“Justice Robert Jackson is reported as saying that as Solicitor General of the United States he made three arguments in every case:
‘First came the one that I planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.’
The most important technique to be practised for the purpose of preparing written submissions is the framing of the essential issue in the case. Justice Hayne in a paper given to the Victorian Bar Continuing Legal Education program on 22 November 2004, expanding on a paper he gave to the Western Australian Bar in Perth in October 2004, put it this way:
‘In any written argument, but especially an application for special leave to appeal, a statement of the issue that is said to arise is very often of critical importance. Putting the issue in terms that reveal the issue of principle that is said to be at stake is very important. That is not done by saying that “the issue is whether the Court of appeal erred in making the orders it did”. Such a statement of issue tells the High Court absolutely nothing about the case.’
Derwent and Tamar Chambers will be holding a workshop on Written Submissions – The New Advocacy on Friday 20 July 2o12 in its common room from 4.00pm until 5.30pm followed by refreshments.
The principal presenter will be Stephen Estcourt with commentary by Chris Gunson. Stephen will will speak to a paper he is preparing to use as a coach at the Australian Bar Association’s Appellate Advocacy Course to be held at the Federal Court in Sydney in October. The paper in its present form will be available to those attending the July workshop.
The aim of the workshop is to canvass the need for written submissions, their aim, their content and construction and using them effectively pre – hearing but most importantly to focus on how to present them effectively in court. And that is not reading them or even summarising them.
As Justice Hayne said
“The guiding principle is that you must be able to present your argument in a way in which you are engaging the Court. Counsel who puts his or her head down in order to read a prepared speech, or a slab of judgment, foregoes any opportunity to engage the Court.”
The workshop is free and is open to all barristers and solicitors but numbers are limited to 20. It has been accredited by the Law Society CPD Committee with 1.5 CPD points under Professional Skills.
Anyone interested in attending should email Stephen at stephen.estcourt@tasmanianbar.com.au
