10 grounds of appeal. How should I address them?

[Sticky Note for Next 4 Tuesday Posts] You are invited to pose a question about advocacy. I enjoy responding to them. If it’s interesting and capable of an answer, I will give it a go and post it up. Queries will be anonymized unless otherwise specified.

Recently, a new practitioner wrote to me to ask two advocacy-related questions. I thought of sharing my answers for those interested. I address the first query today; the other, next time. His first question, which I edited, is below followed by my revised response:

Would it be a good approach for me to address each of the 10 grounds of appeal in the memorandum separately in my rebuttal under their respective headings? That way, it appears that I am systematically responding to each ground of appeal, and systematically arguing why the HC Judge was not wrong in each of those respects, and that appellate intervention is not necessary.

In this case, you are acting for the Respondent. I will answer your question this way:

Firstly, each ground of appeal is framed by the Appellant in a way that best expresses their position; or we should at least operate on that assumption. When you go with their frame of reference, you will not be able to reveal the full strength of your argument because you are restricted by their definition of the issues.

You should adopt a structure and frame that best suits your intended arguments. It is not simply about responding to the individual arguments, but the main planks of arguments of the appellant’s case as a whole. When you do it like that, it shows greater competence, authority, and breadth over the case.

Secondly, many judges will boil down an issue to as few issues as possible. If they can boil it down to one, they will do it. They are constantly looking for the pivotal issue that will decide the case. If you can find it for them and point it out to them, they will be very grateful and you are likelier to win (unless the point is against you, which is fine – it is still your duty to point it out).

When judges see we have anything more than 4 – 5 limbs of arguments, they will think we do not understand our case enough or lack the refinement to think about the issue. Decorating the memorandum of appeal with many grounds of appeal does not demonstrate strength; it suggests a lack of confidence. Always ask, What is the crux of the appeal here? What is the main issue in this case? See if you can give as short an answer to this question.

So 10 grounds, what do you do with it? I suggest you study and think hard about how to collapse those 10 grounds of appeal to 2 – 3 arguments. In fact, this is what you said yourself: “There will be some bit of overlapping with this approach, I would imagine, because the grounds look capable of being grouped into 3 general categories, based on the area of law they relate to.” I think you are on the right track here.

This is what your intuition is telling you. Listen to it. Do not undermine your instinct – that little gentle tug of feeling of rightness or wrongness – it is telling you something. Listen to it and trust it. Just speaking from general experience and without looking at the cases, I will tell you that is the way to go.

I don’t agree that it is systematic to respond to the grounds of appeal point by point because of what I wrote earlier. Simply responding to their framed arguments indicates you are taking the easy route out. Remember, it is our job to crunch the facts, evidence, law and make it easy for the judge.

I don’t think responding in that fashion makes it easier for the judge. It makes it more tedious. We must reduce the tedium of legal decision-making for the judge. That approach shows greater concern about what looks right than what you are supposed to be accomplishing – getting to the heart of the argument, and persuading the judge in our favour.

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