In your experience, what are the most common mistakes lawyers make in written submissions?
I believe that one of the main issues with written submissions is not answering the main question, not arguing the main point. What I mean is, advocates are usually quite aware of the strong and weak points of their case. But instead of confronting the weak points (and by doing that, responding to the other side’s argument), some written submissions seem to only focus on the strength of the argument. Sometimes both sets of submissions leave the decision-maker unsatisfied with the thrust of the argument and thus are rendered pretty much superficial or even useless. I have experienced that personally while on the Bench as a Registrar.
How do you approach the interconnection between affidavit evidence and submissions to ensure the argument and evidence work together cohesively?
I was given a very good advice a long time ago. Start a new brief with closing submissions. Think of what you will need to argue before a judicial officer, and take it back from that point. Affidavits should not just be your client’s stories in isolation. Affidavits should provide support to your arguments. So, think of the arguments first. Then seek the evidence to support it. That is why the Bar, and the Bench, advocate for early briefing. It is normally the Barrister who is on their feet arguing the case. That Barrister should ideally be participating is settling affidavit evidence.
What practical strategies help lawyers ensure their submissions are clear, persuasive, and easy for the decision-maker to follow?
My answer concerns written submissions. Clear thinking makes for clear writing. Make a “dot point” map – what needs to be proven? What evidence is there, both oral and documentary, to support your point? I would argue that shorter paragraphs are easier to follow. One paragraph for one point. Don’t combine more than one issue. Don’t overplay your hand. Know where you need to end up, and get there in a logical fashion. Structure the submissions, be that chronologically or event-based. Don’t jump between with issues and witness evidence.
What does “being flexible” look like in advocacy, particularly when a hearing does not go as expected or the bench raises unexpected issues?
Don’t memorise your submissions. That makes it harder to pivot. Just have bullet points. Use larger font – remember, you will be standing. Make sure the other side’s submissions are being recorded – by you or another solicitor. Ideally, your own submissions and interactions with the Bench should also be recorded by someone. If it is just you there, try noting down the main points. Don’t feel like you have to reply to the Bench immediately. Rather take your time and get it right. The Bench will wait. They are not asking those questions to embarrass you. They simply need to know the answer. They are following your arguments and doing a lot of thinking at the same time – so if something occurs to them, they ask you.
From your perspective, what does it mean to truly “know your matter”, and how does that translate into more confident oral advocacy?
Leaving aside the inevitable time pressures, ideally you need to have read all of the materials (twice). You need to know where to find the most important parts of evidence, in the order you need them at the hearing. Use tabs and dividers. Colours definitely help. If there are questions that you have at the end of reading the materials, that means the judicial officer will most likely have the same questions. Ask those questions of your client. You must aim to have no surprises at the hearing. Make a chronology – not for the Court, for yourself.