Regardless as to how and when the legal system 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 will continue to be an art not lost but still practiced not only by those who bill-out at hundreds of dollars an hour, but also by the lay litigant. A writer's art, the art of writing one's legal arguments to the court of law for the convenience of that court.

There are many names given to this document such as written submissions, factum and brief. Factum is a name usually given to a formal document which has to be submitted to the court in accordance used with a specified form, and mostly used on an appeal. The term brief is also used to describe a legal opinion exchange not necessarily for the court but 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 there are no witnesses called to testify in the witness stand and instead, the evidence is entirely given by affidavit.

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

The Purpose of Written Submissions

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

"Preferring written submissions may well speed up the chambers hearing as the master or justice need not play stenographer, making notes, and the very act of creating written submissions often assist in focusing issues or determination".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 route to the judge's heart and mind before the hearing."

One lawyer even proposes that: "… the most important part of any chambers application is to ensure that you have … written submissions available to hand up to the court and … opposing counsel."2

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

One of the many good reasons for this is that no judge is an expert in all areas of the law (and the same can be 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.

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

"... to go right to those of the swing issues you have identified and indicate where he/she needs help from counsel…. The written (submissions) permits the judge to think about the matter before oral argument and asked focused questions."3

The best general advice that can be proffered in terms of preparation of the written submissions is to imagine yourself writing the final decision for the judge 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 by a judge, of what it believed to be the perfect content of written submissions. What follows is gleaned from several of those sources:

Introduction

Start 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 neighbor. Engage the judge, capture the essence of what the case is all about.... In other words, solicit the judge's affection for your cause."4

What is a lawsuit about? If it is a lawsuit about a motor vehicle accident, say so. You should also summarize your client's case with reference to the specific relief you are seeking from the court. This is often sometimes also referred to as the remedy you are seeking.

The Facts

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

What you are trying to achieve 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

Identify the issues that are before the court; the unresolved questions that form the core of the dispute. Most judges and lawyers will tell you that this usually comes down to two or three issues, maximum.

The Law

Summarize the applicable law especially that upon which you intend to rely on - both statute law and cases. In this part, you will also want to refer to the legal cases that you will be relying on and for that, you will want to use the proper and correct legal citation.

Argument/Analysis

The heart of the written submissions is the argument or analysis section; the proposed marriage 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 advance of the hearing. Speaking from personal experience, this is routinely disregarded and many lawyers show up in court and hand their written submissions to the other lawyers literally when they stand on their feet. Nothing is served by this but I have yet to find a judge willing to support any criticism of this last-minute nonsense so from experience, it would appear that nothing is gained by complaining about it even though it ought not to happen.

The Writing

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

"What should be remembered throughout the preparation of these (written) submission is that you are marketing to the court your client's point of view or position. Thus you are in effect "selling" your client's position to the court."5

Do not make the written submissions too long. Several pages should do it except for the occasional complex case which might take over ten.

Touché par la grace

Sitting down and preparing written submissions can often be a challenging job even for the most seasoned of lawyers when in many cases, are just plain sick and fed up of being preoccupied with the file and just want to get the hearing over and done with. And yet, with this exercise of written submissions, there are obliged to reopen their chambers book a week before the hearing and embark upon this essential task. It is a good thing in any event as it will give them an agenda to follow at the hearing.

But essential task it is and whether you are a lawyer or a self-represented party, if you're lucky, good or experienced, your written submissions will have that final feature of flow. Written submissions which flow attract and keep the attention of the judge from beginning to end.

An interested judge will always look forward to written submissions and if you are appearing in court especially in chambers, and unless it is a simple routine matter, you will want to hope and pray that whatever writing magic you 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 closing, 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 feel that the written submissions must be redundant because if there is something they needed to hear, the point would have been made to them verbally. This, of course, defeats the whole purpose of written submissions and can significantly compromise justice because as litigants and lawyers make time estimates, they are entitled to assume that the court will read the affidavit evidence and the written submissions. As time runs out in the courtroom, there is a disturbing refrain that can be heard from time to time and it usually starts with the ominous words "do you expect me to read all of the...."

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

These events are difficult to explain and certainly impossible to justify but self-represented litigants and lawyers needs to be alive to the risk.

Still, even in this regrettable circumstance, good written submissions will only ever benefit because if nothing else, even if pressed for time, the written submissions will serve as an agenda for the verbal presentation.

REFERENCES:

  • Cromwell, Thomas, Preparation of Factums (Aurora, Ontario: Canada Law Book, 1996)
  • Laskin, John, justice of the Ontario Court of Appeal, Forget The Wind-up 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), page 1.1.5.
  • NOTE 2: Urquhart, Glenn, Mastering Civil Chambers, originally published in 1997 but appendixed to Shields, Chambers Practice 2013 , op. cit.
  • NOTE 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 5: Urquhart., G., op. cit.