By Judge Alan Troy, District Court of Western Australia

First published in Brief, the official journal of the Law Society of Western Australia

Adapted from a paper presented at a Law Society CPD seminar

Introduction

The purpose of this paper is to make some suggestions on improving the quality of written submissions. Writing well is not easy. As I will elaborate upon orally, I have drawn heavily on the work of Bryan Garner, Professor of Law at Southern Methodist University in the USA, both in his own right and in collaboration with the late Justice Antonin Scalia. I have also applied the advice, along broadly similar lines, in J. Yellowlees Douglas’ book, The Reader’s Brain – How Neuroscience Can Make You a Better Writer‘ (Cambridge University Press 2015).

In the contemporary legal landscape written advocacy is, with the exception of jury trials, at least as important as oral advocacy. Fundamentally it is an exercise in trying to persuade another human being, the judge in your case, to agree with you. In trying to persuade the other person to agree with your argument do you make it easy for them to agree with you or difficult? Do you force them to wade through superfluous detail or not? Do you reassure them that your argument is in conformity with established appellate authority or suggest that you are inviting them to break new legal ground? Do you attempt to satisfy them that the outcome you desire is objectively the fairest and most equitable one? The answers to these questions are, of course, self-evident and should be the guiding force behind your written submissions.

Your reader is not reading your submissions for pleasure. Nor are they trying to assimilate every word as if there is a test at the end. They are trying to extract information as efficiently as possible.

As a general proposition, throughout your career you should strive to strengthen your command of written English. I cannot do better than quote a section from the text: ‘Making Your Case – The Art of Persuading Judges’ by Scalia and Garner.

At page 61 the authors write:

You would have no confidence in a carpenter whose tools were dull and rusty. Lawyers possess only one tool to convey their thoughts: language. They must acquire and hone the finest, most effective version of that tool available. They must love words and use them exactly. Cultivate precise grammatically accurate English; develop an appealing prose style; acquire a broad vocabulary. Naturally, these are not tasks you can undertake a month before your brief is due. They are lifelong projects and you may as well begin them at once.

It is important to hold the trust of your audience. You risk forfeiting that trust by conveying false information, even inadvertently, mischaracterising authority to suit your case and ignoring rather than confronting obvious competing arguments. Your argument becomes more appealing if you fairly present the facts of the case and honestly characterise the issues.

In drafting written submissions your task is to take the material that is before you, in perhaps several lever arch files, and figure out from the mass of possibilities precisely what your points are, and then state them coherently and with adequate reasoning and support. But to do so as economically as possible.

Your objective

The overarching objective of written submissions is to make the Court’s job easier. That objective is achieved by:

• brevity;
• simple, straightforward English;
• clear identification of the issues;
• a reliable statement of the facts;
• informative section headings.

The written submissions must form a coherent whole. Design the entire writing, from the statement of issue to the conclusion, to bring out your theory of the case and your principal themes. What three or four points are most important for the judge to take away? Ensure that both the structure of the submissions and its content are designed to make these points stand out.

Making a start

It is tempting to get writing immediately to try put at least some of the task behind you. It is a good idea, however, not to start to write the first draft until you have spent time absorbing and reflecting on the nature of the case that you are writing about. Jot down ideas that occur to you before your overall approach to the case becomes too fixed.

Once you have mulled over the issues in your mind you are not necessarily in a position to embark upon drafting the submissions in final form. But you are ready to begin to sketch an outline.

Garner suggests the following approach. Firstly, use your imagination to churn out copious thoughts and ideas as quickly as possible. This should account for 15 – 20% of the total time expended in drafting an outline.

Secondly, arrange those ideas in complete sentences and in a sensible order. A good outline can be as simple as three propositions arranged in the most logical and powerful order. This should account for less than 10% of the time expended.

Try to place your strongest argument first. Couple it with the counter argument and your rebuttal of the likely counter argument. Change the order of your points to ensure that the final argument flows as logically as possible.

Thirdly, write out a draft, joining sentence to sentence, paragraph to paragraph. This is the longest of the four phases and should account for 40 – 45% of the time expended.

Finally, set the draft aside for some time before returning to begin editing it. This will take up the balance of the total amount of time spent working on an outline.

These phases are distinct and should not be blurred. Taking breaks between the phases assists in that regard.

Structure of submissions

As is the case with all good writing written submissions should contain an introduction, a main body and a conclusion, as opposed to a piece of work that is, in essence, entirely the middle.

Captioned section headings

Use captioned section headings. I try for full sentences, ideally no lengthier than a single line. Garner is comfortable with a lengthier heading but to a maximum 35 words.

Table of contents

For lengthier submissions a table of contents is likely to be desirable.

Consider this example from an amicus brief filed by the American Bar Association in the Supreme Court of the United States.

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES	iii
PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT	3
ARGUMENT	7
EVEN WHEN IT WAS DECIDED, MEZEI RESTED ON WEAK AND HISTORICALLY UNFOUNDED REASONING	8
Before Mezei, Noncitizens Seeking Admission Were Entitled to Some Due Process	8
Mezei Wrongly Equated the Power to Exclude with the Power To Detain Indefinitely	13
THIS COURT’S SUBSEQUENT DECISIONS HAVE ERODED MEZEI AND CONFIRMED ITS PLACE AS AN ANOMALY IN THIS COURT’S DUE PROCESS JURISPRUDENCE	17
This Court’s Substantive Due Process Jurisprudence Has Eroded the Foundations on which Mezei Purported o Rest	18
This Court’s Subsequent Procedural Due Process Jurisprudence Has Similarly Undermined Mezei	23

This example, however, merges the introduction/statement of issues with the summary of argument. I think it is more useful to keep them distinct.

Introduction

The introduction identifies the points at issue in a way that is readily comprehensible after a single reading. It essentially amounts to an executive summary, identifying the precise points at issue, and places the essential concepts before the reader.

This is achieved by identifying how many distinct arguments you wish to make, and then turning each one into a statement of issues.

Beginning with a statement of the main issue(s) is preferable to merely stating the facts without putting them into the context of the disputed issues. A statement of the main issues should, however, contain enough facts to make it informative, as opposed to merely abstract.

In constructing a statement of issues a useful method is to put the statement in terms of a syllogism. Legal reasoning is an exercise in logic and the most rigorous form of logic is the syllogism. A positive argument expressed syllogistically consists of a major premise, for example, all humans are mortal. Followed by a minor premise – Socrates is human. Leading to the conclusion – Socrates is mortal.

In a legal context the major premise is the controlling rule. That is the rule that applies to a given scenario, either by statute or by virtue of binding authorities at common law. Often the major premise is self-evident and acknowledged by both sides.

For example in a criminal case, where there has been a substantial delay between the alleged offence and the point in time when the accused is advised of the existence of a formal investigation, the jury must be warned in considerable detail of the actual forensic difficulties faced by such an accused. This requirement is the major premise.

In this example, the minor premise might consist of the relevant sections of the summing up, where it is contended that the jury were not adequately directed of the disadvantages actually suffered by the accused. If the minor premise is made out, that would lead to an inevitable conclusion, in this example that the trial judge erred in law. It has been said that legal reasoning revolves mainly around the establishment of the minor premise. That, therefore, is a key objective when drafting written submissions.

In cases controlled by a governing statute, you might begin with the words of the text to establish the major premise, e.g. s 247 of the Workers’ Compensation and Injury Management Act 1981 (WA) providing as it does for an appeal only on a question of law. The minor premise might then state that the applicant has contended the arbitrator erred in finding Mr X to be a reliable witness. On the authorities that does not amount to a question of law. Conclusion: leave to appeal should be refused.

One of the examples referred to in ‘Making Your Case’ comes from a case considered by the Supreme Court of Louisiana in 1997: Rousseve v Jones. Rousseve paid five years of child support to his former wife Jones for their daughter ‘A’. Biological testing then established that A was not his daughter after all. Rousseve sought reimbursement of the five years of child support that he had paid.

His argument constructed as a syllogism ran as follows:

Major premise: under state law a husband who is not the father of his wife’s child is not obliged to pay support for that child.

Minor premise: blood tests have conclusively established that Rousseve is not A’s father.

Conclusion: Rousseve was not obliged to support A and is entitled to reimbursement.

Jones’ counter argument was expressed as follows:

Major premise: under state law a husband is presumed to be the father of his wife’s child unless he denies paternity within one year of the child’s birth.

Minor premise: Rousseve did not deny paternity within one year of A’s birth.

Conclusion: Rousseve was presumed to be the father of A for the relevant period of five years and not entitled therefore to reimbursement.

Jones’ argument prevailed. In essence because the major premise she identified operated as a qualifier to Rousseve’s major premise, rendering Rousseve’s minor premise immaterial. If her syllogism was converted into a statement of issues and placed at the commencement of her written submissions on her behalf it could read as follows:

‘Under state law, a husband is presumed to be the father of his wife’s child and must support the child unless he denies paternity within one year of the child’s birth. Rousseve did not deny paternity until five years after A’s birth. Was he obliged to support A until he proved that he was not her father?’

This is an example of what is called the deep-issue method, where the question posed subtly suggests the desired answer. The deep issue is presented as a syllogism with the major premise first, then the factual premise, preferably in chronological order, followed by a short, punchy question expressed interrogatively. It is not necessary, nor desirable, to attempt to condense the statement of issues into a single sentence. As a rule of thumb aim for about 75 words for each issue. Do not begin the statement of issues with ‘whether’ or any other interrogative word.

Determining the contents of a legal syllogism is a matter of finding a rule that is invoked by the facts of the case. The aim is to convince the judge that your syllogism is closer to the case’s ‘center of gravity’. You have to convincingly answer the question, ‘What is this legal problem mostly about?’ As the philosopher F.C.S. Schiller stated in Formal Logic: A Scientific and Social problem (MacMillan 2nd ed 1931):

‘To put an argument in syllogistic form is to strip it bare for logical inspection. We can then see where its weak points must lie, if it has any.’

You should endeavour to find the premise that pulls the court towards your conclusion and then make that premise explicit in your statement of the issue. Try not to overreach in this regard. The statement of the issue to be decided must be honest and fair. Don’t include irrelevancies and don’t colour the issue with loaded adjectives and argumentative propositions.

Try to find an explicit statement of your major premise in a governing or persuasive case. The more recent the better. It is often quite easy to find a governing case with a passage that says precisely what you want your major premise to be. When direct quotation is not possible, set out the major premise in your own words, supported by citation of the relevant case. That case must clearly hold to that precise effect. If the case you refer to is only close but not completely on point, say so. Then explain why the difference is inconsequential and should not affect the outcome.

Overall summary of your argument

This is a short version of the substance of the arguments that will be set out under each topic. Generally it should occupy one or two pages. This would be the last part of the written submissions that you draft.

Chronological statement of the relevant facts

A chronological statement of the relevant facts is distinctly preferable to a narrative which is a witness by witness account. To break up the narrative don’t begin sentence after sentence with dates, rather use phrases such as, ‘the next morning’ or ‘later that day’. You are not trying to compile details, you are attempting to select them knowledgeably. If a particular fact is not necessary to understand the issues or if it does not add human interest, omit it.

Whether the summary of argument section precedes the statement of the relevant facts or vice versa is a matter of individual preference and will vary from case to case.

The main body of the submissions

As you draft your argument write out the statement of issues and have it before you. Each aspect of the argument should be consistent with the statement of issues and should be no more extensive than is necessary to support it.

If three fundamental arguments arise, then there will be three parts in the main body or middle of your written submissions. You proceed from the strongest to the least strong. Organise each of the three parts to do four things. Firstly, set out the legal rule which is embedded in the issue statement (the major premise). Secondly, show how the factual points fit into this rule. Thirdly, deal with any obvious counterarguments. Fourthly, drive the point home with an additional reason or set of reasons.

In some cases if you fail to explicitly recognise the force of your opponent’s point you undermine your credibility. So, as you draft your submissions you should habitually consider whether your reader might reach a different conclusion to the one that you are urging. A well-constructed argument might run like this:

Conclusion to submissions

The conclusion should set out the relief that you seek, but should also be a true conclusion in the sense of one or two paragraphs convincingly encapsulating your winning syllogism in a fresh and vivid way. The analogy is a distance runner’s devastating sprint at the end of the race.

At the very least it should recapitulate your main points concisely. It flags the important findings from your submissions and singles out the central details you want your readers to recall.

Style

Use the same word to describe each key concept throughout your submissions. Use consistent wording for the same concept. Never use a word that the judge might have to look up!

Avoid Latin expressions unless no shorthand English equivalent exists, for example res ipsa loquiter. Don’t resort to legalese. Examples:

Legalese	Alternative
Such action	This action
Nexus	Link; connection
Instant case	This case
Pursuant	Under; by; in accordance with
In regard to	About; concerning

If your submissions repeatedly refer to one particular company and mentions no other company it is not necessary to specify parenthetically ‘the Company’. Use the parties’ names as opposed to ‘the plaintiff’ or ‘the respondent’.

Trying to cultivate a sense that you were talking directly to the reader, one intelligent being to another. Studies on readability indicate that the use of contractions such as ‘don’t’ rather than ‘do not’ can assist in this process.

Use italics instead of underlining. And minimise the use of italics for emphasis. You might try putting the ‘punch word’ at the end of a sentence to give it emphasis rather than using italics.

Use single-spacing rather than double-spacing and a single-space after a full stop.

Have a good usage guide to hand for example Fowler’s ‘A Dictionary of Modern English Usage’.

Sentence length and structure

Look for variety in the length of sentences, for example from three words to 35, but aim for an average length of about 20 words. It is not impermissible to begin sentences with And or But.

Omit needless words. In ‘Legal Writing in Plain English,’ Garner sets out at p 24 a sentence from a code of Federal regulations:

‘It is not necessary that an investment adviser’s compensation be paid directly by the person receiving investment advisory services, but only that the investment adviser receive compensation from some source for his or her services.’

That sentence at 35 words is not unusually long. Garner’s suggested re-write, nonetheless, reduces the length by two thirds without losing any meaning:

‘Although the investment adviser must be paid, the source of the payment does not matter.’

In looking to eliminate bloated phrases and replace them with normal expressions the word ‘of’ can be a clue.

Instead of	use
a sufficient number of	enough
during the course of	during

Focus on each ‘of’ to see whether it is to blame for a wordy construction by searching for ‘[space] of [space]’.

Try to put the subject (the actor) and the verb at or near the beginning of a sentence and don’t separate vital words. State related ideas in a similar grammatical form. For example, a list should contain only nouns or only verbs, not both. Rather than stating, ‘She was a law professor, environmental activist and wrote mystery novels’ you would change the final element to ‘writer of mystery novels.’

Vary the structure of your sentences so that they do not always start with ‘the’ or ‘this’ or always follow a subject-verb, subject-verb structure.

Use the active not the passive tense. It promotes brevity. It better reflects a chronological sequence. It makes the reader’s task easier and makes the prose more vigorous and lively. The exception is where the actor cannot be identified or is relatively unimportant. Spotting the passive is made easier if you apply the rule that a ‘be’ verb such as ‘is’, ‘are’, ‘was’ or ‘were’ followed by a past tense verb is a passive-voice construction, for example ‘is dismissed’ or ‘be sanctioned’.

Use strong, precise action verbs as opposed to ‘be’ verbs. So, ‘Jones is in agreement with Smith’ becomes ‘Jones agreed with Smith.’ ‘The professional fees in this project are entirely dependent upon the planning techniques that the client is in favour of implementing’ becomes ‘the professional fees depend entirely upon the planning techniques that the client wishes to implement.’

Abstract nouns can also detract from the sentence’s strength. Avoid using words that end in – ion unless you need to refer to, for example, mediation or negotiation as a procedure. To achieve this change phrases such as ‘make accommodation for’ to ‘accommodate’. Or write ‘examine’ as opposed to ‘conduct an examination of.’

Turning sentences from passive to active requires choosing the right subject. ‘There was first a review of the transformation of the market for mouthwash’ should read, ‘First, the department reviewed the transformation of the market for mouthwash.’ The replacement eliminates ‘there was’. ‘Review’ doesn’t end in ‘ion’ but it is a nominalisation because it can be turned into a verb. The verb is non active. So, the key is to find an appropriate actor, a person or group of people capable of making something happen. This sentence can in fact be improved further – ‘First, the department reviewed how companies had drastically changed the market for mouthwash.’

Actors are individuals (she), groups (researchers) capable of action or effecting a change. They perform actions that have results and are the strongest candidates for subjects. Avoid isolated pronouns such as ‘this’, ‘that’, ‘these’, ‘it’ and ‘those’ as subjects unless paired with a noun, e.g. ‘this tactic seems like a mistake’ rather than ‘this seems a mistake.’ Avoid starting sentences with ‘there is’ or ‘there are’. So, instead of ‘there are three ways we can think of this’ use ‘we can think of this dilemma in three ways’.

Place the subject close to the beginning of the sentence, no more than five or six words in. Keep the verb as close as possible to the subject. Then provide the details. Keep the subject consistent from sentence to sentence.

If you are using a list, place the item with the least number of words and syntactic complexity first and the most complex last. Keep a list of items within a sentence to a maximum of five.

Bullet points are the best way to highlight important items in a list. If your bullet items consist of full sentences, capitalise the first word and use a full stop at the end of each point. If the list is of phrases or clauses, use a semi-colon at the end of each point, an ‘and’ or an ‘or’ after the last semi-colon and a full stop after the last point.

Keep a list of bullet points to a maximum of seven.

End sentences emphatically so that the final word or phrase in a sentence has a special kick. With virtually any sentence you have a conscious choice about what you want to stress.

Avoid negatives and redundant pairs

Use positive not negative statements and in particular avoid double negatives. Any negative in a sentence implies ‘what is’ by telling the reader ‘what isn’t’.

Instead of	use
did not	failed to
not the same	different
does not have	lacks

Remove redundant pairs such as ‘first and foremost’. If you spot one, remove ‘and’ as well as the offending first or second word. Similarly, in redundant modifiers one term implies the other rather than repeats it. It is therefore unnecessary, for example, ‘split apart’, ‘final outcome’ or ‘evidently clear’.

Citations and Footnotes

Although minds differ, I agree with Garner’s view that you should only mention the case in the body of your submissions with the citation in a footnote. If you do use footnotes, ensure that you do not relegate anything of importance to a footnote.

Your reasoning in support of the premise you advance is almost always more clearly and forcefully expressed in your own words than stringing together a number of quotations from various cases. Quotations from cases are effective only if used sparingly. Difficult as it is, you should be especially loath to use a lengthy indented quotation. The better course is to either weave quotations deftly into the fabric of your writing or paraphrase the particular quotation. If you do use a series of quotations it is essential to use connectives to take your reader from one quotation to the next.

Do not cite multiple authorities for a particular proposition. If the point you are making is relevant to your reasoning but is relatively uncontroversial, the most recent citation suffices. If the point is central and is controversial, it is desirable to concisely describe the facts of the particular case you are relying upon and its holding.

Avoid saying ‘the court stated as follows’, followed by a lengthy slab of quotation. Instead state an assertive proposition and then let the quotation support what you have said.

Structure of paragraphs

Think of the paragraph, as opposed to the sentence, as the basic unit of thought.

Try to vary the length of your paragraphs but generally keep them relatively short, perhaps aiming for an average of no more than 150 words, ideally 100, in three to eight sentences. No less than three. Move to a new paragraph when you are moving to a new sub-point and wish to signal a change of topic.

Garner suggests opening each paragraph with a sentence that announces what the paragraph is about, with the other sentences playing supporting roles. You generally don’t introduce a citation in the topic sentence. A reader should be able to get most of the story from skimming the topic sentences.

Yellowlees prefers beginning each paragraph with a set of comprehensive overview sentences as opposed to a single topic sentence. What might be described as the paragraph head. The paragraph head promises. The body delivers. This approach involves keeping the head about a third and the body two thirds. Don’t introduce a topic in the body that you haven’t referred to in the head.

This approach obviously results in longer paragraphs.

Front-loading important information in this way is a blue print that aids predictability and hence grasp and recall.

Your thesis is a one-sentence summary of what your submissions cover. Make it your clearest sentence. Put it at the end of the head paragraphs. This could well be the most important sentence of the submissions.

Place the most important information at the end of a sentence or paragraph.

Transitions/pointing words

In addition to announcing the subject, the first sentence of the paragraph should contain a transitional word or phrase that assists the reader to make his/her way from one paragraph to the next. The reader should be able to see whether, for example, the new paragraph amplifies what has just been set out in a preceding paragraph or contrasts with it. This can be achieved by ‘pointing words’ such as ‘this’, ‘that’ ‘these’, ‘those’ or ‘the’. Pointing words refer directly to something already mentioned. So if a particular address has been referred to, the phrase ‘that property’ provides a clear connection.

A smooth transition can be achieved by words or phrases which echo a previously mentioned idea. Or it can be achieved by explicit connectives, that is words whose chief purpose is to supply transitions such as ‘but’, ‘latterly’, ‘also’, ‘further’, ‘therefore’ and ‘yet’. Use transitions every two or three sentences at the beginning of the sentence before the subject or the verb.

Transitions fall into the following categories (with examples):

• Continuity: (adds a point to that which has gone before) – ‘also’, ‘in addition’ or ‘moreover’.
• Example: ‘for instance’, ‘for example’ or ‘likewise’.
• Contrast or exception: ‘however’, ‘on the other hand’ or ‘nonetheless’.
• Comparing: ‘similarly’, ‘likewise’, ‘in the same way’.
• Restating: ‘in other words’, ‘in short’, ‘put differently’.
• Cause: ‘because’, ‘since’ or ‘when’.
• Result: ‘so’, ‘as a result’, or ‘accordingly’.
• Conceding or qualifying: ‘admittedly’, ‘granted’ or ‘while it might be argued that’.
• Amplification or when pressing a point: ‘even so’, ‘as a matter of fact’, or ‘of course’.
• Explaining a sentence: ‘that is’, ‘meanwhile’ or ‘previously’.
• Conclusion or when summing up: ‘to summarise’, ‘in conclusion’ or ‘consequently’.
• When sequencing ideas: ‘first’, ‘second’ and ‘third’ or most importantly’.
• Frequency: ‘afterward’, ‘eventually’, ‘meanwhile.’

If you note the absence of bridging words in a piece of work, it suggests some discontinuities in the text so that you are not writing with an unbroken train of thought.

In addition to transitions you also achieve continuity by introducing material that you have already put before the reader at the start of a sentence before moving onto new ground. You don’t have to use exactly the same words but the sequence is familiar – unfamiliar – familiar. Use more sparingly than transitions.

In addition to captioned headings, the use of signposts in the body of the paragraph assists the reader. You could say, for example, ‘the arbitrator’s reasoning was flawed’ followed by long paragraph, introduced by ‘in the first place….’. It would be preferable to say that ‘the arbitrator’s reasoning was flawed for three reasons’, set out a bulleted list and then embark upon a full explanation.

Introduce a conclusion sentence which tells the reader what to take away from the paragraph they have just read. Repetition aids in the opening argument.

Final editing

I always find it preferable to edit from a hard paper copy as opposed to viewing the document on a computer screen. Once you are satisfied from a number of read-throughs that all typographical errors have been eradicated and all citations are accurate, the penultimate read through is devoted solely to compression. Difficult as it sometimes can be to sacrifice much loved passages, often the product of a great deal of work, you must be ruthless in eliminating superfluous words or sections. Every word that is not a help is a hindrance because it distracts. Justice Scalia considered that a judge who realises that the submissions are wordy will skim it; one who finds it terse and concise will read every word. In a similar way the final read-through is an exploration of whether any aspects can be expressed more vividly or crisply.

Editing checklist:

• Cut or reword unnecessary legalisms;
• convert ‘be’ verbs into stronger verbs;
• convert the passive voice into active unless good reason not to;
• change ‘ion’ words into verbs when you can;
• do a search for ‘of’ to see if it is propping up a wordy construction;
• check the misused words and faulty punctuation;
• see if you can cut each sentence by 25%;
• read aloud stressing the final word or phrase in each sentence to see it reads naturally.

Further editing checklist:

• Does the central point emerge clearly and quickly?
• Is there a strong counterargument that you have not adequately addressed?
• Is there an obvious bridge at the outset of each paragraph?
• Is there an informative lead in before each block quotation?
• Can you inject more drama into your points so as to phrase them more memorably?
• Are there sections that can be converted into bullet points?
• Have you properly utilised footnotes for citations?
• Have you used real names for parties?