FORGET THE WIND UP AND MAKE THE PITCH:
SOME SUGGESTIONS FOR WRITING MORE
PERSUASIVE FACTUMS
John I. Laskin, J.A.
Introduction
When I began practising law, written advocacy, the factum,
was far less important than it is now. Most counsel did not
write their own factums. Several did not even read what their
juniors or students had written for them.
Although I believe that we still maintain a strong tradition
of oral advocacy in Ontario, you can no longer treat your factum
as casually as the bar did a quarter of a century ago. When I
practised I worked pretty hard on my own factums. Now that I am
on the other side I can say that if I knew then what I know now,
I would have worked even harder.
In our court the factum is often far more important than the
oral argument. The reasons are not hard to discern:
• our workload is heavy; to reduce our inventory we have been
“overbooking” on both the civil and criminal side and are
routinely hearing 3 or 4 appeals a day;
• we have limited counsel's time for oral argument;
• only a few members of the court routinely take pre-hearing
bench memoranda so the factum is the only sure route to the
judge's heart and mind before the hearing;
• we decide about 85%-90% of our cases right after argument,
by endorsement or by a short judgment.
Before the appeal is heard, you can be sure that each member
of the panel will have read the reasons for judgment or the
charge to the jury, the appellant's factum and the respondent's
factum. We all would like to read more and, in many appeals we
do, but, in truth, we don't always have the time to read more
than the reasons or charge and the factums. Judges cannot help
but form an initial impression of your case from your factum.
The factum, as former Chief Justice Dubin put it, "whets the
appetite of the judge". But often the factum does more than
that. The factum may leave the judge not just with an initial
impression of your appeal, but a lasting impression.
In our court we do not have a formal pre-hearing conference
to discuss an upcoming appeal. But informal chit-chat is
inevitable, so a good or bad factum can take even firmer hold
with the panel.
You can overcome a bad factum with good oral argument, but
doing so is an uphill struggle. If you write a good factum, you
have a great advantage and you will enhance your own credibility
with the court. Judges like to gossip. We remember the good-
factum writers and even come to recognize their styles. In the
March 1990 issue of The Advocates' Society Journal, the late
Justice John Sopinka wrote that in his opinion the quality of
advocacy makes a difference to the outcome of 25% of appeals in
our court. If that is true, and I think it is, the factum is a
large part of that 25%.
In this paper I offer some suggestions that I hope might
improve the clarity and persuasiveness of your factums. These
are not inflexible rules; they are just my suggestions. If
something else works better for you, then use it.
My theme is readability and my focus is on the reader. When
we write we sometimes forget about the reader. To persuade you
have to consider your reader, your audience. When I write
reasons, I try to think of my well-informed next door neighbour
reading my reasons. My neighbour is my audience. The advocate’s
audience is more limited - opposing counsel and, of course, the
judge whom the advocate must persuade.
I firmly believe that though what we say is obviously
important, so too is how we say it. You cannot divorce content
from language and style. Dull, dense, difficult to read prose
will detract from what otherwise may be a strong legal point.
Writing well is hard work - at least it is hard work for me.
Legal writing is difficult because what we write about usually is
complicated. And we all have time constraints - too much to do
and too little time to do it in. Writing concisely is harder
than writing at length. But taking the time and trouble to write
better will make you a much better advocate for your clients and
will enhance your reputation with the court.
Here are my suggestions, which I have organized around a
number of themes.
1. What Is This Appeal All About And What Is The Court Likely
To Do With It?
Here I want to make three points, each of which should
influence how you write your factum. First, before you write a
single word put yourself in the position of your reader, the
judge. This is what the great John Davis of the New York Bar
called "the cardinal rule" of advocacy. In your imagination,
trade places with the judge. You are immersed in the case, the
judge knows nothing of it. What is this appeal all about? What
is the key issue on which the appeal turns? Identify and frame
this key issue, the issue that will control the outcome of the
appeal. Then think about the story that you are going to tell
around this key issue. How would you want this story told? What
approach will help the court reach the best solution?
Second, appeals generally fall into one of two categories:
error correcting or jurisprudential. Decide into which category
your appeal falls. Most appeals are simple error-correcting
appeals. Do not make the mistake of trying to turn your
error-correcting appeal into the next Donoghue v. Stevenson. We
have far too much work to do to write a treatise on every case
and generally we do not like opining on more than we have to in
order to decide the appeal.
If your appeal is an error-correcting appeal, we will likely
decide the appeal by an endorsement. Give us a simple factual or
legal basis for your position; do not try to make new law. If
you have provided a simple, clear route to the desired result,
part of your factum will likely find its way into our
endorsement. If the appeal is jurisprudential, then you have to
write your factum, especially the law section, differently. You
should address social policy or administration of justice
concerns, and you should consider the implications of your
position for related areas of the law. In other words, you should
think, read and write “around the problem.”
If your appeal calls on the court to interpret legislation,
we need to understand the legislative scheme, how it works, the
rationale for the statutory provisions in question. We don't
often get this, even from government lawyers, and we frequently
wish we could phone the regulator for a better understanding of
the statute.
The third point you should consider is whether we are likely
to reserve. If you think we are going to reserve, your factum
should be more detailed. I often make heavy use of a good factum
in writing reasons. But remember the statistics: only about 10%-
15% of our decisions are reserved judgments with full reasons.
If the trial judge has written careful or detailed reasons
and we are going to reverse, we will likely reserve and write our
own reasons. Otherwise, most error-correcting appeals are dealt
with by endorsement. Jurisprudential appeals are usually
reserved.
2. The Overview Statement
Jim Raymond, an English professor at Alabama, is the head of
the judgment-writing course for federally appointed judges in
Canada. He is also the co-author of an excellent book on good
legal writing called "Clear Understandings"1. The subject of
Professor Raymond's lecture at our judgment writing school is:
"The First Page Says It All". Whether you are writing a factum
or a judicial opinion, Raymond recommends that you begin with an
overview statement, which tells the reader what the case is
about, who did what to whom, the issues and your position on
them — all in no more than a page. Raymond's view reflects a
fundamental principle of persuasive factum writing: put context
before details. The principle of context before details is also
an important theme in a superb book on good legal writing,
Thinking Like a Writer: A Lawyer’s Guide to Effective Writing
and Editing, by Stephen Armstrong and Timothy Terrell.
The overview statement has been used for several years by
all good counsel arguing criminal appeals in our court, even
though it is not required by the criminal appeal rules. The
criminal bar has simply adopted the overview statement as a
technique of good written advocacy.
Effective January 4, 1999, the Rules Committee amended the
factum rules for civil appeals to our court to require an
overview statement in Part II of the appellant’s factum and in
Part I of the respondent’s factum.
Although the overview statement is now mandatory, you need
to know why it is important. The overview statement is
important because it provides a road map for the rest of your
factum. It gives the judge the context for your appeal, and
with the context the judge can better absorb and understand the
details to follow. I consider the overview statement the most
important part of the factum.
I have these suggestions for writing effective overview
statements:
(i) In the overview statement you must begin
persuading the court of the rightness of your
client’s cause. Tell your story in human terms,
that is, 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 and communicate the justness of
your position. In other words, solicit the
judge’s affection for your cause.
(ii) State the key issue or issues on which the appeal
turns in your overview statement but be careful
not to state the issue or issues too broadly. If
you state an issue too broadly, then your factum
will be too long because the amount of detail is
tied to how narrowly or broadly you state the
issue. Worse, we judges will not know what to look
for, what facts are crucial and what facts
are background. For example, if you are attacking
a municipal by-law, stating the issue as the
validity of the by-law is too broad. Better to say
that the issue is whether the by-law is invalid
because it was passed in bad faith.
(iii) The overview statement should contain just enough
facts to give context to the key issue and to
preview what is to come. Most counsel do not give
enough facts in their overview statements. You
should front-load but not overload your overview.
3. Point First Writing
Of all of my suggestions, I consider point-first writing
the most important. Point first writing, more than anything
else, will improve the clarity and persuasive of your writing.
The best discussion of point-first writing that I have read is
in a book by Joseph Williams, a professor of English at the
University of Chicago, called Style:Toward Clarity and Grace2.
Style has strongly influenced my writing.
Williams delivers the following message: state your point
or proposition before you develop or discuss it. Do not write
your factum like a mystery novel in which the conclusion is
revealed only in the final paragraph, if at all. In other words,
give the context before discussing the details. Indeed, point
first writing puts into practice the principle of context
before details. Point first writing should be used throughout
your factum, both in the facts part and in the law part, and
within those parts, in every section and in every paragraph.
Whenever you are about to dump detail on the reader, give the
reader the point of the detail first.
We see far too many factums that contain long meandering
paragraphs, in which the point of each paragraph is never stated,
or almost as bad, is stated three paragraphs later. This is not
reader-friendly advocacy. You can fix this problem in these
ways. At the beginning of the paragraph, tell the reader what
topic or idea you are going to discuss in the rest of the
paragraph. Try to restrict each paragraph to one main idea or
topic. Then, in the first sentence or two of each paragraph,
articulate the point of the paragraph, usually your conclusion or
submission on the issue. The remainder of the paragraph will
discuss the submission, elaborate on it, support it, or qualify
it. This is point first writing.
Unfortunately, too many factums contain either point last
writing or no-point- at-all-writing. Lawyers seem to resist
giving their conclusion upfront. They think that readers need to
understand how the argument develops, or that readers will not
appreciate their point until they are familiar with the relevant
facts or that an anticipated conclusion will make the ultimate
conclusion repetitive. As valid as these concerns may be, they
do not outweigh the desirability of point first writing. We
absorb and remember information best when we know why it is
important and how it is relevant. If we are forced to read a lot
of details before we know why they matter we will skim and skip.
Practise point first writing. The persuasiveness of your
factums will increase immeasurably.
Another way to practise point first writing is to use
markers or signals. Tell the reader what is coming next by using
headings to separate each issue. Headings are helpful to the
court because they give structure or road maps to your factum.
They keep the judge on track and emphasize the order and
organization of your factum. Most good counsel are now using
headings. When you write a heading try using rhetorical language
instead of neutral language. Instead of writing "First issue:
whether there was a fiduciary relationship", try instead: "First
issue: the trial judge erred in finding a fiduciary
relationship". The latter formulation is more persuasive.
4. White Space
The visual impact of your factum plays an important role in
its persuasiveness. Most lawyers cram far too much onto each
page of their factum, no doubt to meet our court’s 30-page rule.
But we will not thank you when we are up late at night reading a
dense 30-page single spaced factum with no margins. I suggest
you ensure that the pages of your factum have enough white
space. Generous margins, double-spacing, headings, and lists or
tabulations will all improve the visual impact of your factum.
These devices will give the appearance of a less-dense document
and show that you care about the reader.
5. The Importance Of The Facts
My view of good advocacy reduces to two simple
propositions: first, tell the court why your client should
win — capture, in the words of one of my colleagues, the
"moral highground" – then, tell the court how to get there.
The first proposition turns on how you present the facts;
the second, on how you present the law.
We are powerfully influenced by the equities of the
case, by the needs of real people. If we have to, we will bend
the law to reach a fair result. Most cases are decided on the
judge's view of the facts — certainly, in our court, and even in
the Supreme Court of Canada.
Because we want to do justice between litigants, we are
far less interested than you might think in great pronouncements
of law or highly-legalistic arguments. If the facts have been
persuasively presented, then the law section of the factum should
show a simple legal basis for getting to the desired result.
The facts, in my opinion, are the hardest part of the factum to
write and the part of the factum where we need the most help. We
know something about the law. We are far more dependent on
counsel to outline the relevant facts.
In the facts section of the factum, counsel must tell a
story. Story-telling is persuasive. But counsel must carefully
consider what story to tell and how to tell it. You have to tell
a story that shows the justice and logic of your position, that
persuades the court of the rightness of your client’s cause.
Lawyers like to tell stories chronologically. This is not always
the best method. I suggest that you tell your story, your facts,
around a theme that corresponds to the key issue (or issues) in
the appeal. You have already identified the key issue in your
overview statement. In the facts section, you put flesh on the
bones. For example, if the key issue in a criminal appeal is the
identification of the accused, acting for the appellant you may
want to tell the facts by talking about the frailties in the eye
witness testimony. And you will want to cut out the facts that
do not relate to this issue.
Some other suggestions for writing the facts part of
the factum more persuasively include: using headings, introducing
the facts by giving the context for them, and separating the
disputed from the undisputed facts or at least telling the court
what facts are not disputed. In some cases, where for example
the chronology is long or complicated, a chart can effectively
describe the facts for the reader. Also, try referring to the
parties by name or by a meaningful term (landlord, tenant,
lender, borrower, father, mother etc.). Especially in cases of
multiple parties do not use the “respondent by cross-appeal” or
the “third party”.
A frequently asked question is whether you should quote
excerpts from the trial transcript in the facts section of your
factum. My answer is that on occasion a short excerpt from the
transcript, using the witness’s own words, can make a point very
effectively. But do not overdo this practice. Long transcript
excerpts will make your factum too long and may divert the court
from your main theme. Preferably the transcript excerpts you
rely on should be in your compendium, which is now required in
civil appeals and is desirable in most criminal appeals. If you
do quote from the transcript, give the context before the
quotation. In other words, give the point of the witness’s
evidence before quoting the evidence itself.
6. The Importance of Argument
The recent amendments to our factum rules for civil appeals
include a requirement for concise argument in the issues and law
section. Although the previous rules did not explicitly provide
for argument, they did not preclude it either. Like most of my
colleagues, I have always welcomed argument and most good factums
contained argument. I find a succinct and focussed argument very
helpful, especially in an era of time-limited oral advocacy.
The argument should include three elements for each issue —
the controlling law, the pertinent facts and your conclusion. If
you are acting for the appellant, you must address where the
trial judge went wrong, why the trial judge went wrong and the
effect of the trial judge's error, because not every error
matters or will give you relief. If you are acting for the
respondent you must show why the trial judge was right, or if the
trial judge went wrong why the error was harmless. Sometimes
respondents are better to concede the error and then show that it
did not affect the result.
For example, in a fiduciary duty case, suppose the trial
judge found that the defendant Williams had breached his
fiduciary duty to the plaintiff O'Neill. The defendant Williams
appeals. The respondent O'Neill seeks to uphold the judgment. The
appellant Williams’ factum might say the following:
First Issue: No Fiduciary Relationship
Williams submits that the trial judge erred in
finding a fiduciary relationship. The elements of
a fiduciary relationship are scope for discretion,
unilateral exercise of that discretion and
vulnerability. In this case the element of
vulnerability is missing because (a), (b), (c),
etc.
Or, acting for the respondent O’Neill, you might say:
Second Issue: This Court Should Not Interfere with the
Trial Judge's Finding of a Breach of Fiduciary Duty
The appellant Williams contends that the trial
judge erred in finding a breach of fiduciary duty.
This finding is a finding of fact. Absent manifest
error, this court should not interfere. The
following evidence reasonably supports the trial
judge's finding: (a), (b), and (c), etc.
Therefore, no manifest error exists and this court
should not interfere with the finding.
In the first example, I told the reader early in the
paragraph that I attacked the finding of a fiduciary relationship
because the element of vulnerability was missing; then I would
have discussed the point. Surely this is better than a bland
statement such as: "an appeal court can only interfere with
findings of fact if the trial judge made a “palpable and
overriding error" or "the following are the elements of a
fiduciary relationship: scope for discretion, unilateral exercise
of that discretion and vulnerability". In the second example, I
told the reader upfront that the trial judge's finding was a
finding of fact and that it was reasonably supported by the
evidence. Then I would have listed the supporting evidence. In
both examples I used point first writing.
Your argument should be focussed, and if it is focussed it
will do two other useful things. First, it will avoid the
generality problem. One common weakness in the law section of the
factum is that statements of law are too general. They are not
specific enough to the facts of the case. For example, if the
appeal concerns a claim against a real estate agent arising out
of a transaction of purchase and sale that went sour, general
statements about the duties of real estate agents are not
helpful. Focus on the duty or duties that arise on the facts.
Second, a focussed argument will allow for listing, tabulating or
grouping relevant facts or points in one paragraph — the (a),
(b), (c's), etc. — which can be powerfully persuasive.
Therefore, your factum should contain argument. The level
of detail is another matter. For our court you do not need to be
as detailed as for the Supreme Court of Canada. The level of
detail depends on the case, the number of key issues, and whether
we are likely to reserve.
7. Standard of Review
The applicable standard of review should be addressed in the
law section of the factum. Often it is ignored. This is not
just an administrative law point but permeates every appeal to
our court. Remember our role: We do not retry cases; instead,
we look for error in the trial court. Thus you have to be
conscious of the standard of review in the law section of your
factum and address it. You must do more than identify where the
trial judge went wrong or even why he or she went wrong. You also
have to ask yourself whether the Court of Appeal can do anything
about it.
You can address the standard of review in the law section of
your factum in one of two ways: as a stand alone section headed
"Standard of Review" or as part of the substantive argument on an
issue as I did in my fiduciary duty examples.
If you are acting for an appellant in a criminal case,
appealing a decision of a summary conviction appeal court judge,
you can only appeal on a question of law. The best factums state
upfront what the appellant contends is the error of law made by
the trial judge. If you are appealing a damage award, you will
recognize that the Court of Appeal has a very limited power of
review3. Write the law section with this limited review power in
mind. Tell us why the damage award is reviewable before you get
into the detail. If you are reviewing the exercise of a trial
judge's discretion, you need to find an error in principle. To
do that, you have to know what the error in principle is (for
example, failing to take into account relevant factors) and then
state it.
Conversely, if you have a finding of fact in your favour,
use it. Itemizing or tabulating in a list the evidence that
reasonably supports a finding of fact is a persuasive technique
for respondents. If you are attacking a finding of fact, you
need a major error to persuade our court to interfere. You need
"manifest error" or "palpable and overriding error", which is
equivalent to review on a standard of unreasonableness. If no
such major error exists, then you must argue your appeal by
accepting the trial judge's findings of fact.
Remember this however: though trial judges may not always
believe it, we do not go out of our way to overturn them. In
colloquial words, we cut them a fair bit of slack. Even if we do
not think that their judgment is perfect, we will strive to
uphold it if we think that the result is fair or does justice to
the case. The lesson for factum writing is to dispense with
highly legalistic or minor errors. You need to identify a major
error that affects the justice of the result.
8. The Respondent's Factum
Most of my suggestions apply both to the appellant's factum
and to the respondent's factum. However, I have a few
suggestions that apply particularly to the respondent's factum:
(i) The respondent's factum should be self-contained
or free-standing. The judge should be able to read it
on its own without having to refer to the appellant's
factum. Therefore, I do not find it helpful when a
respondent's factum says "as to paragraph 11 of the
appellant's factum, it is submitted that ..." Far
better to say, "in paragraph 11 of her factum, the
appellant Smith contends that the trial judge
misinterpreted s.139 of the Highway Traffic Act. Jones
submits that the trial judge did not misinterpret this
section. The trial judge ... ". Moreover, cross-
referencing to the appellant's factum allows the
appellant to control the presentation of the case.
(ii) The respondent can make particularly effective use
of the overview statement. For a respondent, the
overview avoids the stark and often unpalatable choice
of accepting the appellant's statement of the facts or
re-writing it. Re-writing often seems petty but often
a respondent does not like the appellant's gloss. The
overview statement allows a respondent to give a
factual summary of its position. An alternate
technique is to outline the facts relevant to an issue
in the law section.
(iii) A respondent should not feel limited by the appellant's
statement of the issues. It is entirely appropriate to
recast the appellant's statement in less antagonistic
terms that reflect the respondent's view of the case.
"The trial judge erred in admitting inflammatory
photographs" can, in the respondent's hands, become
"the trial judge did not abuse her broad discretion in
concluding that certain photographs were admissible".
(iv) A respondent’s factum can make effective use of
lists. Frequently a respondent can succeed on an
appeal by showing that the trial judge’s findings of
fact are reasonably supported by the evidence. A
submission that says: “the following evidence
reasonably supports the trial judge’s finding of bad
faith: (a), (b), (c) …” is invariably persuasive.
9. Candour
A familiar admonition is that candour is an essential
ingredient of good advocacy. This is true both of written and
oral advocacy. In the factum candour is essential both in the
facts section, and in the law section. Candour in written
advocacy takes many forms. Let me suggest four ways in which a
factum may lack candour:
(i) Being Unfair to the Record: Because the facts
decide the outcome of most appeals we naturally
want to refer only to those facts that help our
case. But you must be fair to the record. This is
not just an ethical obligation but common sense.
Opposing counsel will be sure to point up your
misstatements, distortions or omissions. At the
same time, however, you do not need to emphasize
facts unfavourable to your position. Unfavourable
facts can be dealt with effectively in many ways.
For example, you can de-emphasize unfavourable
facts by your sentence structure or by referring
in the same sentence or paragraph to facts that
qualify or explain the evidence against your
client.
(ii) Overstating Your Claims: These are examples of
overstatement: a defendant's conduct was
"egregious," or the trial judge's ruling was "a
gross miscarriage of justice," or "three witnesses
corroborated every single aspect of the
plaintiff's evidence". Overstatement is jarring.
Be careful about using this form of advocacy in
which you are really expressing a conclusion in
superlatives. If you do use superlatives then you
better have the ammunition to back them up.
Otherwise, not only will your argument suffer, so
too will your credibility with the court. The
right noun or the right verb unqualified is far
more forceful than the wrong one arrayed in
superlatives. In the same vein, restraint or
understatement is usually more forceful than
exaggeration. Appeal to what you hope is the
judge's intelligence.
(iii) Facing up to your Weakness or Difficulties:
If your argument has a weakness, not only will
your opponent address it, the weakness will
concern the court. Far better for you to meet it
head-on, than to leave it unanswered. Do not fall
into the trap of thinking that if you do not
address your difficulties, neither will the court.
(iv) Demeaning your Opponent's Case: Do not denigrate
your opponent's position either by expressing it
weakly or (except in the rare case) by dismissing
it as frivolous and without merit. This is a
common mistake. You will be far better off to
state your opponent's argument fairly — even
strongly — and then refute it. Only then will you
know that you have a case.
10. Give The Court Credit For Knowing A Little Law
Many factums do not seem to recognize that there is a core
body of legal principles and cases that is well-known by the
court. These principles and cases are referred to so frequently,
that every member of the court is intimately familiar with them.
We do not need four paragraphs on the standard of review of a
trial judge's finding of fact or five paragraphs on the summary
judgment test under Rule 20. All of us are a bit weary of seeing
the admonition that "the defendant must lead trump" although
when one appellant did cite this phrase in a recent factum, the
respondent effectively replied that the defendant appellant did
not lead trump because he had no trump to lead!
We all know about “palpable and overriding error,” about
genuine issues for trial and, in a criminal case, about error in
principle as a basis for reviewing a sentence. If you are going
to state such well-known principles, one stand-alone paragraph
will do. Better still, simply tell us what is the “palpable and
overriding” error or genuine issue for trial or error in
principle and then discuss it.
A related problem is that many counsel list far too many
cases in their factums. The Court of Appeal storage area is
filled with casebooks cluttered with cases never referred to by
counsel. My guess is that over 90% of cases cited in most factums
are not referred to in oral argument and are not used in our
judgments. Listing too many cases shows that you really have not
thought enough about which cases will really help you. In most
appeals, you can limit the authorities to the following:
(i) the most recent case on the subject, either from
our court or from the Supreme Court of Canada. For
example, for the standard of review of a finding
of fact, refer only to one or two cases such as
Schwartz v. Canada4 or Hodgkinson v.Simms5; if the
issue is the application of s.24(2) of the
Charter, R. v. Stillman6 and R. v. Feeney7 should
be enough;
(ii) a case close on the facts;
(iii) a "leading" old case; or
(iv) a case in which the point in issue is fully
discussed by a well-respected jurist. We are only
human and we are influenced by who wrote the
judgment. The Honourable Arthur Martin's opinion
in a criminal case is probably more persuasive to
us than the views of another judge less
experienced in the criminal law.
Of course, if you have a jurisprudential appeal then you may have
to refer to more authorities, both in Canada and in other
jurisdictions, to develop your point.
11. Quotations >From Cases And Statutes
Sometimes it is necessary to refer in your factum to
the relevant part of a statute and sometimes it is desirable to
quote from a case. If an outside authority can advance your
argument in language more convincing than your own, then use it.
But long quotations from cases or long extracts from a statute
are easy to skim and skip. Try these suggestions:
(i) Keep the quotation or extract short: refer only to
what is essential.
(ii) Give the context for the quotation. In other words
summarize what the judge can expect or at least
entice the judge into the quotation by
introductory words. Giving the context increases
the chance that the judge will actually read what
you have cited.
(iii) Unless the quotation is long, do not block or
indent it. Instead, put it in the text, which will
also improve the odds of it being read.
12. Writing Concisely
To be persuasive, factums must be concise. Unfortunately
many factums filed in our court are anything but concise. This
lack of concision takes many forms.
Often factums are just too long. Our court’s Practice
Direction permits a factum of up to 30 pages (and longer with a
judge's order). Many counsel think that they have to fill all 30
pages even in the simplest of error-correcting appeals. They are
wrong. With our heavy workload long factums run the risk that,
although they will be read, they may not be read carefully and
fully digested. I have never heard a judge complain that a factum
was too short. John Robinette, one of the greatest advocates our
country has ever produced, wrote factums that were almost always
less than 15 pages. He knew the point he wanted to make and he
wrote simply and concisely. He simply pruned away all the fat.
Why are factums too long? Time and fear are two main
culprits. We do not take enough time to write a shorter, more
concise factum; and we are afraid of writing too little or of
leaving something out. Effective writing requires selection and
clear thinking. Conciseness is often a by-product of knowing
what your case is about and where you are going.
The facts part of factums often is not written concisely,
perhaps because counsel have not clearly framed the controlling
issue or issues. Once you have framed the controlling issue,
make sure your statement of the facts refers only to those facts
necessary for the court to deal with that issue. Cut out the
facts that are not needed.
Listing too many issues is another way a factum may lack
concision. Almost all appeals have only one or two or, at most,
three good issues. Yet, even in ordinary error-correcting
appeals, we frequently see counsel listing seven, eight, even
ten issues for the court to decide. We can never know the case
as well as counsel does and we can spend only a fraction of the
time that counsel has spent on it, so you must focus our
attention on the one or two issues on which you believe the
appeal will turn. Counsel do not always give that question
enough thought. Figure out these one or two issues and, in most
cases, dispense with the rest. Certainly dispense with
legalistic arguments that do not advance the interests of
justice and let the minor points go. As the Honourable Sydney
Robins, one of my former colleagues, put it: "legal contentions,
like currency, depreciate through overissue". Multiplicity hints
at a lack of faith and confidence in your major grounds of
appeal. Multiplicity may weaken a good case and will not save a
bad one. The message is: do not try to make every argument and
do not bury your best argument in the last or second-last
paragraph of your factum. Put your best argument upfront, unless
the logic of your position requires some modest variation.
Counsel frequently write paragraphs that are too long. They
like to cram too much into one paragraph. Try to keep each
paragraph to one idea or one topic whose point you state clearly
at the beginning and then develop in the rest of the paragraph.
Finally, sentences are frequently too long. Counsel want to
put too much into one sentence, usually because they worry about
absolute statements and wish to qualify or attach conditions to
everything they say. Long sentences are not wrong, but they are
harder to understand and retain. They do not work as well in
legal writing as in, say, fiction. On the other hand, I am not
going to tell you that every sentence should be short because
good writing has a rhythm that requires variation in sentence
length. Indeed, some of the most beautiful sentences in the
English language are long sentences, but they are always
characterized by a parallel structure for parallel ideas or by
some other device that makes them flow. A reasonable working
rule is to use only one subordinate clause in every sentence,
unless you resort to one of the devices that make a longer
sentence coherent.
13. Language
This topic deserves a paper of its own, preferably by a
professional writer instead of by a judge. Language and content
are intimately connected. Forceful language makes for more
persuasive content. Here are some of my suggestions to help you
write your factums more forcefully and thus more persuasively.
Or, more accurately, this is my "hit list" of what to avoid:
(i) Avoid using the phrase "it is respectfully
submitted" more than twice in your factum. Use it
once at the beginning and once at the end of the
law section, but not in between. Repeated too
often, this phrase disrupts the force and flow of
your argument;
(ii) Avoid false intensifiers: "completely wrong",
"absolutely" "unfounded", "very serious error",
"clearly", "certainly", "it is important to note
that", "blatant violation". These false
intensifiers usually weaken rather than strengthen
the force of your argument;
(iii) Romance the verb. By that I mean use active
verbs and I do not include the verb "to be".
Active verbs are forceful, and therefore are an
important ingredient of persuasive writing. Using
active verbs also means avoiding three practices
that detract from forceful writing. First, avoid
using too many adjectives and adverbs. Second,
avoid nominalizations, that is, avoid changing
verbs into nouns. Nominalization is a contagious
disease among lawyers. Instead of writing "make an
argument", write "argued"; instead of "executed a
veto", "vetoed"; instead of "gave consideration" ,
"considered"; instead of "conducted an
investigation", "investigated". Third, avoid
excessive use of the passive voice. Lawyers are
far too enamoured by the passive. Both the
passive voice and nominalization have their place
in good writing but limit their use.
Nominalization and the passive reflect the
lawyer's reluctance to admit someone is doing
something to someone else. Lawyers like to
conceal action beneath the surface. We need to
correct this. Nominalization and the passive can
be effective and persuasive but their use should
be a conscious choice.
(iv) Avoid the word "not". Unless your tone dictates
otherwise, instead of "did not consider", write
"ignored"; instead of "did not remember", write
"forgot"; instead of "did not allow", write
"prevented"; instead of "not very often", write
"seldom"; instead of “did not perform under the
contract”, write “breached the contract.”
(v) Avoid what the late Professor Rodell of Yale Law
School called the "backhanded passive": "it is
urged that", "it would seem to appear that", "it
is suggested that", "it is observed at the outset
that", "it should be pointed out that". In other
words, forget the windup and make the pitch.
(vi) Avoid needless words. Instead of writing “it is
imperative that the court consider”, write “the
court must consider”; instead of writing "this is
a case which addresses", write "this case
addresses"; instead of writing "may have the
effect of increasing”, write "may increase”;
instead of “on an annual basis”, write “annually”
or “yearly"; instead of "in the event that", write
"if"; instead of “at this point in time”, write
“now”. On this topic, I highly recommend Bruce
Ross-Larson’s book, Edit Yourself8. It contains a
long list of what to cut and what to change. I
keep this book handy when I am writing reasons.
(vii) Although this advice may cause mutiny among lawyers
and judges, try to avoid “the fact that”
expressions. Instead of writing “the fact that
Carter failed to give notice, write “Carter’s
failure to give notice”; instead of
“notwithstanding the fact that”, write “although”;
instead of “due to the fact that”, write “because”;
and cut entirely “the fact remains that”.
(viii)Avoid the dreaded couplets: null and void, cease
and desist, due and payable, free and clear, force
and effect.
(ix) Avoid legal jargon. We do not see too many
"hereinafters","hereins", inter alias", "the said".
But counsel still write “prior to” and “subsequent
to” instead of “before” and “after”; “the
construction of a statute” instead of “the
interpretation of a statute”; “mandates” instead of
“requires”; “utilize” instead of “use”; “terminate”
instead of “end”; “necessitate” instead of “need”;
“remuneration” instead of “salary, wages or pay”;
“adjacent to” instead of “next to”; “provided that”
instead of “if”; and “pursuant to” instead of
“under”. Although harder to detect, this is still
jargon. I distinguish, however, between legal
jargon and legal terms of art. Parol evidence,
summary judgment, and hearsay evidence are terms of
art, and are a necessary part of lawyers' language.
(x) Avoid “it is,” “there is,” and “there are” clauses.
Instead of writing “it is true that the defendant
failed to testify”, write “the defendant failed to
testify”; instead of “there are many cases that
deal with adverse possession of islands”, write
“many cases deal with adverse possessions of
islands”; instead of “there were ten people who
witnessed the shooting”, write “ten people
witnessed the shooting.”
Generally, I prefer a simple, concise style that uses active
verbs, avoids excessive use of adjectives and adverbs, limits the
use of the passive voice, and puts the subject, verb and object
close to each other.
14. Sentence Structure
The structure of your sentences has a great impact on
the persuasiveness of your writing. Here are a few suggestions:
(i) Avoid too many “left-handed sentences.” Lawyers
like to qualify everything they say. So they
begin their sentences with a string of dependent
clauses beginning with "although", or "if" or
"even if". Judges are exhausted by the time they
get to the main noun and verb. To avoid the left-
handed sentence either do a flip-flop by putting
the dependent clause at the end of the sentence
instead of at the beginning, or put the
introductory clause into a separate sentence.
(ii) Remember that the two most important parts of the
sentence are the beginning and the end. This has
important implications for the points in your
factum that you wish to emphasize. Your important
points should be at the beginning or end of your
sentence, not buried in the middle.
(iii) Conversely, suppose you want to de-emphasize a
point or a fact because it is unfavourable to your
position. Try putting it in the middle of the
sentence or in a dependent clause to subordinate
it and give it less prominence, or, dare I say,
use the passive voice.
(iv) Use lists – (a), (b), (c) etc. – or even lists
within a sentence to make your factums more
readable and persuasive.
(v) Vary the length of your sentences and try using a
very short sentence in the midst of longer
sentences. Short sentences can provide an
effective contrast. Winston Churchill gives us a
wonderful example of variation in sentence length
in this passage from History of the Second World
War:
We must take September 15 as the
culminating date. On this date the
Luftwaffe, after two heavy attacks on the
14th, made its greatest concentrated effort
in a resumed attack on London. It was one
of the decisive battles of the war, and,
like the Battle of Waterloo, it was on a
Sunday. I was at Chequers. I had already on
several occasions visited the headquarters
of Number 11 Fighter Group in order to
witness the conduct of an air battle, when
not much happened. However, the weather on
this day seemed suitable to the enemy and
accordingly I drove over to Uxbridge and
arrived at the Group Headquarters. . . .
15. Making The Factum Flow
To make your factum user friendly you must make it flow
smoothly. You will make it flow smoothly if you make it as easy
as possible for the judge to understand your chain of reasoning.
Judges will understand your chain of reasoning more easily if
they see how one sentence connects to the next sentence. A good
paragraph, a paragraph that flows smoothly, will provide
effective transitions among its sentences.
Three techniques are particularly useful for making your
factum flow smoothly. The first technique is to use connecting
or transitional words. The English language is full of them.
Words such as “since”, “because”, “thus”, and “therefore” express
logical relationships. Words such as “however”, “although”,
“but”, and “conversely” show contrast or comparison between what
has been written and what is about to be written. Words such as
“also”, “next”, “in addition”, “first”, “second”, and “finally”
show the progression of the discussion. Words such as “still”,
“nevertheless”, and “notwithstanding” indicate a return to the
main point after conceding another point. These transitional
words do not always have to occupy the first word of a sentence
and not every sentence needs a transition. Judges are smart
enough to make some connections themselves. So use transitional
words, but do not overuse them.
The second technique is to repeat at or near the beginning
of the sentence some of the content of the preceding sentence,
using either the same words or an easily recognizable substitute.
For example, “s.108 of the Courts of Justice Act requires an
action for specific performance of a contract to be heard without
a jury. This requirement means …”.
The third technique is to organize the information in each
sentence so that you put older or familiar information at the
beginning of the sentence and new information at the end of the
sentence. Williams gives this example:
Original
Some astonishing questions about the nature of the universe
have been raised by scientists exploring the nature of black
holes in space. The collapse of a dead star into a point
perhaps no larger than a marble creates a black hole. So
much matter compressed into so little volume changes the
fabric of space around it in profoundly puzzling ways.
Revision
Some astonishing questions about the nature of the universe
have been raised by scientists exploring the nature of black
holes in space. A black hole is created by the collapse of
a dead star into a point perhaps no larger than a marble.
So much matter compressed into so little volume changes the
fabric of space around it in profoundly puzzling ways.
Revising the second sentence of the paragraph makes the
entire paragraph flow more smoothly. And you will have noticed
that this smooth flow was accomplished by using the passive voice
instead of the active voice in the second sentence. Indeed, one
of the most important and effective uses of the passive voice is
to improve cohesion or sentence flow.
16. Editing
Many factums are not properly edited. They end up
looking like the first draft instead of the final product. Of
course, editing runs up against the time pressures of getting
your factum out. A decent edit, however, can convert a mediocre
factum into a very good factum. I strongly encourage counsel to
find time to edit.
Here are my editing suggestions:
(i) Remember that you can do different kinds of edits
and you should not try to do all of them at the
same time. What are the different kinds of edits?
You can edit for accurate case citations, typing
errors, grammar and punctuation. But you can also
edit for tone, for sentence and paragraph length,
for proper headings, for clarity and organization
and to eliminate wordiness and jargon. Do not do
all of these edits at once. Break them up or
divide and conquer.
(ii) Edit not just what is on the page, also edit what
is not there. In other words, edit the white
space. Make sure that your factum provides
context before details, that it has headings and
point first paragraphs.
(iii) Try one or more of the following:
(a) Use the bottom-drawer technique: leave your
draft factum for a few days and then come
back to it. You will have a fresh perspective;
(b) Read your draft aloud to yourself. Your ears
are often your best guide to whether your
factum is clear and persuasive. If it doesn't
sound right it needs fixing;
(c) Have someone else read your draft: a colleague,
a friend, your spouse. You are immersed in
your factum and you need a more objective view.
(iv) The most important suggestion of all: always look
to cut. “Read with a pencil”. No matter how
concisely you think you have written, you can
always make your factum more concise. So edit,
edit and then edit some more.
Closing
Writing factums puts advocates’ reputations and credibility
on the line. As I said at the beginning of this paper, judges
get to know the good factum writers and the bad factum writers,
and to recognize their styles. And, advocates are responsible
for the logic and persuasiveness of their reasoning and its
implications for the position of their clients. Yet in trying to
write decent factums, advocates run up against the pressures of
time and of busy practices. One of my main messages is that
taking the time to write a decent factum will pay huge dividends.
I hope that my suggestions will help you to write better and more
persuasive factums.
This paper has been published in the Advocates’ Society Journal,
Summer 1999.
_______________________________
1 Ronald Goldfarb and James Raymond, Clear Understandings: A
Guide to Legal Writing (Goldenray Books: Tuscaloosa, 1982).
2 (Chicago: The University of Chicago Press, 1990).
3 See Woelk v. Halvorson, [1980] 2 S.C.R. 430.
4 [1996] 1 S.C.R. 254.
5 [1994] 3 S.C.R. 377.
6 [1997] 1 S.C.R. 607.
7 [1997] 2 S.C.R. 13.
8 (New York: W.W. Norton & Company, 1996).