your favour by being the principal reference point when the judgments are being written.

As Allsop CJ said in his paper;

Written submissions are not mere preparations for the appeal, they are not a mere procedural precondition for the appeal. They are now the first half of the appeal. You do not get enough time to argue appeals entirely orally. If you do written submissions badly, half your appeal has been done badly.

So, having filed and served your written submissions the question which arises on the hearing of the appeal is the extent to which, and the manner in which you will address those submissions in oral argument.

Allsop CJ says:

Remember – your court will be busy. They will have read your written submissions – perhaps more than once, perhaps once. They are quite likely not to have fully absorbed them. You have a group of intelligent, busy people who may have a jumbled or confused understanding of what you want to say. You have to ensure that the structure and detail of their understanding accords with your argument. What must they grasp? What structure of argument? What central body of facts? Take them in the materials to what you wish them to understand. Do not just read the written submissions. Time is precious. Think about what case, what facts, what parts of the trial judgment you wish them to read – then and there.”

Hayne J points out in his paper referred to earlier that opinion differs about how much of your oral argument you should write down. He said:

Some of the best advocates in the country have had very full notes of their argument. This has enabled them to cut and paste on their feet according to the direction that debate takes. Others seem to treat it as a badge of honour that they have very little written material before them except the application book or the appeal book. In the end, it is of course, a matter for individual choice but, if in doubt, write it down. The discipline of writing often conduces to brevity and accuracy. Whether as American literature suggests, you prepare a ‘podium book’ in which you have your speaking notes, chronology and one or two critical documents, is a matter for you. Some find it helpful. The guiding principle is that you must be able to present your argument in a way in which you are engaging the Court. Counsel who puts his or her head down in order to read a prepared speech, or a slab of judgment, foregoes any opportunity to engage the Court.

Everyone is different. Some years ago I was involved in a case in Brisbane with Bret Walker SC, Stephen Gaegler SC and Geoff Lindsay SC. By way of aside, my junior and I had been granted leave to appear amicus curiae on behalf of the UNHCR. At that time such a grant of leave had only occurred once before in the history of the High Court and was granted only by a split decision of the Court.

Bret Walker had handwritten notes at the lectern, quite messy and accompanied by scribbling on various pages of the appeal book, and the summaries of argument of other parties all strewn around.

Stephen Gageler SC, as his Honour then was, had rather full typed notes of his argument; and Geoff Lindsay SC, now Lindsay J of the NSW Supreme Court, had a series of old office style business index cards with individual propositions written on them.

The thing that each had in common was that their oral argument plucked the very essence from their written summary of argument but did not refer to it expressly or even speak directly to it, much less as one sometimes sees, read it out word for word.

The object is to present the court with the very essence of your written submissions.

This is easier to do with courts that have had the time to read everything in the appeal book as well as the written submissions.

In Tasmania, Practice Direction No 6 of 2005 states at para2.1.2 that you may assume that the judgment below or the summing-up and the notice of appeal have already been read by the Full Court. Often with a busy court with no separate court of appeal that is all you may assume.

On the other hand, in Victoria and New South Wales with a dedicated Court of Appeal and before the Full Federal Court or the High Court of Australia you can take it that you will need to address only the essential features of your case and not your written submissions.

The difficulty is to know how to cope in every circumstance.

My practice, even before the relatively recent requirement in the High Court for counsel to hand up a written outline of oral submissions in addition to the written submissions filed earlier, was always to prepare one or two pages of typed, oxymoronically entitled “written oral submissions”. I would work from those and not from the written submissions.

However, if a court calls upon you, either expressly or impliedly to address your written submissions in more detail, then you will need to do so. Sometimes, not too often I would hope, a giveaway might be if a member of the bench says to you as you commence presenting your oral submission, “Now just remind me of the facts again Ms X”.

I always started with my one to two page distillation which was always in short paragraphs each of which hopefully picked up the essence of each major point contained in the written submissions.

I would start with that distillation in a conversation with the bench and would see where that took me. Often you will find that two sentences in to your oral submissions you are asked questions that take you away from the order in which you had set out the issues in your document.

In a case where you are questioned early in that manner, as will often happen, if you have your “written oral submissions” set out in self-contained short paragraphs, you can go immediately to the paragraph that contains the answer to the question you have been asked (you hope anyway), and can then come back quite easily a little later to where you were and start again.

This is what Hayne J refers to when he talks about counsel “cutting and pasting” on their feet according to the direction that the debate takes. You simply cut the paragraph that contains the answer and paste it at the position you are in, picking up again where you left off after you have addressed the question.

Despite what anyone says, it is my view that you must answer questions as they are asked of you. As Hayne J said in his paper to the Victorian Bar:

Because the Court wants to gain as much as it can from oral argument, it is inevitable that argument never quite follows the order which counsel intends to follow. Answering a question from the Bench with ‘I will come to that later’ is not often sensible. Much more often than not it is better to deal with the question then and there, at least in summary form. But it means you will have to alter the way in which you intended to present your argument.

Cutting and pasting from your written oral submissions allows you to do that without becoming lost and without losing sight of any essential features of the argument you wish to present orally.

On the subject of questions from the bench, I offer a number of comments.

You must stop, engage the judge who is asking you the question and listen to the question carefully.

You must not be over-anxious to answer the question, just because you think you know the answer. You need to think about it. It may not be as simple as you think.

You must not, either in your anxiety to answer the question or for any other reason, talk over the top of the judge who is asking you the question. If you do, apologise.

Do not be obsequious. Limit the number of “your Honours” and “if it please”. Overuse of these phrases is irritating and it is not necessary in order to be respectful to pepper everything you say with these ritualised incantations.

You can be conversational in the presentation of your oral argument, so long as you are not disrespectful in tone or inflection.

Allsop CJ had this to say on this subject:

“‘Why are you taking us to this Ms X, the references are all in your very helpful submissions?’ his Lordship asks, not without a touch of impatience. ‘Yes your Lordship; they are, but I wish to take you to selected parts of the evidence of the meeting to demonstrate that there can be no doubt that the learned judge’s findings on this central issue were wrong. I will take you to the first three references in [61] and leave the court to read the other seven there referred to which are in like terms.’

Judges love that:

  • you have command of the paper;
  • you have command of the facts and your brief; and
  • you have command of the court.

Well-structured written submissions enable you to achieve what all advocacy is about:

  • control of the occasion and
  • persuasion.”

I suggest however, that you wait until you have as much experience as Brett Walker SC in the High Court before you try this:

Gummow ACJ: I think your answer to Justice Kirby skirts around the question of …

Mr Walker SC: I have not finished it.

Gummow ACJ: All right.

Finally, do not interrupt your opponent during his or her argument; wait to answer it in reply, or by leave as the case may be.

Equally, do not sledge your opponent either audibly or sotto voce.

Australia may have been way behind the USA in getting started, but there can be no doubt that written advocacy is the new advocacy.

It is hard work and requires a disciplined approach. Each word you use, particularly in written “oral submissions”, must be carefully chosen so as to endeavour to make crystal clear to a first time reader or listener what are frequently complex propositions.

Written submissions will also require you to rethink how you prioritise your work and how you timetable the things that you have to do well ahead of time. The preparation of written submissions and the inevitable editing and re-editing is time consuming.

Whilst time consuming however, the discipline of preparing written submissions brings about greater precision in the identification and presentation of argument.

Moreover, written submissions are fair as they avoid ambush and allow the issues to be ventilated before a court by counsel who understand fully and in advance what their opponent’s contentions are.

Never, ever, hand to your opponent and/or the court a set of further written submissions on the day of the hearing. What good are they if they are seen for the first time as you are about to commence? If you do this then, out of fairness to your opponent and out of respect for the court, you will have to read them out in full and at the very least that is bad advocacy.

Written submissions can be very satisfying, because of the need to lay out for a first time reader difficult propositions in a simple and penetrable fashion.

There is no doubt that written submissions will become the norm for most if not all jurisdictions and not just on appeals. They are now universally embraced of course in the AAT in the form of statements of facts and contentions, and in the Federal Court at first instance, and written submissions are now required in all appeals in our Supreme Court and in those of most other States and Territories.

My advice is to embrace this new advocacy, because it is here to stay.

28 February 2014