Out-of-the-box Written Advocacy – 2020 Legal Writing Seminar
The Publications Committee’s annual Legal Writing Seminar was held virtually on 4 November 2020 with the theme “Out-of-the-box Written Advocacy”. Behind that theme was the urge to invigorate written advocacy and make it more effective. Every indication is that written advocacy will increase in use and importance, with Hon. Michael Kirby AC CMG noting that it takes judges a quarter of the time to resolve issues on written, rather than oral, submissions. Current judges confirm in conversation that the enforced move to written submissions in the pandemic is more efficient for them than the usual oral submissions. Written advocacy is already the norm in international arbitration.
Speakers this year were Monica Chong, a commercial disputes partner at WongPartnership LLP, Rod Bundy, a public international law disputes partner at Harry Elias Partnership, the Hon. Wayne Martin AC QC, former Chief Justice of Western Australia and now arbitrator, and me. Monica spoke from the perspective of local litigation, Rod spoke of his experience before the International Court of Justice and other international tribunals, Wayne spoke from the point of view of a judge and arbitrator, and I spoke of international arbitration. The session was moderated by Sonita Jeyapathy, Deputy Director of the Legal Skills Programme at NUS.
It is fair to say that no one suggested anything revolutionary, with the overall message being “simplify, simplify, simplify”. Simplify your document structure, simplify your arguments, simplify your sentence structure, and simplify your words. Simplification requires sharpening of your thoughts which in turn sharpens your point and shortens your submissions. Win-win-win.
Points made in the seminar were:
- Know your audience, your client and the occasion (procedural, trial, appeal).
- Have a case theory, know your case theory and keep to your case theory in every submission. This will keep the submission targeted, relevant and helpful.
- Write the judgment or award you want, helping the decision-maker with references and an absence of hyperbole.
- Use your prime real estate well by giving the necessary facts early rather than a tedious recitation of preliminary, procedural or technical matters.
- Give a road-map of the content of the document at the beginning and then, in long documents, periodically throughout. A descriptive table of contents is one type of road-map.
- Sections should flow logically from one to the next, with a connecting paragraph or sentence and a healthy dose of signposting.
- Facts, facts, facts. Cases are won on facts.
- Decision-makers need to be refreshed on the facts, less so on the law unless it is an esoteric point or a fine distinction. But they still need the facts more.
- Decision-makers are human, have been where you are, have read a somnolence of submissions like yours and have heard a thousand nights of stories. They have experience, emotions, convictions, prejudices, finite attention and patience.
- Words are your enemy; if words are your friend, don’t abuse them by overuse. Don’t drown your main points in a sea of words. When in doubt, break it up.
- Use simple words rather than ostentatious polysyllabic verbiage designed to impress. It doesn’t.
- Remove all adverbs, adjectives, intensifiers and obfuscatory persiflage. Try to remove “however”, “therefore”, and all unnecessary introductory editorial.
- Remove “we submit” in submissions. They are submissions, ergo you are submitting.
- Every mark on the page is a distraction for the decision-maker which they need to read and process. The fewer the better for your points.
- Frame the issue in one paragraph of less than 75 words in three sentences of [statement- statement-question] or [premise-premise-conclusion], eg:“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 doctors have just discovered. Did the trial court abuse its discretion in refusing to grant Smith an adjournment?”
- The CRuPAC method is suited to academic exercises and is useful as a mental disciple. It is usually not the most appropriate for submissions.
- Footnotes, though, can be useful sparingly.
- Refine, refine, refine. Don’t stop refining your submissions.
- Apply the 50/50 rule—halve the number of words then halve them again.
- If your client insists on multiplying words unnecessarily, tell them what you heard here.
- Evoke, don’t “emote”. Describe the situation to evoke the emotions rather than simply stating the emotions or vilifying the opponent.
- Don’t descend, or be drawn, into personal attacks on your opponent. Rise above them and earn the respect of the decision-maker.