Effective and Persuasive Written Advocacy

Conducting a Commercial Trial - Handy Guide

 RTF version

Victorian Bar CLE
Justice Jennifer Davies*
7 August 2013

The importance of written advocacy

Writing well is a powerful tool in the practice of law. Just like oral advocacy, the purpose of written advocacy is to persuade and in order to be persuasive, the document must be useful for the intended reader. Written work that is dense, impenetrable, lacking cohesion or badly structured will rarely be useful and sometimes may be counter productive. A valuable opportunity to persuade will have been wasted, sometimes irredeemably.

Written advocacy has played the part of the poor second cousin to oral advocacy but increasingly written advocacy has taken on a more significant and important role. Opening and closing submissions are usually filed in civil matters and in appeals written arguments must be filed before the hearing. The written argument thus provides an opportunity to persuade the Court before oral address has any role.

Written advocacy is not confined to submissions. The way in which cases are presented in the form of pleadings, affidavits and witness statements is also a form of advocacy. The techniques of writing effectively and persuasively apply just as much to those documents as they do to written submissions.

Process of writing

The process of writing to persuade has other advantages. Good writing imposes a rigour in analysis by exposing the strengths and weaknesses of an argument and forcing an evaluation and re-evaluation of content. Writing out an argument helps the writer to understand his or her case, to define, refine and recast the matters that the Court must decide, to identify the facts that materially bear upon those matters and how best to present and express those facts, and weave them into the legal issues and arguments and how to put the legal argument.

Some techniques for effective and persuasive writing

Written advocacy is a skills based discipline, which is different to oral advocacy. For most people, good writing only comes with a great deal of effort and time consuming iterations of drafts. Perseverance is rewarded with a document that achieves the purpose for which the labours were intended.

People have different styles of writing and should write in style of writing with which they are comfortable. Whatever the style of writing, there are some techniques that are useful tools for effective and persuasive writing. 

(i) Framing the question or answer

Identifying the issues in broad abstract terms does not meaningfully convey what the Court must decide. Expressing the issue as:

Did the defendant engage in misleading and deceptive conduct?

Of so, what damages is the plaintiff entitled to recover?

tells the Court nothing about the actual dispute or the matters to be decided.

The issue should identify for the Court what the Court must actually decide. Think about how to express the issue so that the judge understands what is in issue and why. A well framed issue provides the roadmap for the presentation of the facts and argument.

Think about how key facts can be used in defining the issue. By way of example:

"In New York, a person who knowingly purchases goods cannot bring a claim for breach of implied warranty. Sandra O'Kefee admitted that she purchase her 1993 Acura- the vehicle she claims the manufacture impliedly warranted – with more than 11,000 miles on the odometer. Did the trial court properly dismiss O'Keefe's claim for breach of implied warranty because the car was used when she bought it?"

"David Jackson 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. Jackson'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 denying Jackson's motion for a continuance to allow him time to find a new expert."^[1]

Using the power of logic, issues can be framed in a way that identifies the question, delivers the answer to the question and the reasons for that answer.

(ii) The power of facts

The temptation often is to set out facts chronologically. Sometimes that may be appropriate but more often than not the materiality of the fact is not apparent and often a chronology will include all kinds of facts that simply do not bear upon the issue to be decided.

Only include facts that are relevant to your argument and present them in a way that makes it plain why they are relevant. Working out the facts to mention requires an understanding of your case. Once identified, use those facts in a way that gives them best effect. Sometimes that may be by way of narrative or by incorporating the facts into the legal analysis. Sometimes it may be in the way in which the issue is framed. Facts need careful choice and careful expression. How you order and present the facts can be a powerful tool for persuasion.

(iii) The architecture of writing

• Structure is important. The document should provide an easy road map for the reader to follow so that the reader from the outset is able to follow the significance of what he or she is reading. Use the first few paragraphs to set the context and explain where the document is leading. Headings can also be useful.
• Proceed logically.
• Use simple expression.
• Good grammar, punctuation, use of paragraphs and different sentence lengths are basic tools.
• Choice of active or passive voice will have an impact. You should know the difference and know when to use which voice and why.
• Think about choice in expression. For example, expressing a positive in a negative way may have a more powerful impact or vice versa.

(iv) The order in which you present your arguments

• Lead with your argument, not your opponent's argument. By focusing on your opponent's argument you divert the Court's attention to that argument, not to the content of your own.
• It is often helpful to bear in mind the CRAC method: Conclusion, Rule, Analysis, Cases. By starting with the conclusion and the rule that informs that conclusion, the reader is provided with an immediate context for the analysis that follows.
• When quoting from cases explain the relevance of the quote. Unless the relevance is explained, there is the danger that the reader will either gloss over the quote, ignore it altogether or misunderstand its relevance.

(v) Write for the reader

Always bear in mind the intended reader and write for that person or persons. If the intended reader is the Court the document can be used to provide a template for the Court for the way you contend that the Court should decide. Ask yourself the question: What does the Judge need to know and how can the material best be presented to the judge? 

Useful reference material

There is a considerable amount of literature on persuasive and effective writing. Some useful articles are:

The Honourable Justice GT Pagone, "Written Advocacy: Writing with effect and persuasion" Published in Essays in Advocacy by the University of Adelaide's Barr Smith Press
The Honourable Justice KM Hayne, "High Court Rules 2004, Introductory remarks at seminars for the legal profession" (October/November 2004)
The Honourable Justice KM Hayne AC, "Written Advocacy", a paper delivered as part of the continuing legal education program of the Victorian Bar, 5 and 26 March 2007.

Useful books are:

S D Stark, "Writing to win" (Main Street Books, 1999)B A Garner, "The winning brief" (2^nd Edition, OUP)
B A Garner, "Legal writing in plain English" (Chicago Press, 2001)
B A Garner, "The scribes journal of legal writing, interviews with United States Supreme Court Justices" (Scribes 2010)
G T Pagone, "Tax effective writing" (The Federation Press, 2013)

* Judge of the Federal Court of Australia
^[1] From Bryan B A Garner, "The winning brief" (2^nd Edition, OUP) p 97