Submissions of Law
| Author | Peter Lyons |
| Pages | 201-221 |
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14 Submissions of Law
A submission of law is the advocate’s opportunity to invite a decision-maker to apply the law to the facts in a way which will suit the advocate’s client.
Sometimes a submission of law will form part of an address. At other times counsel may wish to make a submission of law or be invited to do so when a problem arises.
Rarely is there a submission of pure law, because courts are reluctant to hand down advisory opinions. A judgment or ruling is usually rooted in the particular facts of the case or the problem at issue.
A court or tribunal will be assisted by an advocate who has considered the problem thoroughly, sorted out the good points from the bad and comprehensively read and understood all the relevant decisions and legislation.
A decision-maker is paid to make the right decision. That cannot always be possible but in making a decision of any kind the court or tribunal is entitled to rely on the advocate’s assistance. Submissions of law have the unique ethical characteristic that the advocate is obliged to inform the court of all relevant authorities and legislation even if on their face they go against his client’s case.
1 Preparation
1.1 Know the court and its powers
There is no point in asking a court to do something which it is not empowered to do. A thorough knowledge of the hierarchy of the courts and the doctrine of precedent is fundamental. You cannot ask a court to ignore a decision which is binding upon it. You may ask the court to distinguish the facts, but it is futile and stupid to ask a judge to do something which a higher court has specifically forbidden her from doing.
It is equally wrong to submit that an appeal court is bound to follow the approach of the single judge below.
So when you are preparing your submissions, begin by asking yourself what court you will be appearing in and what its powers are.
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1.2 Know the facts
You should master the facts of the case. You should know both sides; what has been agreed between the parties; what has been proved; and the findings that were made.
The irony is that the higher you climb in the court hierarchy the more important the facts become. Appeal Court judges are proficient in the law. They have probably encountered that provision or that principle before. They want to know what it is about your facts that makes your case so special.
You must be deadly accurate about the facts. Don’t mis-state them or it will colour your whole submission. Make sure your opponent also states the facts correctly.
1.3 Know the law
Obviously, because you are making submissions of law you must give the court confidence that you know of which you speak.
This involves a thorough review of legislation and its history and the way, if any, other courts have interpreted it.
Become very familiar with the permissible forms of statutory interpretation in your jurisdiction.
If it is important, consult a dictionary about the meaning of contentious words.
Read every relevant case thoroughly, including any dissenting judgments. Study how judges in other jurisdictions have approached the problem. But most of all, take care to see what the judge or judges you are appearing before have said on the subject in the past.
1.4 Cite authorities properly
Find out how cases are referred to in your jurisdiction. In some countries, it jars when counsel refers to Smith v Jones and pronounces the ‘v’ or says ‘versus’ instead of ‘and’.
It grates when the advocate submits that a single judgment from the court below is binding or, for no good reason other than that it helps counsel’s case, the advocate refers to a dissenting judgment at length.
You must know where the court you are addressing stands in the hierarchy and what powers it has.
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You must also be aware of what the Official Law Reports are (e.g. in England: AC, QB, Ch, Fam) and in what circumstances you may refer to an unreported judgment.1
When on your feet you should refer to ‘Appeal Cases’, ‘the Weekly Law Reports’ or ‘Mr Justice Bell’, rather than using abbreviations such as ‘AC’, ‘WLR’ or ‘Bell J’.
Make sure the court and your opponent have a full and legible copy of the cases and legislation to which you will refer.
Stick to what is relevant and that which will assist the court. Don’t dismay the decision-maker with a large slab of vaguely relevant authorities. Clear the path for the court and make the judge’s job easier.2
1.5 Know where your documents are
Be well organised. Make sure you have identified and have within easy reach every document or authority to which you will refer or about which the court might ask.
Finding it quickly makes the judge feel you are on top of things and gives the court confidence in you.
The best advocates are also the most organised.
1.6 Anticipate your opponent’s arguments
In preparing for the submission ask yourself two questions:
1 What is your opponent likely to say?
2 What would you say if you were in your opponent’s shoes?
Unless it is obvious that your opponent must submit something which you intend to counter, don’t make your opponent’s submission for him, for he might not have thought of it, and you will be tipping him off.
1.7 Anticipate what the court might ask
Look at the problem carefully. What would you ask if you were the judge? What areas would trouble you? What would you be reluctant to do? By
1See Practice Direction: Citation of Authorities (2012), Lord Chief Justice of
England and Wales.
2For written submissions you will be assisted by Oscola: Oxford University Standard for the Citation of Legal Authorities, https://www.law.ox.ac.uk/oscola.
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the same token, what would make you comfortable? What would help you do what counsel is asking you to do?
If there is more than one judge or arbitrator on the panel, your problem as the advocate may be compounded. There could be a disagreement. The main point is that you should anticipate any questions and have a reasonable and sensible answer ready.
2 Structure
Courts are assisted by an attractive and persuasive structure. But submissions of law should not be constructed like a thriller novel. Judges don’t want your answer skilfully disguised and only to be revealed at the end.
Look at the rules for skeleton arguments. Most courts these days like or even demand a skeleton argument. Use them effectively.3
Remember that three points are better than five, and one point is better than three. As Sir Patrick Hastings pointed out, most cases revolve around one main point. It’s up to you to find it.
3 Argument dilution
This is a fascinating concept which is counter-intuitive. As human beings we think that the more points we have in favour of our argument, the more it is strengthened.
Let’s say, someone has upset you. You’ll be in the shower and you’ll think. ‘That’s another thing she’s done. That’s 17 things she’s done wrong!’ And then you will confront her with all of them at once. It never works out well.
In fact, the more points you have in favour of your argument, the more you dilute it.
Good advocates stick to one, two or three points. They don’t come up with 17. It undermines their credibility if they do.
Murray Gleeson QC, who became Chief Justice of the High Court of Australia, said, ‘Never be afraid to give away a bad argument. I don’t believe in trying to run every possible argument. It detracts from the strength of your good points.’4
3See Chapter 7, ‘Skeleton Arguments’.
4Michael Pelly, Murray Gleeson – The Smiler (Federation Press, Sydney, 2014).
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I remember appearing with an advocate who insisted on coming up with, on average, 20 grounds of appeal. When he did win, there was only one successful ground.
As he began, the judges would say to him, ‘But surely, grounds two to 20 have nothing in them?’
‘On the contrary’, he would always reply. It was not good advocacy. It seriously undermined his credibility.
I am not saying you should only have one ground, because sometimes cases are won on the unsuspected ground which appeals to the judges. Just make sure that the grounds you submit are properly arguable.
As Philip Larkin wrote in Dockery and Son:
‘Why did he think adding meant increase?
‘To me it was dilution.’5
4 Know what order the court should make
You should always aim to find a reasonable solution to the problem. The court is never going to be persuaded to do something unreasonable, unjust or wrong in law. Your submissions should steer the court to making the right order which, hopefully for you, should win it for your client.
Have a draft order ready. It’s not presumptuous. It’s good advocacy.
It follows that you should know how to achieve the result you want. Make the task easy for the decision-maker.
5 Method
5.1 The psychology of a judge
The Hon William Rehnquist, former Chief Justice of the Supreme Court of the United States, was a plain-speaking man. He said the advocates who annoyed him most were those who thought he knew more than they did. To him, the advocate had been working on the case for a long time to get it to the Supreme Court. He should know it backwards.
5Philip Larkin, Whitsun Weddings (Faber & Faber, London, 1964) 37.
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In effect, Justice Rehnquist was saying, ‘I have six cases in my list today and I’m not excited about any of them. You’ve got to get me excited about yours.’6
As Justice Laskin7argued in his paper, the judge is thinking of two things when you get to your feet:
1 Can you help me?; and
2 How fast?
He put it another way, ‘Are you someone we think can find a sensible, workable solution to the real-life problem we must resolve?’
5.2 Point-first advocacy
The...
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