30 August, 2016
I have set out below 10 appellate advocacy tips. They focus on the skills of arguing before the Court of Appeal and the Federal Court.
Some of these lessons have been passed down from senior counsel I have worked with. Some are based from my own observations or tips gleamed from the judiciary at various conferences. I cannot take credit for these tips but I do hope that they came in useful.
Any errors are my own.
Ultimately, there is no substitute for being on your feet, making your submissions, learning from each experience and developing your own style.
Read about knowing the battlefield, winning the battle through written advocacy, starting strong in your oral advocacy and building your reputation.
#1. Know the Battlefield
Know the physical location of the court, whether on the ground floor or the first floor. If your hearing is not fixed on a Monday, find out the quorum of the judges hearing your appeal for that week.
Know the judges, and know the cases they have decided. Whether to emphasise heavier on the facts or on the law. Important to know who is presiding over the panel and it is important to win over the presiding judge.
#2. Written Advocacy: Where the Battle is Won?
You must have strong written submissions. They will be filed two weeks before the actual hearing and where the advocacy already begins. So much of the battle can be won through good written submissions.
I quote from Justice Abdull Hamid Embong FCJ (as he then was) from a conference in 2015: “Win or lose the case, your written submission is your biggest weapon, it should be well researched and a proper submission.”
#3. Pointers for Written Submissions
Short and punchy: I am increasingly of the view that written submissions must be kept shorter. Force yourself to edit your language and to focus on just the key points. Have short and concise arguments.
Strong Executive Summary: Devote time to polish the Executive Summary. It is a crucial section in the submissions. It must distill the brief background facts, the key issues and with a summary of the arguments on why the appeal should be allowed / dismissed.
Common Core Bundle of Documents: Prepare a common core bundle of documents to be used by all parties. Have your written submissions refer to the page references and tabs in the core bundle.
Judges already know the judgment: The starting premise is this – if the judgment is sound, the judges will look to the Appellant, and not the Respondent, to convince them why the judgement should be overturned.
Standardise and Structure: Stick to standard fonts. The Practice Direction already provides for the font type, font size and spacing. Structure the submissions with headings, topics, sub-topics.
Visual Aids and Colour: Where appropriate, use colour, flowcharts, boxes and diagrams. I try to weave in the key diagrams and flowcharts into the flow of the submissions themselves instead of having them annexed at the back. This is to help with ease of uninterrupted reading of the submissions.
Referencing: I have heard that many judges prefer having shoulder notes instead of foot notes. It is easier on the eye and with a more natural flow. Foot notes may run and the font may be too small.
Language: Mind the language. Sufficient attention to be given to grammar and spelling.
#4. Approach when Overturning / Upholding Trial Findings
Must thoroughly read and dissect the grounds of judgment of the trial judge.
When acting for the Appellant and wanting to overturn certain findings:
Isolate findings of law and fact. Each one to be approached separately.
Isolate facts from inferences.
Consider the law and the burden of proof applied by the trial judge.
Limited circumstances for appellate court to reverse trial judge’s finding on credibility of witnesses. But can reverse where trial judge has failed to properly analyse all of the evidence.
When acting for the Respondent and wanting to maintain the trial judge’s findings:
Argue that point is one of fact.
Trial judge has addressed his mind to all the evidence.
Trial judge had the audio-visual advantage and is best to assess credibility of witnesses.
If there is concurrent finding of fact by the Subordinate court and the High Court judge, Court of Appeal cannot disturb such
concurrent findings.
#5. The Court’s Preparation:
I have had judges share the following points at several conferences before.
Before the appeal hearing, the judges will tend to read the Memorandum of Appeal (which sets out the grounds of appeal), the Grounds of Judgment, the pleadings, and the written submissions. The Registrar would also prepare some form of a summary of case for the judges. If you file last minute submissions or late supplementary submissions, you may lose out on having the judges consider those new points.
Key takeaways: Consider the wording and drafting of the grounds in the Memorandum of Appeal. It already forms part of explaining why the appeal should be allowed. Don’t file your written submissions late.
#6. Oral Hearing: Start Strong and Other Pointers
If the judges are actively writing the names down, don’t speak.
Take the judges through the documents you intend to rely on in your oral submissions (i.e. which bundles, which submissions, that there is a common core bundle). This sets a roadmap for the key bundles you will be referring to.
Opening words: Say who you act for and what this appeal is about. Then set out a brief summary of the case. Summarise the number of issues and inform the Judges which issue determines the appeal and why the issue is important.
To quote again from Justice Abdull Hamid Embong: “That is why, the lawyers should open the case strongly. Just tell us – My Lord … I’m making two points today.”
Killer Point(s): What will be the killer point or killer points you will be referring to? Weak points can be dropped or placed with less emphasis.
First few minutes are crucial: Make an impression. See here for a Singapore appellate advocacy perspective: “… counsel is only in control of his oral submissions for the first three minutes.”
Visual: Consider complementing your oral submissions with visuals such as sketch plans, Power Point presentations, or illustrations.
A picture can paint a thousand words. I observe that the appellate courts now have projector screens and LCD screens installed.
The Chief Justice in 2013 had already encouraged the use of electronic presentation systems.
Do not interrupt the Judge when he or she is speaking.
Remember to pause: Pause for emphasis and pause to ensure judges are following.
Counsel must know the file: There should not be a case where the senior bends down to take instructions from a junior, or a junior interrupts a senior, or a junior speaks instead.
Division of labour: If advocacy divided between lawyers, inform the court of how the submissions will be divided, which counsel will deal with which issue.
Adopt these standard phrases and do not use informal language:
“that is so My Lord”
“I am guided My Lord”
“Are My Lords with me”
“this is important My Lords”
“Please bear with me a moment My Lord”
#7. Read the Judges
When they are talking to each other, stop and observe before continuing.
Make eye contact and engage all 3 judges.
During the hearing, be alert to cues given by the judge.
Do not prolong a submission which is already accepted by the judge. One way to test the water is to ask “Is my lord with me?” or “If your lordship agrees with me on this point , then I need not continue with the rest of my points”.
But if the judge shows his irritation, do not lose hope. Pause for a while. Address the concerns directly. Do not evade the issue.
Use psychological words like “Bear with me my lord” or “ Let me persuade your lordship”
Pause (again, important): Make sure the judges have the relevant material before them. Observe the orderlies to confirm they are bringing the bundles to the judges.
#8. Answering Questions
Do not feel intimidated but state your position gently. Don’t be competitive and don’t antagonise. Conversely, if you are not asked questions, don’t take it as a sign that they are not with you and give up.
If unable to answer a question immediately: Note down the question and say you will come back to it later. Make sure you answer it at the end.
Weave the questions back into your submissions. Echo the phrases or words used by the particular judge in that question, and re-use into your reply to the question or to utilise for your additional points.
#9. Finishing Strong
Finish strong in your conclusion: For the Appellant, bring the court back to the issue or the key issues. Go back to the High Court Order. Say which are the Orders which should not be upheld.
For the Respondent, say that the High Court Judge has held as follows. This is the correct judgment.
#10. Building your Reputation
A significant factor in appellate advocacy is the standing of the advocate. The advocate’s reputation and frequent exposure before the appellate Bench. Long term and constant journey to build and hone such a reputation.
Increase exposure: As junior counsel. Written submissions should list the names of all the counsel who worked on that matter, and
will assist junior counsel to build up reputation.
Arguing matters in the High Court: Frequent appearances before the High Court will build your standing when the High Court judges are elevated to the appellate level.
Arguing applications in the Court of Appeal: Arguing interlocutory applications at the Court of Appeal is a good way of increasing your standing and increasing your experience.
