Duhaime Lloyd Written Submissions the Art of It

Regardless as to how and when the legal arrangement evolves and becomes simpler for lay litigants, and even if this futuristic scenario reduces the role of lawyers, there will be one thing that hopefully volition continue to be an fine art non lost only however good not only past those who bill-out at hundreds of dollars an hour, just also by the lay litigant. A writer's art, the art of writing one'due south legal arguments to the courtroom of police for the convenience of that court.

At that place are many names given to this document such equally written submissions, factum and brief. Factum is a name usually given to a formal document which has to be submitted to the court in accord used with a specified class, and more often than not used on an appeal. The term brief is as well used to describe a legal opinion exchange not necessarily for the courtroom only even between lawyers.

Written submissions are also very helpful in trials but this article is focused on what lawyers called chambers hearings or hearings -  chambers which means that in that location are no witnesses called to bear witness in the witness stand and instead, the evidence is entirely given past affidavit.

Traditionally, there are two ways to make submissions either by spoken word (oral submissions) or in the form of a certificate (written submissions). This is in regards to the latter although it may be of some assist in organizing the former.

The Purpose of Written Submissions

In theory, written submissions are always welcome by the courtroom:

"Preferring written submissions may well speed up the chambers hearing as the master or justice demand not play stenographer, making notes, and the very deed of creating written submissions oft assist in focusing issues or conclusion".¹

Justice Laskin of the interior Court of Appeal in reference to a factum but still, another form of written submissions, wrote:

"The factum is the only sure road to the judge'southward heart and mind before the hearing."

One lawyer fifty-fifty proposes that: "… the most important part of any chambers application is to ensure that y'all have … written submissions available to hand up to the court and … opposing counsel."^two

On most any application which is lengthy or not routine, good lawyers show up with written submissions.

One of the many adept reasons for this is that no guess is an expert in all areas of the constabulary (and the same can exist said of lawyers). The written submissions gives the judge an opportunity to apprise her/himself before the hearing of the law since the law is an important component of the written submissions.

Ameliorate yet, written submissions have the potential of getting the judge, at the hearing:

"... to go right to those of the swing bug yous have identified and indicate where he/she needs aid from counsel…. The written (submissions) permits the judge to think about the matter before oral argument and asked focused questions."^three

The best full general communication that tin be proffered in terms of preparation of the written submissions is to imagine yourself writing the last conclusion for the approximate in favor of your client.

Content of Written Submissions

In the how-to-be-a-good-lawyer material of every bar association in every jurisdiction, there is bound to be something, usually written past a judge, of what it believed to be the perfect content of written submissions. What follows is gleaned from several of those sources:

Introduction

Beginning off with a general description of the action: context before detail here.

"Tell your story in human terms.... Appeal to the human being in the judge. Forget the legal jargon. Pretend the judge is just your well-informed next door neighbour. Engage the judge, capture the essence of what the case is all about.... In other words, solicit the estimate's amore for your cause."⁴

What is a lawsuit well-nigh? If information technology is a lawsuit well-nigh a motor vehicle accident, say so. You should also summarize your client's instance with reference to the specific relief you are seeking from the court. This is often sometimes besides referred to as the remedy you are seeking.

The Facts

Summarize the facts that are prepare out in the affirmation material. The preferred way to practise this is to set the facts out chronologically but do not just cutting and paste from the affidavits. Judges do appreciate footnotes or such other references which can direct them direct to the affidavit material you are relying on in your summary of the facts.

What you are trying to accomplish in the "facts" component of written submissions is a summary of all the important facts from your client's position hopefully making it unnecessary for the judge asked to read the affidavits - hence the critical necessity of proper referencing.

The Issues

Place the problems that are before the court; the unresolved questions that form the core of the dispute. Most judges and lawyers will tell you lot that this usually comes downwards to two or 3 bug, maximum.

The Police

Summarize the applicable police peculiarly that upon which you lot intend to rely on - both statute law and cases. In this part, you will also desire to refer to the legal cases that you lot will be relying on and for that, you lot will want to employ the proper and right legal commendation.

Argument/Analysis

The heart of the written submissions is the argument or analysis department; the proposed wedlock of facts and law in which, as you suggest to the court, your remedy should flow. Speak to the law that applies, the facts that are essential and your conclusion.

Points of Detail

It is common courtesy to provide a copy of your written submission to the other side or to their lawyer if they have a lawyer, in accelerate of the hearing. Speaking from personal experience, this is routinely overlooked and many lawyers evidence up in court and hand their written submissions to the other lawyers literally when they stand up on their anxiety. Zippo is served past this but I have still to observe a guess willing to back up any criticism of this terminal-minute nonsense so from experience, it would appear that nada is gained by complaining most it even though information technology ought not to happen.

The Writing

The soul of written submissions is in the writing. Keep it uncomplicated and do not overstate things. Call back the goal is to persuade.

"What should be remembered throughout the training of these (written) submission is that you are marketing to the court your customer's point of view or position. Thus you are in issue "selling" your client's position to the courtroom."^five

Do not brand the written submissions too long. Several pages should do it except for the occasional circuitous case which might take over x.

Touché par la grace

Sitting downwards and preparing written submissions tin often be a challenging chore even for the most seasoned of lawyers when in many cases, are only plain sick and fed upwards of being preoccupied with the file and merely want to get the hearing over and done with. And yet, with this exercise of written submissions, in that location are obliged to reopen their chambers book a week before the hearing and embark upon this essential task. It is a good affair in any consequence as it will give them an agenda to follow at the hearing.

Simply essential chore it is and whether you are a lawyer or a self-represented party, if y'all're lucky, skillful or experienced, your written submissions will take that final feature of flow. Written submissions which flow attract and keep the attention of the approximate from kickoff to terminate.

An interested approximate will e'er await forwards to written submissions and if you lot are actualization in court especially in chambers, and unless it is a simple routine matter, y'all volition want to hope and pray that whatever writing magic y'all have, comes out during those hours between you with your keyboard in your law firm office, as you are writing your written submissions.

Been There, Done That

In endmost, an embrassing reality at this point in time is that some judges do not read the written submissions. They rely entirely on the lawyer or the litigant to explain their case verbally at the hearing and experience that the written submissions must exist redundant because if there is something they needed to hear, the point would have been made to them verbally. This, of grade, defeats the whole purpose of written submissions and can significantly compromise justice because as litigants and lawyers make time estimates, they are entitled to presume that the court will read the affirmation show and the written submissions. As time runs out in the courtroom, at that place is a disturbing refrain that can be heard from time to time and information technology usually starts with the ominous words "do y'all look me to read all of the...."

In fact, I have just come up out of a case where, from some of the comments made in judgment, it seems almost impossible that the affirmation evidence was advisedly read by the hearing approximate.

T hese events are hard to explain and certainly impossible to justify but self-represented litigants and lawyers needs to exist alive to the risk.

Still, even in this regrettable circumstance, practiced written submissions volition only ever do good because if null else, even if pressed for time, the written submissions will serve as an calendar for the verbal presentation.

REFERENCES:

• Cromwell, Thomas, Preparation of Factums (Aurora, Ontario: Canada Police force Book, 1996)
• Laskin, John, justice of the Ontario Court of Appeal, Forget The Current of air-upwardly and Make the Pitch: Some Suggestions For Writing More Persuasive Factums (2011)
• Note 1: Shields, John, Chambers Practice 2013 (Vancouver: Continuing Legal Education Society, 2013), folio 1.one.v.
• NOTE two: Urquhart, Glenn, Mastering Civil Chambers, originally published in 1997 but appendixed to Shields, Chambers Do 2013 , op. cit.
• Notation 3: Scherman, Mr. Justice Brian, Court of Queen's Bench of Saskatchewan, Advocacy On Chambers Applications (Saskatoon: Saskatchewan Legal Education Society Inc., 2012).
• Note 4: Laskin, op. cit.
• NOTE five: Urquhart., One thousand., op. cit.

Published: Thursday, September five, 2013
Final updated: Saturday, September 28, 2013
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Source: https://www.duhaime.org/Legal-Resources/Civil-Litigation/ID/1583/PageID/1194/Written-Submissions--The-Art-of-It