10 Tips for Better Legal Arguments
Craft better Legal Arguments. Here are 10 useful tips.
(or ‘Advice to Juniors-Part 2’)
[Tip-1]: Plan your submissions to be read in 15 minutes
A judge has many calls on her time. Judges are always exhausted, and distracted by their legal burdens.
Dismayed by the mass of confusing material scattered across her table, she spots a short document.
Which will she read first: the short document or a long one?
Which would you?
She will [always] give you 15 minutes.
Do not squander those 15 minutes.
Plan your submissions for 15 minutes.
[Tip-2]: The First 100 words in a Written Argument will Make – or Break – Your Case
Seniors call that a ‘hook’. You throw a hook at the court, hoping for a ‘bite’.
It is crucial to explain to a judge pivotal matters in the first 50 words she sets her eyes on – these being:
(1). what is the case (or application) you are supporting (or opposing). The judge will ask herself, “Can I give this order?” (This means she will ask herself, “Do I have the jurisdiction or power to grant this relief?”, and “If yes, should I grant it?”
The ‘should’ part deals with how should she exercise her power or discretion.
Pay equal attention to both the “Can I” part, and the “Should I” part.
(2). why it is right (or wrong); and
(3). why your stand must obviously be right.
Look at the example below. It is a ‘hook’ thrown at the end of a trial.
“This claim demands the defendant pay a huge sum of money – out of all proportion to any actual loss suffered – that it defies sec. 75 of the Contracts Act. A recent Federal Court case of X v Y and Z destroys the plaintiff’s case.”
A total of 45 words.
The moment the judge reads these words, she will know exactly where you are going. She will already be on your side. It is your opponent who has to climb all the mountains.
[Tip-3]: Guide the court with milestones
Remember the Brothers Grimm’s Hansel and Gretel?
Do not mark your way – as did the children – with ineffective bread crumbs. Set down milestones for the judge. ‘Milestones’ help the judge ‘home’ – to your victory.
There are two kinds of milestone.
The first milestone is the ‘Contents’ page, placed right at the beginning. It is a map. It lays out the route the judge will follow.
It is dead easy to generate a Contents Page.
YouTube will teach you how to do it in Microsoft Word, or Pages.
The second set of milestones are the Subject Headings that go with your submissions.
You will see that in the ‘FILACR’ section next.
[Tip-4]: Exploit the ‘FILACR’ formula
This is a formula I have tested and re-tested.
“With the FILACR formula, you will never go wrong
Here it is for your use:
[Tip-5]: ‘F’ stands for ‘facts’ – not any fact but ‘relevant’ facts
Do not write a single word in the submission that doesn’t help you. If you can write a 5-page Written Argument, you are a champion. The very top lawyers do it, seemingly effortlessly. They are able to place the most complex legal arguments within a narrow compass.
This skill can be mastered, but it is labour intensive.
I have a final tip – do not cite irrelevant facts or law. Pare your arguments to the bone.
[Tip-6]: ‘I’ stands for ‘Issues’
A legal dispute is resolved by answering various questions – both evidential and legal – mostly legal – that arise during the case.
These questions are called ‘issues’.
Set out the issues that require the court’s determination. It would be helpful if you can, in less than 20 words, explain why the issue should be answered in a particular way.
Cite, in a footnote, the relevant caselaw, so that it does not take up real estate.
The determination of the issues also focuses your mind – and that of the judge – on what the target looks like.
[Tip-7]: ‘L’ stands for ‘law’ and ‘legal principle’
For each issue, set out the relevant legal principle and, where necessary, make distinctions why certain cases are wrongly decided, ought to be construed narrowly, or distinguished.
Always choose Federal Court authorities. If you cannot find a strong local authority, seek out decisions from the Privy Council, the UK Supreme Court, or the House of Lords.
Look out for Australian ‘High Court’ decisions as well.
In Australia, courts which are of equal standing to our High Court are their ‘Supreme Courts’; and the equivalent of our ‘Federal Court’ is their ‘High Court’.
Do not waste your time citing High Court decisions, or even Court of Appeal decisions.
This is because these cases are ‘mobile’. By the time you cite them, they could have been overruled by a higher tribunal.
When you cite High Court or Court of Appeal decisions, it will be wise to check [by trawling online journals] whether cases you cite have been distinguished, overruled or narrowed by a higher tribunal – in which event they become quite useless as authorities – unless your argument is that the decision had been wrong all along.
That too, is never done until the Federal Court is reached and that too, usually during Leave Applications.
Even then, this method of argument should only be applied at the Court of Appeal or at the Federal Court stage.
Trial courts do not like the idea of changing the law, and their superiors do not, either!
[Tip-8]: ‘A’ stands for ‘application of the law to the facts’
This is the crucial part of your submission. It is into this place that the judge will be looking to when she is about to make a decision.
Analyse whether your facts fit established principles of law; and if there are difficulties, synthesise new, logical positions – and explain your reasoning process.
Point out your opponent’s weak areas and call out the frailty of his arguments. Explain why your opponent’s arguments do not answer the issue at hand.
Note four points: attitude, pace, tone, clarity.
Carry out your job firmly and professionally.
Despite being baited, do not make personal remarks.
Do not snigger.
Do not try to be clever.
Do not be fearful of ‘technical objectors’.
Such counsel are not made of sterner stuff.
They fear of losing their case on merits.
You need not fear such lily-livered counsel.
The judge will sense them, and put them down.
Be helpful. Always be courteous.
Acknowledge the difficult points you face.
Whatever you do, do not avoid them.
Explain carefully why these points do not trouble your case.
Be honourable in the arguments you take.
“Do not confuse over-enthusiasm for sincerity. Make your stand reasonable
This kind of attitude earns the bench’s respect. It will take a while, but word will get around.
Do not confuse the judge.
Keep your arguments lucid and short.
“Remember: lucidity is not simplicity
Pace yourself. Be measured. Be slow in speech (so it sinks in); but be economical with the court’s time.
Watch your tone. Do not sound hysterical. Francis Bacon once equated “much talking” to an “ill-tuned cymbal”.
Judges dislike disorganised and garrulous arguments.
“So do you wish to be Mr. Disorganised Long Winded or Mr. Brief And Lucid?
The very best lawyers have certain qualities. They: –
(1). summarise principles in less than 20 words,
(2). ask the questions in the right order,
(3). cite no more than one authority per point;
(4). explain difficult points raised by their opponents,
(5). demonstrate why their authorities are relevant to the issue before the court, and
(5). clarify the authorities against them that have no role in the judge’s decision-making process.
[Tip-9]: ‘C’ stands for ‘Conclusion’
This is the high point. This is the destination. This is the Target.
So, for each issue, draw the strands of your arguments together – in less than 10 words per sentence – and come to a logical – but always a reasonable – conclusion.
“In a contest between Reasonable and Logical, Reasonable always wins
At the end of this phase, a Conclusionary Statement will tell the judge that you have reached your Target. The judge will now be ready for the next stage – the grant of relief.
[Tip-10]: ‘R’ stands for ‘Relief’
It is at this stage that you must inform the judge what order you are asking for; and why it must be granted to you.
Be brief but clear on what it is that you want.
If you want ‘consequential orders’, [or ‘alternative orders’, if the judge should take a different view], state them clearly.
Explain how the cases support the grant of the relief that you seek.
[The author expresses his gratitude to Ms KN Geetha, Mr JP Kirat Singh, Mr GS Saran, and Ms KP Kasturi]