Recently published in the Journal of Civil Litigation and Practice at (2013) 2 JCivLP 9.

Learned Hand, as you may know, was one of the greatest American judges. He was not appointed to the Supreme Court. In the 1920s, 1930s and 1940s he commanded the 2nd Circuit Court of Appeals (the federal appeal court taking in New York State and surrounding areas). With his cousin Augustus Hand (Gus) and Dean Swann, who moved from Yale, the three of them were one of the best appellate courts ever in the English speaking world.

Just after Learned moved to practice in New York City in 1905, having begun practice in the somewhat provincial capital of New York, Albany, he lamented his lack of a thriving practice. All he was given was work for other law firms on a contract basis. That work was writing briefs (in effect written submissions) for appeals in the New York Court of Appeals and the 2nd Circuit Court of Appeals.

Two things are revealed by this. First, the Americans have been using written submissions for much longer than English and Australian courts. (Can you imagine the startled look on the face of the Master of the Rolls in 1905 if counsel had filed 20 pages of skeleton argument and, on rising to his feet, asked whether he would assume the court had read them?)

Secondly, briefs or submissions were, in 1905, and are today, difficult to write. That is why those other lawyers were asking the brilliant Learned to write them.

What is discussed here regards appellate written submissions, but can, with some modification, be translated into written submissions at trial. Given, however, that the usual appellate task is dissecting the cadaver in a post-mortem, not creating a living creature at trial, written submissions are a more usual and appropriate appellate tool.

This article does not differentiate between skeleton arguments and written submissions, hence this may need to be modified by reference to one’s own practice guidelines.

There is no magic formula. There is, however, one golden rule – dense, turgid, and structureless written submissions turn sweet gentle and humane appellate judges into bad-tempered and rude enemies.

You have to think about each written submission you draft as to what is its best form and structure. The issues to be addressed will be vital – is it fact, law or a mixture?

There are, however, a number of things to remember.

The first is that you have to explain something that you now know a great deal about. Your reader will too, but only in due course. The document will initially be read by a judge knowing nothing of your argument. Try and remember how you came to understand the subject. That may well be the best route through the forest of explanation to the court.

Secondly, written submissions generally have three functions and they must be drafted to fulfil all three. The first is that the written submissions will be read before the appeal by a busy reader, who may have two, three or four appeals that week. So, there must be a short, coherent and readable encapsulation of the essence of your argument. The second function is that the written submissions will be used during the argument to follow and understand the appeal. So the structure and text should reflect how you intend to speak. “Where are you in your written submissions, Ms X?” can be a precursor to expressed irritation if what you are saying cannot be easily identified in badly organised writing; or, it can be the beginning of a warm and meaningful relationship if it can be seen that what is being said reflects a clear written position. It also tends to keep the bench quieter, if they know what you are doing, where you have come from and where you are going. The third function is that the written submissions will be used after the hearing to write the judgment. So, not only must there be a crisp intelligible introduction, and an elegant structure reflecting the oral address, but a reasonably comprehensive placement of significant information. It is this third function that often dominates (and ruins) written submissions. Long, dense, badly organised, even if comprehensive, submissions make judges irritable and unenthusiastic in their attention. If written submissions are hard to grasp (first function not fulfilled) and if they are useless to use during argument (second function not fulfilled) they will not have been part of the process of information gathering and intellectual synthesis by the court.

You want your written submission, annotated and marked, to be the bench’s primary reference point. Judges hate having to read your written submissions, any transcript and their own notes.

Written submissions are not mere preparations for the appeal, they are not a mere procedural precondition for the appeal. They are now the first half of the appeal. You do not get enough time to argue appeals entirely orally. If you do written submissions badly, half your appeal has been done badly.

Finally, what do you say on your feet? After all, the written submissions are perfect.

This is an article in itself – the relationship, the critical relationship, between the written and the spoken word in advocacy.

Remember – your court will be busy. They will have read your written submissions – perhaps more than once, perhaps once. They are quite likely not to have fully absorbed them. You have a group of intelligent, busy people who may have a jumbled or confused understanding of what you want to say. You have to ensure that the structure and detail of their understanding accords with your argument. What must they grasp? What structure of argument? What central body of facts? Take them in the materials to what you wish them to understand. Do not just read the written submissions. Time is precious. Think about what case, what facts, what parts of the trial judgment you wish them to read – then and there.

“Why are you taking us to this Ms X, the references are all in your very helpful submissions?”, his Lordship asks not without a touch of impatience.

“Yes your Lordship; they are, but I wish to take you to selected parts of the evidence of the meeting to demonstrate that there can be no doubt that the learned judge’s findings on this central issue were wrong. I will take you to the first three references in [61] and leave the court to read the other seven there referred to which are in like terms.”

Judges love that:

  • you have command of the paper;
  • you have command of the facts and your brief; and
  • you have command of the court.

Well-structured written submissions enable you to achieve what all advocacy is about: control of the occasion and persuasion.

Written submissions are hard to do well. It is more than putting down all the stuff. It is organising it for all the functions they will serve and to help you organise the thinking of busy judges, of varying dispositions. That is why those New York lawyers used Learned.

Justice James Allsop
President, New South Wales Court of Appeal.
This article is an adapted version of a speech given at Lincoln’s Inn on 28 January 2012.