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GUIDE TO WRITING SUBMISSIONS

Why this guide?

This guide addresses the following needs:

Being explicit about the form requirements of written work in practice-

centric units.

Describing the process involved in writing, expressing, formatting and

submitting legal arguments;

Providing scaffolding instructions on how to write an appeal case

submission.

1. Prepare you submission e-file
The first step in preparing written submissions is to fill out the variables in your
precedent document. Filling out the submissions precedent may seem clerical
and bureaucratic but it is vital obtaining a timely hearing in court and ensuring
opposing counsel and the Judge have read and understood your
submissions. Explaining to your client why there has been a stay in proceedings
because of a form error is embarrassing, expensive and can detrimentally impact
on your career.

In this course we will use the High Court precedent documents. You will find
these at - http://www.hcourt.gov.au/registry/filing-documents/forms
Download the correct document, then access the seminar information for the
relevant week, either in the Synopsis or on MyLo. Make sure you have the right
details to fill the submission precedent with. Remember that each separate case
listed for hearing must have its own authorities cover sheet. Now:

A. Form & Variables
Courts are very finicky about form and procedure. Check and double check you
have inserted the right provisions and deleted any non-essential information.
That requires, on each case-file in the folio, that you:

i. Fill in the party names. If this is not done your document may not be
filed or listed. Worse still it will not be accepted into Court.

ii. List all parties. Make sure that, if there are multiple parties you fill in
the party names separately under the Applicant or Respondent titles.


iii. Insert case file no. Make sure you have included the right case file
number. Your client may actually have several cases listed, some against
the same opponents. If you dont check the case file number allocated to
the matter at hand you may find that it is not properly listed or there are a
stay of proceedings.
B. Grammar & Expression.
Check your spelling, grammar and expression. Your sole physical product as a
lawyer, are your your written words. These should exhibit a level of
professionalism and attention to detail above and beyond the general public;
otherwise what is your client paying you for?

C. Format.
Court registries will also reject documents that are not properly formatted.
Continuity in formatting ensures quicker processing but also equality amongst
pleadings party A has as much space and ability to express themselves in it as
party B. Make sure you adhere to the formatting requirements. You will find
these in the Seminars folder on MyLo.

D. E-file conventions.
Make sure your electronic document is correctly named for e-filing. A number
of jurisdictions now accept electronic submissions. However, for them to be
properly processed the electronic file must contain the right naming convention
so they are associated with the right e-file. You will find the e-file naming
conventions in the Seminars folder.

You are now ready to analyse the issues and write your arguments.

2. Writing your seminar submission
Before you begin writing, or analysing the issues, make sure you are well
grounded in the facts of the case (hypothetical).

A. Facts
Do not restate the facts (in your Argument section). You are not expected to
recite the facts either in your seminar written or oral submissions or your
exam. The facts of this case are agreed (as is the case in most appellate trials and
many public law cases). Only highlight facts as a way of making out an element of
an argument or in the context of your application.

B. Issues
Submissions to Court are presented in the form of questions and the arguments
by the parties relating to those questions. It is for the Court to give the answer to
the questions having considered the arguments of both parties.

Ordinarily the questions are determined by the parties pre-trial as issues they
cannot resolve amongst themselves, or require the Courts determination before
they can resolve a larger dispute. In the hypothetical we have provided them to
you.
Form of issues. Issues often are inter-related and overlapping forming part of
an overarching argument or as a consecutive series of sub arguments.
Subsequently they are generally presented in two ways:
i. A series of questions leading up to a conclusion; or

ii. A cascading series of questions that will individually result in an
outcome if answered in one way (if the first question is answered YES
then the Applicant wins the case, but if it is answered NO, then the
parties ask the court to consider an alternative argument which if the
court answers one way may mean the Applicant wins and so on and so
forth.
In practice both parties include the issues in their written submission. On rare
occasions they are differently phrased, but generally they reflect the agreed
questions to be addressed by the Court and are thus identical.

Do not restate the issues (in your Argument section). In our hypothetical
submissions, to save space, you do not need to re-write the issues into your
Arguments - either as headers or within the arguments themselves. However,
you will need to address your arguments to these issues in the same order and
using the same number as listed and it may help to use abridged issues as your
headings .

C. Argument

Following the statement of issues (remember you do not have to re-state the
issues in this hypothetical exercise) written submissions will ordinarily contain
the argument of the particular party with standing in the matter. Ordinarily this
occurs as follows:

The pleading party (Applicant/Appellant/Plaintiff) will make submissions;

Then the responding party (Respondent/Defendant) will enter

submissions in reply; and

The pleading party will have a chance to update their submissions or

make counter-submissions in reply to the Respondent.

This process will go on until each side is satisfied their argument is the one that
they will make in Court.

In our hypothetical situation each party will make their written submissions at
the same time. While this makes things easier and more efficient it means that
the mapping exercise discussed below is more important.
The purpose of arguments
Written submissions contain the skeleton of arguments that will be presented in
court and a list of authorities that will be cited. This is so that both the bench (the
Judge or Judges) and the bar (the counsel making appearances on behalf of the
parties) are fully apprised of all the law and arguments being made and are on
the same page. The role of the Court is to make determinations on the law and
evidence and the role of the barrister is to inform the Court about the law and
their clients argument about how it is to be interpreted.

Be aware that the primary role of both bench and bar is to the administration of
justice, not any individual person. That means if an argument is going to be
raised, the Bench and the opposing counsel need to be prepared for it, and to
have any cases you rely on to hand. Otherwise how will they know that what you
are claiming is the law, actually is the law?
Form of arguments
Headings. Your arguments should be divided under issue headings. We would
suggest you use titles, paraphrasing what the issue is about. i.e. Do the parties
have standing to bring an action under the Administrative Decisions Judicial
Review Act could be suitably paraphrased to Standing. You may also wish to
use sub-headings relating to the elements that you are attempting to establish to
help guide the flow of your argument (i.e. A special interest, Matter,
Justiciability).
Authorities. Your arguments must be qualified by relevant authorities.
Authorities may either be footnoted, or cited in text - different courts have
different form rules. All courts require an authorities coversheet. The
authorities coversheet indicates to the judge (or seminar leader) which cases
you will rely upon and allows her or him to have them to hand when you make
your oral submissions.**

In our hypothetical we would prefer you use in-text authorities given the
limits on word count.

Once you have properly cited your authorities on your authorities

coversheet you may use in-text short-hand to refer to these authorities in

your arguments. That is ([Case name],[page number]) i.e. (R v. Burgess,

24).

You may have some authorities which have identical names; in that case
include the year i.e. (Commonweath v. Tasmania (1983), 453).

You can use accepted legal short-hand for some titles. These include "R"
for "The Crown", "Cth" for "Commonwealth" and abbreviated state names
i.e. "NSW"/"Tas"/"Qld","Vic" etc.

Some cases are known by a short-hand published by the Court in its

judgment. You will find this in the brackets after the party names i.e.
Commonwealth v Tasmania ("Tasmanian Dam case") (1983) 158 CLR 1.
In that case you may use the allocated shorthand in your arguments. i.e.
(Tasmania Dam, 351).

** Realistically you will complete the authorities coversheet after you have
written out your submissions and determined what evidence base you will rely
upon for your arguments.

For the present it is worth noting that citations (year, report, volume, start
page) are extremely important. If you cite a case from the Commonwealth Law
Reports (CLR) that is the case you must have to hand when you are presenting
orally and that is the case you must have actually quoted from.
Page numbers differ between reports, so if the judge has the CLR, because that is
what you cited in your authorities list, but you only have a downloaded copy
from AustLII (which is in an unreported format, not in the CLR format) then the
judge will not be able to follow your arguments. Avoid paragraph numbers
unless absolutely necessary - i.e. there is no reported judgment. Some reports
start paragraph number at the beginning of the case and continue them
incrementally throughout. Other reports begin paragraph numbering afresh with
each judgment.
Matching and confirming your citations is a serious business. If you cite cases
in your written submissions which do not match the page numbers before
the Court on the day then they would, ordinarily, be struck out. In the
hypothetical mini-moot you will lose marks or be asked to move on to a case you
have actually properly cited.

Developing your arguments
Under your argument/issue heading you must set out your written argument
and authorities. This takes time and thought. While the popular and perhaps
romantic perception of lawyers is as oral advocates, realistically this only reflects
a very small proportion of the work that goes into any one case.

Most of a case occurs outside of court, sending communications between parties,

writing and exchanging documents, negotiating, researching, analysing and
preparing (preparation, preparation, preparation). The same is true of your
seminars.

Whilst ultimately you will write opinionated arguments (that is the point),
preparing that one sided argument means taking into account all the counter
arguments and responses to your argument as well as predicting how the other
side and, ultimately the judge will view the issue.

This is very similar in fact to preparing for a problem-solving question in law
school. That is:

i. Analyse the issues objectively.
ii Map out the argument you wish to make.
iii. Implicitly or expressly deal with counter arguments or alternative
lines of reasoning.
iv. Provide authorities (a legal evidence base) to your argument.
v Write your arguments as a skeleton of the oral submission.

Map your argument

Now that you have a good grasp on the issues you need to set out the line of
argument relating to each one. In a famous U.S case Judge Cordoza described the
role of a judge determining which submissions to accept as as follows:

It is easy to cite dicta that seem to give [each sides arguments]
prominence There are cross-currents and eddies in the stream. [The
judge must] follow the main course.
Loucks et al. v. Standard Oil Co. of New York (1918) 224 N.Y. 99
Your role as an advocate is to scout ahead, map out the stream and find a way of
convincing the judge that your course is the correct (main) one. How you do this
will depend on the nature of the issue and the nature of the law.
For instance if there is an accepted test you state what the test is, then structure
your line of argument around the elements of that test.
Alternatively if there is a debate about the law or test, then you might start by
highlighting the debate, stating the test you prefer, making an argument as to
why it is the right one, then going on to apply the facts to it, and then in the
alternative apply the facts to the test you dont prefer, in a way that still results
in the outcome you want.
This is very similar to how you would map out a traditional problem solving
answer.


At each juncture in your argument there will be a counter argument which you
need to deal with.

Counter-arguments and opposing lines of reasoning
By the time you have reached the point of formulating written submissions the
following must have happened:

An action or exercise of power by one person/body that affects another;

A denial by the affected party as to the legality of that action or exercise;

A disagreement between the parties about the status of the law which
cannot be resolved between the parties themselves; AND

The agreement of the Court that the law is uncertain, or, at the very least
it is not immediately obvious how the law should apply to the facts.

In other words there are no court cases that are one sided.

Your client will generally view the matter from their perspective. Recognising
there is a contrary perspective potentially a valid and strong contrary
perspective is central to your role as a lawyer. To effectively represent your
client you must predict, respond and (hopefully) overcome the other sides
arguments. That is why problem-solving skills are so central to legal education.

Written submissions are not, however, problem solving questions. They are,
naturally, opinionated and one-sided. You are trying to convince the judge your
view is the right one. Hence you do not write in an openly objective way i.e. the
Applicant has a strong argument that . Instead you must choose how to
recognise the other sides argument without elevating it beyond your own or
providing it strength. In fact, you must expressly or impliedly recognise it and
then go on to undermine it. There are a variety of ways to do this you must
choose strategically which one is best including, but not limited to:
Silent implication. Not mentioning the counter argument but implicitly noting
there are weaker alternatives. i.e.
Mason Js test is the accepted test for nationhood power as was recently
confirmed by both the majority of the High Court , and Hayne J in dissent,
in Pape.
This implies there may be an alternative test, but does not credit it with any
compelling strength whilst solidifying your own position as the correct law.
Directed implication. Mentioning the two (or more) possible lines of reasoning,
but not openly conceding that the other alternative line of argument is applicable
to these circumstances. i.e.

There has been disagreement about the source of nationhood power and
subsequently the scope of legislation made under it. However, in Pape the
Majority of the High Court, clarified this uncertainty by articulating that
the power finds its source in ss 61 and 51(xxxix) alone (see French CJ at
41). As the High Court now accepts that nationhood power derives its
constitutional validity from executive power, it must also adhere to the
same constraints namely the restriction on punitive measures.
This recognises disagreement, implying the decision could go both ways
(without openly stating that), but pre-emptively blocks the line of reasoning that
goes against your client.
Express recognition. Expressly flagging a counter argument potentially one
that reflects the contemporary majority view of the law but then going on to
explain why it should not be favoured. This is important when you wish to rely
on dissents or more convention / structural / policy based arguments and
ensures you dont look like you are putting bad law to the Court or making
unrealistic or unsustainable arguments. i.e.
Whilst the Majority in Pape determined the nationhood power permitted
intervention in that specific case it must be noted that: Pape must be
understood as a case where all states agreed the crisis was national in
nature; the Majority warned against an overly broad reading of the power
where this was not the case (French CJ at 41); and, as Hayne J (at 245)
emphasised, Mason Js test must be applied in its entirety where states
can otherwise deal with the crises, the Commonwealth lacks power. The
current matter is one of those situations alluded to in Pape and Hayne Js
opinion in that case should be preferred.
This recognises there is a more obvious way to go than the way your client wants,
but encourages the Court to stop and consider whether it is the correct way in
these circumstances, strongly arguing that the other path is the wrong one. Note
how the paragraph is opened with a qualifier ("whilst","whereas", "although")
immediately framing the ostensibly stronger proposition in a negative way.
Provide authority for your argument
In mapping your argument you should have identified each point at which you
are stating what the law is (an assertion of legal principle) or how the law should
apply (an assertion about legal application). As with any intellectual exercise or
technical discipline the strength and weakness of such assertions must be tested
against a discipline specific evidence base. In law this evidence base is generally
made up of legal authorities (cases, statutes, secondary legal sources) - as
distinct say to science which relies on data or existing literature. The more
compelling evidence base the more likely your line of argument will be seen as
the correct and main one. That means having a good understanding of the
authorities **.

At this point we expect you, at a minimum* to know and be able to argue
based upon, the authorities listed in the synopsis.

The next level of research would involve reading and citing the
authorities listed in your casebook.

You might also wish to search the legal databases for specific materials
that might help you resolve a contentious point.
o i.e. If you are considering whether schedule 5 of the Broadcasting
Services Act is inconsistent with a state act, consider whether any
other courts have made rulings on section 109 of the Constitution
as applied to the Broadcasting Services Act.

o Indeed, you may find that a court has made a decision about
inconsistency with respect to Schedule 5 which is contrary to your
line of argument. That will then change how you write your
arguments.

o Alternatively it may suit your line of argument, but only if you
can establish the two state acts were similar.

* We would expect: a pass to credit answer to rely only on the synopsis/lecture
cases; a credit-distinction answer to rely on these plus the casebook; and a
distinction to high distinction answer to rely on additional research.

** Note. As a warning do not ever cite authorities you have not read. If you just
copy a citation from a textbook without reading the case, knowing the facts, the
reasoning and the majority and minority judgments then you are unable to prove
to the Court that it is the correct law. The point of advocacy is to discuss with the
bench the strengths and weaknesses of the arguments presented. That means
engaging and testing the evidence base.
Expect to be asked questions about your cited cases; if you dont know about
the case or are unable to take a judge to a relevant passage you will lose marks.

It is better to have fewer authorities that you are well versed in than many
authorities you are not.

Writing your arguments
There is no one foolproof way to write winning arguments. If there was then
everyone would do it that way and we wouldnt have to go to court. However,
there is certainly a set of criteria that the Court is looking for and that will help

your argument gain traction. The Chief Justice of the Supreme Court of Tasmania
states the following in Practice Direction 1, 2014:
The written submissions required are not full submissions and will
supplement, not displace, oral argument. They are to be regarded as a
skeleton of the oral submission, stating carefully and concisely the
propositions to be argued, and the authorities to be relied upon in support
of them, plus, where appropriate, references to the transcript, exhibits or
other documents.
You must find a way that provides a framework to your oral submissions that is:

Clear it should make sense to the judge and opposing counsel on the first
reading;
Logical an argument that does not make sense will not convince the
judge your view is the right one.
Structured this relates to logicality, and clarity. The more structure you
can provide, the easier the argument is to follow and understand.
Concise written submissions are not an essay. They need to flag your
clients position, grounds, authority and points that you wish to raise
before the bench. It helps guide proceedings and allows the judge and you
to move through the issues and grounds efficiently during oral proceedings.
You will expand on your written submissions in your oral argument.
Informative Flagging to the Court the uncertain areas of the law that
arise from the issues put to it and how you will attempt to address them.
Evidence based Any assertions about what the law is or how the law
applies, must be informed by proper evidence ordinarily case-law or
legislation.
Opinionated this is where written submissions differ from a written
problem solving question, which requires objective consideration of both
sides (i.e. how a Judge would write their judgment). Your submissions
reflect the position of your client and are therefore one sided only. That is
not to say you dont take into account the other side that is vital and in
fact the process of preparing your written submissions is almost identical
to how you would approach a problem solving question but your
arguments are very much written as if your argument is the correct one.

Good luck!
(BG 2014) [Updated 29/7/2015]