This paper is not intended to explore the academic or theoretical issues of written advocacy.
For those interested in those facets of the new advocacy there is an excellent paper by Justice Ken Hayne entitled Advocacy & Special Leave Applications which is available on the High Court website under “Publications/Speeches”.
The articles and texts Justice Hayne mentions in his paper would also repay reading. They include “The Role of Counsel and Appellate Advocacy” by Sir Anthony Mason (1984) 58 ALJ 537; Justice Sackville’s article “Appellate Advocacy” (1997) 15 Aust Bar Rev. 99; two articles by David Jackson about the High Court and appellate advocacy entitled “Practice in the High Court of Australia” (1997) 15 Aust Bar Rev. 187 and “Appellate Advocacy” (1992) 8 Aust Bar Rev. 245; Justice Robert Jackson’s paper “Advocacy before the United States Supreme Court” (2003) 5 The Journal of Appellate Practice & Process 219 and David C. Frederick’s book “Supreme Court and Appellate Advocacy” on arguing appellate cases and other appellate courts in the United States.
It was Justice Robert Jackson who is reported by Justice Hayne 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…