Continuing Legal Education Society
of British Columbia
Vancouver, November 8, 2002
Eugene Meehan, Q.C.
Chair, Supreme Court of Canada Practice Group
Justice Peter Lowry
Supreme Court of British Columbia
Samuels & Company
Table of Contents
This isn't even a paper (and deliberately so). It's simply a list of practical points our Supreme Court Group in Ottawa uses to strategically revise what someone else has written as a first draft, or to draft from scratch. There's nothing worse than reading someone else's writing about writing. Hopefully the points below reflect a practical, no-nonsense summary of some of the more effective tactics of written advocacy.
That being said, many lawyers believe they fulfill their role by simply delivering information to their clients or to the court in a written form. All one has to do is write it down. Right? (Write?) They write as if their sole function is to act as a conduit for the raw data their research has unearthed. But lawyers must be more than walking photocopiers and note-takers. They should be accomplished writers – meaning strategic writers, tactical writers. It's important to be strategic and be a tactician on your feet in the courtroom – it's just as important to be strategic and be a tactician on the page. It takes hard work, but the finished product is worth the effort – we all know a long dictated letter is a lot easier to do than a short one (and we can all recognize a far-too-long dictated letter too).
1. Ad agencies (or at least some of them) position a product in a marketplace, or position a manufacturer in a marketplace. They sometimes succeed (sales up), fail (sales down), or come out even (sales flat – which may be a win – market share maintained).
2. An advertising "correspondent" (Mike Tennant) on CBC Radio's "Definitely Not The Opera" says the following about his profession. Does any of this apply to us as lawyers in how we write? How we write an opinion letter, a motion record, a factum?
Implications for Legal Writing – Keep it Simple
3. Keep your message simple. Ideas still need to be big, but to be effective they must be clear and focused. Try to be simple enough that a stranger, preferably even a nonlawyer, can read and understand it.
4. The best argument is that which seems merely an explanation. Essentially, you know you have created a strong marketing argument when your prospects respond by saying, "That makes sense".
"Just do it"
"You deserve a break today, at McDonald's"
5. Just as in advertising, when writing legal prose it is important to know your readers – or audience. Thus when preparing legal documents, the first challenge is to learn as much as possible about your targeted audience. You can then use the most fitting rhetorical tools to present your material.
Communicating to a new audience
6. Changes in information communication processes present new challenges to legal writing. Persuasive legal writing must consider and tackle the challenges presented by the impact of television, computers and e-mail.
7. Take for instance, the effects of television on communication:
Passivity – Information is delivered in a painless, non-challenging, pureed form with built-in techniques that motivate audiences to stay tuned.
Inattention – One listens with barely half an ear.
Lack of Continuity – Commercials and daily-life interruptions teach us to expect information in small bites (bytes?).
Tight, succinct stories – One and one-half minutes per news story.
Visual support – Words are no longer the message givers; pictures tell the story.
Remote-control dismissal – We know how much power we have to dismiss anyone or anything that does not please us right away.
What's "Prime" – Teaches what is worth listening to and staying tuned into and what is considered boring, unimportant, or without mass appeal.
Rise to the Challenge
8. Use language that is clear, explicit, succinct, all-inclusive, and most of all, visual, so your audience can picture what you are talking about. Make your audience see, experience, and become a part of what you are talking about.
9. Give colour, ambience, and action – for example:
Not "the car was moving in a northwesterly direction,"
But "the red car left the curb and started up Main Street toward the McDonald's on the corner"
Not "and in the files one finds"
But "when he opened the drawer marked 'last year's accounts,' he found – nothing".
Know your audience
10. For example, if you're applying for leave in the S.C.C. (but the same goes for other courts and tribunals too) time permitting, scan applications over the last several years; what got accepted and what got rejected in the area of your appeal. It's possible to get a clear read on the kind of cases the Court is interested in. If there is a pattern, make sure you draft your application such that it relates to one of these "hot" issues. A related consideration is whether leave has already been granted to a similar case whose coattails you can ride in on. If you're going fishing for trout, don't bait your hook with pike food. If you know who the judge(s)/members of tribunal are going to be, do a QL search of their name; that may give you an idea of how the wind's blowing.
Think like a judge
11. Ted Williams always got into a pitcher's mind days before a game. Similarly, when writing a factum try and think like a judge. Change places with your judge, and keep three things in mind:
Write it for the judge that's going to read it
12. At a basic level (and this can be played out directly or indirectly in a careful way) the story has to make sense to the judges in terms of their personal perceptions and attitudes about life. It has to be consistent with what they think is right and what they think is wrong.
13. Understand that strategically you have to make the judge part of your thinking processes – part of your team. The "deal" you propose to him/her must work for both parties, you and the judge.
When your client is a child
14. When was the last time your audience viewed the world through the eyes of a five-year-old? Success at trial occurs when your audience think, feel, and react from a child's perspective. Form your arguments by using language and questions in such a way that guides your audience to think like children.
15. For instance, consider posing questions like, "do you know a child who must sit in a wheelchair on the front porch and watch the neighborhood children play their games?"
7 Habits of Effective Advocates: One Judge's Perspective
16. Justice John Laskin of the Ontario Court of Appeal says that because of time limits on oral arguments and the increased importance of the factum, counsel must "uncomplicate" their arguments and go to the core of the case. To advocate their cases effectively, Justice Laskin suggests counsel follow these 7 guidelines:
Legal writin' versus ordinary writin': one purpose – think tactically, write strategically
17. Legal writing differs from other sorts of writing in that it is singularly directed toward persuading the reader (a judge, tribunal member, arbitrator or other decision-maker) to accept a certain position. Everything that counsel submits should put into the reader's mind the information and motivation necessary for a favourable decision. Appeal books, factums and everything else are devoted to that goal and nothing less. You're not writing to entertain, show how smart you are, how many authorities you can cite for one proposition, or even writing to inform. You're writing to persuade.
18. Consider your client's overall vision (whether that be a corporate/institutional vision or perhaps a more personal family law one) and your client's objectives in the litigation. Ensure no disconnect between vision and objectives.
Look at how things look
19. Lawyers spend much of their time thinking about what to say and how they should say it. Relatively little time is spent considering how best to organize the material on the page. A good-looking document will help the reader get the point quicker and retain it longer. A well-organized easily-accessible reader-friendly document is simply more persuasive. Cornflakes in grey boxes don't sell well.
20. Legibility (easy reading) is fundamental to readability (easy understanding). Good legibility is determined by font choice and the relationships between type size, line length and spacing (between letters, words, lines and paragraphs). An effective document is one that conveys your message well and quickly. A number of simple, but important, rules of thumb include:
Run-on sentences. Big words.
21. Most lawyers write sentences that are too long. Usually small words work better than big ones.
Writing too much
22. Words are key to persuading. Too many words and the reader tunes out. Too few and they think you're hiding.
Legalese: drop it
23. Don't clutter your writing with long literary language that only lawyers can be bothered to decipher. Legalese may now be second nature to you, but it sounds exclusive rather than inclusive.
Avoid long paragraphs: one-breath rule
24. A good rule of thumb is that a paragraph should not be so long that it cannot be read aloud in one breath (generally 2-3 sentences). If you have more to say, then break the ideas into separate paragraphs.
25. In order to create and maintain a flowing argument, you must consciously incorporate connectives in your writing.
26. Forget topic sentences – bridge your sentences by creating "echo" links. This connective technique allows you to cause a figurative echo in your reader's mind by repeating an earlier used word. A subtler technique may be to use a derivative of an earlier word.
Structure sentences strategically
27. Use the beginning of a sentence to express ideas that are already stated, referred to, implied, safely assumed, familiar, predictable, [or] less important.
28. Use the end of the sentence to express the least predictable, the newest, the most important, the most significant information, the information you most certainly want to emphasize.
Good writing: reader feels smart. Bad writing: reader feels dumb
29. Augustine Bunell used to say, "Reading is not a duty, and has consequently no business to be made disagreeable." Someone (including a judge) won't read sluggish disagreeable prose. Deliver the goods simply, quickly, efficiently. Write in ordinary simple-to-understand language. If you're writing it and it makes you feel smart, it probably makes the reader feel dumb. Good writing makes the reader feel smart. Bad writing makes the reader feel dumb.
30. Bottom Line: good legal writing looks as if someone other than a lawyer has written it.
Beware the acronym
31. Although trendy, acronyms can become the nemesis of clear writing. Overuse, or unclear/confusing use, defeats the purpose of pithy and unobtrusive shorthand. The best approach is to use them sparingly and rely on shortened versions of terms that will be immediately obvious to the reader (e.g., the Committee on Plain English becomes "the Committee" and not "the C.O.P.E." ).
Avoid formulaic qualifiers and phrases
32. They're a waste of space and add nothing to the quality. Classic examples include:
Get rid too of verbose/fancy dancy intros/fillers:
Not using the word "Not"
33. Avoid using the word "not" whenever you can. For some reason, lawyers invoke phrases like: "the witness did not remember" or "the car did not hit the tree". It's simpler and more elegant to say: "the witness forgot", "the car missed".
Nothing is absolute
34. Absolute expressions (all, always, every, invariably, never, none, totally, undoubtedly) are rarely accurate and should be used lightly.
35. Absolutes tend to trigger a reader's perversity; once told that, "the campaign was a total failure," many readers begin to hunt for signs of partial success.
Write with colour
36. Action verbs and deliberately colourful phrases make a difference. For example, a look might be a glance or a glare or a sidelong stare. Likewise people don't just say things, they shout , mumble , or stammer.
What are you going to call them?
37. Avoid lazy/easy short forms like appellant/respondent. The reader will never get into the story if the main players are faceless.
38. Don't make it a struggle for the reader to figure out who is who. Maybe use the word that describes who they are/what they do – doesn't have to be complicated:
39. What you call them (or don't call them) is a strategic decision.
Always put yourself first
40. Whether you're the appellant or the respondent, it's always better to present your own position first with contrary positions cast as responses to your own. Generally, drafting in this way tends to make the opposing position seem more suspect since readers tend to be critical of the adequacy of any response.
If it doesn't help, don't say it
41. Don't quote or summarize your opponent's argument. Familiarity doesn't breed contempt, it may breed acceptance, so the less the judge hears about the other side's case, the better.
42. Likewise if you're the appellant, don't repeat a lower court's adverse findings of fact. These facts only emphasize potential problems with your case.
43. Pictures, charts and diagrams can really help to communicate. Particularly for legislation or complex corporate relationships, consider a foldout chart.
Tell a story
44. Every file (that is absolutely every file) has a story. The basic elements of every story are:
Making your story work
45. Writing a story isn't easy (if it was we'd all be John Grisham and wouldn't have our day jobs). Figure out what your story is, map out the main components, write it down and then build the necessary legal elements around that framework. Include a couple of simple elements:
Tell your story in the present tense
46. The present tense is really important. Telling the story in the past tense turns the reader into an observer. In contrast, the present tense makes them a participant, wondering what's going to happen next.
Write for the reader, not yourself
47. Write for your reader, not for yourself; the only goal is clarity. Write as if your reader doesn't know anything about your case – because they don't.
Point-first writing: don't write it like a mystery novel
48. Make sure you clearly and explicitly state your point or proposition before you start; try and develop or discuss it. Avoid writing the factum (or even a paragraph) like a mystery novel, focusing on the details upfront and revealing only the point or the conclusion at the end. The reader shouldn't have to figure it out. You're trying to persuade the reader to accept your argument, not show how clever you can be at telling a convoluted story. It's better to provide context before detail, tell the reader off-the-bat what issue or idea or topic you're going to discuss in the paragraph, articulate it in the first sentence (usually our conclusion or submission on that issue) and the remainder of the paragraph is there to support your position.
Find a theme
49. Every case should have a central theme or themes that evolve from one or more issues. It's your job to find that central theme of your case that on the facts and applicable law creates for us a strong arguable case. It's your job to strongly articulate such a theme in your factum – and the job of opposing counsel to puncture that theme or frustrate it and take it apart.
50. The most powerful themes go beyond one idea and lock two opposing ideas in conflict, creating a dialogue. For instance "the defendant valued money more than safety." In such instances, it is not the moral of the story that involves the reader so much as the struggle between the two opposing points of view in the theme.
51. Today, the media communicates information in sound bites. The theory of a case cannot always be reduced to a sound bite, but, when it can be boiled down to a phrase or a few sentences that can be reiterated from jury selection, through the presentation of evidence and in closing, it can be very effective.
52. If others are participating, make sure you have a unified theme.
Write your theme down
53. For best effect, write down your theme before you start drafting your document. Writing the story or the theme in a paragraph before you start writing lets you add and subtract facts to make the more compelling parts of that story last longer and shorten or delete parts that are simply boring or not in your favour. Start "this case is aboutâ€¦".
Stay true to your theme
54. In order to be persuasive, the evidence and arguments have to make sense and fit into the framework that your reader has adopted. If you don't stay consistent to your theme, the reader will be confused and lose the thread of your argument.
What, where, when, why?
55. Any case is more than just a pile of facts or a pile of law. The reader wants to know the four W's: what, why, when, where. Particularly for a leave to appeal, we have to demonstrate interest: motive, character, cause and effect, our personal notions of responsibility for our conduct – things like this tie stories together and develop a theme. For example, a case about contract law is more than simply about a contract; the emotional heart of the case could be our side's reliance on a broken promise. Therefore words like believing the promise, trusting the person, counting on, relying, paint the verbal picture.
Use a thesaurus. Make a list of synonyms.
56. Oftentimes, your theme can be tightly articulated by a pithy phrase or even a single word. Reduce your story to a workable outline or a set of topical words and use a dictionary that has synonyms to come up with other words that say the same thing in different degrees of shading, and use these words in painting the picture.
57. The difference between the almost right word and the right word is a large matter. Mark Twain wrote in 1890, "`tis the difference between the lightning-bug and the lightning."
58. The degree of "preciseness" of a given word can be determined by considering its explicit meaning as well as what it suggests.
59. Consider for instance, the following pairs of words (not synonyms);
Logic – 5 ways of building it
60. Logic is important to your outcome: 1 therefore 2, X therefore Y, negligence therefore damages. People think this way. Five options to build logic include:
Beware of clichés
61. Expressions worn thin by countless repetition are not persuasive and should be avoided.
62. Everyone's familiar with the expressions below – familiarity is precisely the problem.
The importance of the analogy
63. As a practical reality, most people reason from analogy based on their experience. People decide what feels right. Many non-lawyers (and judges) cannot easily accept a new proposition unless it's a logical extension of an already-held view. A simple analogy can go a long way toward convincing your listener, either to confirm what they already accept, or move one step sideways from an accepted position.
Be realistic – maybe there's another side to this
64. Every case has two sides. If you close your eyes to the other side's case your client will suffer. Your credibility will be affected if you ignore, or worse deny, indisputable problems.
65. A good strategy is to be the first to reveal the damaging information. Do not describe it as a "problem", call it a "challenge". Tell the judge before your adversary stands up and does it for you. Sounds simple, but be fair – it builds reputation.
66. Treat every brief and factum as a chance to build your and your firm's credibility with the court.
67. Not every lawyer is brilliant, but every lawyer can be credible. A lawyer who acknowledges in a strategic way the obvious challenges of their case up front and with candor is going to be more credible throughout the proceeding. Likewise, nothing will alienate the court more than the appearance that you're distorting the plain meaning of a case or deliberately overlooking an important case or finding of fact.
Adverse authority: put it in and deal with it
68. Confront applicable adverse authority expressly and early – not merely because you're an officer of the court, but because it's more strategic to do so. The other side will probably cite it anyway, and even if they don't, the clerks will find it, or the judge may know it. Not all precedents are created equal. Even if you are faced with adverse authority, consider whether your case is one where you should ask the court to make new law.
Argue less persuade more
69. The harder you argue, the less persuasive you are. The reason is simple. The more you press, the more you hype, and the more you wheedle and urge, the more sales resistance you create and the more you start to sound like the guy from Fred's Water Beds on Saturday night TV.
70. Real persuasion takes place when the reader thinks the conclusion is his or her own idea. Your job as a writer is to help them find the right ideas in themselves that will lead them to decide the case your way.
Don't overstate your position
71. Understatement usually works better than overstatement, e.g., saying the other side "completely misrepresented and misstated X" is generally not effective (unless that's actually a fair and accurate representation – and even if it is, maybe it's strategically better for the reader/listener/judge to figure that out himself/herself).
Let go of the little stuff
72. Minor misstatements of the law or facts by the Court below aren't going to win your appeal (appeal courts aren't professors grading papers). Don't set out to just whack the Court below or judge below, rather identify major mistakes and criticize the rationale of the lower court's decision.
73. Don't whack the other side either – use courtesy (especially when it's tough to do so) as a strategic tool. Advice given to Ed Bayda, now Chief Justice of Saskatchewan, during his first summer job (selling "waterless" cooking pots door to door): "People buy things from people they like".
The passive voice
74. Generally the passive voice should be avoided in favour of the active voice: for example, the case was decided by the court – passive; the court decided the case – active; the statute will be enacted by Parliament – passive; Parliament will enact the statute – active.
75. However in situations where you are strategically trying to be tactful, the passive voice is OK:
Active: The president of the corporation shredded the papers.
Passive: The papers were shredded by the corporation's president.
Active: Parliament enacted the statute in 1982.
Passive: The statute was enacted in 1982.
Active: Somebody mysteriously shredded the files.
Passive: The files were mysteriously shredded.
Active: X regrets to inform you that he has misplaced the file.
Passive: X regrets to inform you that your file has been misplaced.
Caring is contagious
76. If you're passionate about what you write, about what you say, other people will be too.
A word on page limits
77. Page limits imposed by the courts (e.g., 20-pages for a S.C.C. Leave to Appeal factum) are NOT an invitation to cram as much as you can onto each page. This tactic defeats the spirit of the page limit, aggravating the judge and ruining the visual impact of your submissions, and maybe ruining your case.
Caselaw – give the court a break
78. Give the court credit for knowing a little law. Many factums don't seem to recognize that there's a core body of legal cases and principles well known by the courts. These foundational cases are referred to so frequently that every member of the court is intimately familiar with them. In those situations, there's no need to spend three pages of your factum painstakingly articulating the basics of the law.
Be selective in what you cite
79. Only cite the leading case, or, at most, the two leading cases. Safety lies in authority not in numbers. Citing 15 cases for the same point of law tells the judge one of three things:
Only include necessary quotes
80. People hate to (and usually don't) read long block quotations. Paraphrasing is usually a better strategy than direct quotation. If you must include a quote, the best approach is to knit it directly into the paragraph, or at a minimum:
Citation, "at p. Â·"
81. Obviously double-check all cites. But also highlight (yup, with a yellow highlighter) each key extract/sentence in your Book of Authorities/ Authorities Tab so the judge doesn't have to search for your point. An (acceptable and better) alternative to highlighting is sidelining and underlining the master copy – so you only do it once, it gets copied through to all other copies, and you don't have to highlight in multiplicity.
82. Always when citing a case put the actual page/paragraph that your point/quote is on – just giving the judge the standard cite with what page the case starts on and forcing him/her to go read the whole case to find a single sentence is a real judicial piss-off factor – if you're in for a vasectomy why insult the guy (or gal) with the knife?
Check your work: float it by someone else
83. Two lawyers (or, better, a lawyer and a non-lawyer) are generally better than one. So, after you've done a few drafts, let someone who isn't familiar with the case have a look at it. Listen, don't talk, or explain – if you have to talk or explain, whatever you've written is not good enough. A farmer friend of mine says, "When I talk I learn nothin'".
84. We all (lawyers in particular) think we know what someone is going to say when they're partway through saying it – we don't, because they haven't said it yet.
85. John Steinbeck: "No one wants advice – only corroboration".
86. If the reader doesn't understand your points, stumbles over a phrase, or can't cut through a thicket of verbiage, you've failed as a writer.
87. Don't be shy to redraft – and redraft till you get it right. No serious writer gets it right the first time – why should you? Louis Brandeis: "There's no such thing as good writing – only good rewriting".
The importance of the factum: central document, more important at appeal than oral argument
88. The importance of the factum is obvious when you consider it's the central document at all stages of an appeal or motion. Practically speaking, the factum is quickly becoming more important than oral submissions. Given their heavy workload and the limited time allotted for oral arguments, there is a natural tendency among judges to come to a preliminary judgment upon the basis of written submissions. Therefore, the factum is a critical first opportunity to make a favourable impression on the court. Many cases can be won and lost on the basis of the factums alone.
Purposes of the factum: before, during, afterstrong>
89. Your factum must serve different purposes at the different stages of the appeal process:
Oftentimes, judges will lean heavily on a good factum when writing their decision.
Opening: crashes, first page, Tim Horton's
90. Mr. Justice Estey used to say most plane crashes happen during take-off. Likewise your opening.
91. "The first page rule". The first page should say it all. Every factum should contain an overview statement (no longer than one paragraph) that tells the reader what the case is about, who did what to whom, what the issues are, and outlines our position on those issues.
92. Tell your story in human terms, as if you're explaining this to your fifteen-year-old kid brother or sister (my own personal technique is to close the office door, think I'm in a line-up at Tim Horton's, I've just ordered a medium double double, and cashier says "so what's your case about?").
Avoid common opening statement blunders
93. Your opening statement becomes a filter through which evidence introduced will pass. Evidence consistent with this filter becomes more reliable, credible and acceptable. Evidence that conflicts with it will be questioned or discounted. Do not squander this opportunity for persuasion by using clichéd and banal introductions that turn the judge(s) off or render them neutral/ politely disinterested.
94. Avoid the following:
Purpose of the overview: grab attention, road map
95. The overview statement is important for two reasons:
Your opening paragraph – by definition you've only one chance to make a good first impression
96. Having the reader's attention is a necessary precondition for persuasion. A strong opening statement will grab the reader's immediate attention by:
No-No's of Openings – Rid Your Opening Statement of Taboos
97. Some Do's and Don'ts (mainly don'ts):
98. In your introduction and fact section, your goal is to build credibility and motivate the judge to rule your way.
99. Credibility comes from the details. Be respectful, be detailed and be reasonable in the relief you request.
100. Weak arguments will hurt your credibility. By showing a judge that you are willing to lead her into error, you reduce the trust that you want the judge to have in your other arguments.
101. Most factums are too long. At rock bottom, most cases really aren't that complicated. Select the facts, events and legal arguments likely to control the outcome of the case (and leave the rest out).
102. Too many factums are puffed up with all sorts of extra arguments. Generally, this reflects the uncertainty of counsel as to which issue is likely to grab the Court's attention and the misguided belief that the client's interest is best served by presenting every conceivable argument, like you're a chef at a hotel putting on the biggest breakfast brunch possible to impress the locals. The put-everything-in tactic generates a large number of 'throwaway' arguments - and may tempt the Court that's what should be done with the rest of your factum.
Be real, don't be academic
103. Don't be academic. Write your law review article after you've won the case and changed the law. The key to a good factum is: clarity, brevity and simplicity. No-one has ever been convinced by an argument they didn't understand (no matter how brilliant it may have been).
Table of contents and why headings are important
104. In all likelihood, your table of contents will be read first. The purpose of the table of contents is to help the reader navigate through the body of your submissions. Therefore, your headings and subheadings summarize your position; mirroring the logical flow of your argument.
105. Choose headings and subheadings (so they'll show up in the table of contents) that:
The facts shape the outcome
106. All courts are powerfully influenced by the equities of the case, by the needs of real people. The facts have an overriding influence. The facts really are the hardest part of the factum to write because of our training as lawyers. Writing legal argument is almost easy, but the facts are where most of the time should be spent. After all, the facts are the context within which the legal issues are decided and that factual context is therefore highly determinative of the overall outcome.
Frame facts to fit theme
107. Scenes or units of action that illustrate the theme are more engaging than narrative summaries of facts or courtroom recitations of evidence.
Craft your facts
108. Although readers generally best remember stories told in chronological sequence, it may be more strategic for us not to start at the beginning but start with the most significant event in the case (particularly if we're the respondent).
Take the moral high ground
109. The statement of facts provides us with a rare opportunity to tell the court our client's story and capture the moral high ground . Courts are frequently motivated by a desire to create fairness between the parties, irrespective of the existing law. The key to getting judges to depart from established precedent is a compelling and sympathetic presentation of the facts.
Give the judge the question
110. Only one thing matters to the judge: "what's the question I'm supposed to answer?" Until the judge figures that out, he or she is not going to pay much attention to your argument. The key to influencing judges and winning cases is to focus your attention on the key issues as soon as you get in the door. In order to effectively do this, identify the issues early and let everything develop out of that.
Drafting points in issue
111. The ability to ferret out the real issues and organize the presentation of evidence and argument according to those issues is indispensable.
112. Some counsel operate under the mistaken assumption that everyone will agree on the principal issue of a case. In reality, the ability to define the issue and thereby control the agenda is invaluable since it's the way that the question is framed that may ultimately determine the ultimate judgment.
113. Don't start with the word "whether". If possible, do not ask a question.
114. Weave concrete facts into the way you write the issues, so (if at all possible) you tell the story in miniature.
115. Write the issues so the answer you want is highly suggested – in some cases directly suggested, in other cases it may be more strategic not to be so direct.
Make your issues clear
116. Brevity and clarity should be the underlying goals of framing your legal issues.
Deep, not surface issues
"Deep" issues sum up a case in a nutshell and are therefore difficult to frame but easy to understand
"Surface" issues are abstract and require the reader to know more about the case before she can understand it. Consider the following example:
Surface: Is Continental entitled to summary judgment on Jones's fraud claim?
Deep: To maintain a cause for fraud under Ontario law, a plaintiff must show that the defendant made a false representation. In discoveries, Jones concedes that neither Continental nor its agents or employees made a false representation.
119. The surface issue does not disclose the decisional premises; the deep issue makes them explicit.
Limit the issues – Abide by the Rule of Three
120. In any appeal, the significant issues cannot number more than three. If you've identified more than three critical issues, then you're wrong (strategically). Few trial judges make more than three reversible errors in a single judgment (but if they do, and do often, you can start your appeal with "This is an appeal from the judgment of Mr. JusticeÂ·, but we have other grounds of appeal as well").
121. Anyway, secondary issues aren't worth pursuing. If you can't get the court to bite at your main point, then he or she isn't going to swallow your second or third string arguments.
Make it work
122. Tailor your arguments to what works. Sure, the other side's case is a piece of garbage. But you know what, the righteous do not always win. If you've got the choice to win in your mind or in the courtroom, what would be your choice?
Write your arguments "on the back of an envelope"
123. Justice Binnie advises a simple and coherent theory of your case: if you can't get your points on the back of an envelope then you probably haven't thought about it long enough. If you've followed this advice, it should be easy to summarize your argument in a single page at the beginning of your factum.
Memorandum of Argument: build it around your theme
124. Select the main ideas proving your conclusion, then arrange them in such a way that the relationship they naturally bear to one another and to the overall theme, together with all the main headings and subheadings, drives the reader towards the conclusion we want them to reach.
Don't hold anything back for oral argument – this isn't Hollywood
125. Put all your best arguments into the factum. In the past some counsel would save the best part (or a good part) for oral argument. Today written submissions are much more important than they once were and so this is no longer an advisable strategy (if it ever was). It's possible to overcome an inadequate factum during oral argument but it's an uphill battle. Why put yourself in the position if you don't have to?
126. Jon Fauld's "Series of Dots Theory of Advocacy": in some cases it may be strategically better to hold something back in written argument [explain verbally].
The appellant's factum: courts of appeal often presume trial judge got it right
127. The appellant should never forget that appeal courts often presume the trial judge actually got it right. Since the odds are against you, it's especially important for the appellant to grab the judge's attention immediately and demonstrate that an error has been made.
The respondent's factum: stand-alone document
128. A factum should be a self-contained, comprehensive argument. It should review all of the essential facts, summarize the legal issues and present the arguments in a complete and methodical form. Cross-referencing over to the appellant's factum is a pain in the neck. Give the judge the ability to take your factum home and read it on his/her knee without having to jump around. Even if an authority is in the appellant's factum and you're referring to it, still put it in yours. If you absolutely must refer to something in the appellant's factum, include the full quotation.
Play your own game
129. The respondent isn't obliged to respond to every argument raised by the appellant. Play your own game, don't let the appellant make the rules: just because you're called the respondent doesn't mean you have to respond, or only respond – strategically it may be better not to, or not to all.
Conclusion: Make sure there is one
130. Make sure there is a conclusion. Don't just end by outlining the relief requested; remind the court why relief is required in your case.
Conclusion: Relief requested
131. Occasionally, the relief requested can be tricky. Although there is a tendency to simply ask that the application or appeal be allowed or dismissed, it's obviously worthwhile to carefully consider all of the alternatives before deciding.
Conclusion – Option #1: Tell the court why
132. A good closing will encapsulate two or three compelling reasons for the court to adopt your position. In brief, make your conclusions clear and make your reasons explicit. What you are really trying to do is draft the judge's decision.
Conclusion – Option #2: Answer your own questions
133. Writing the conclusion is simple if the opening was well-drafted. A good advocate will close by answering the questions posed in the issues section. However, it isn't enough to simply give the answers, a good conclusion will also outline the reasoning that leads inevitably to the answer provided.
Conclusion – Option #3: Finish where you began
134. Pick up the theme of your opening. Restate it, refine it, re-develop it. It can build a logical solidity, can close the circle.
135. Oh and one final thing: ask for costs – even at the S.C.C. a surprising number of (non-Celtic) counsel forget to ask for them.
136. As my mother told me (and your mother told you): "if it's worth doing, it's worth doing well".*
* Or as my grandfather would say when I tried to reply to my mother with any sentence beginning with "But" – "Save yeer breath tae blaw on yeer pooridge."