[Sticky Note for Next 3 Tuesday Posts] I invite advocacy questions because I enjoy responding to them. If it’s interesting and capable of being answered, I will give it a go and post it up here. Queries are anonymized unless specified otherwise.
The second question posed to me by a new practitioner that wrote to me about his advocacy issues, is as follows and my response comes after:
Since parties are required to file an executive summary (of 5 pages or less) of the written submission, is it still important to keep the primary written submission as concise as can be, or is it rather okay to have it a little “fuller”?
The rule about legal information we consume and generate is to always be cogent, concise, summarized, and immediately deployable. That’s how we should ideally have our legal information ready. Even if we don’t get it that way, we must reorganize the information we receive so it becomes this way. So we need to be thinking about these legal matters and constantly boiling them down, reducing them, compressing them, so that it is handy, mobile, and can be pitched like a baseball pitcher in various ways, spin ball, curveball, fastball, etc.
An executive summary (ES) is requested because of the failure of the written submission (WS) prepared by lawyers to be an ES. That is what the judges really want – the ES. Your submission must come as close as possible to the ES. And think about it – why does the judge want that? Because they want the distilled legal thought after your analysis and thinking. They want the core, the essence of the dispute. They are not interested in anything else that is not relevant to come to a decision. That is our job and regrettably many fail at this out of fear, insecurity, or wanting to assure themselves about the work they are doing.
But since we have come to this point where a distinction is made between an ES and a WS, I would suggest it be structured like this: The ES are your propositions with a reference to the evidence/authority. ES should be the ultimate distillation of your legal arguments. WS is where they are cogently articulated. ES is a 5-minute-teh-tarik-session you have to get your points across. WS is a 20 minute sirap–bandung–sembang. So an ES would have a structure like this:
Proposition A: P’s SOC may be struck out for abuse of the court process. Power: O 18 r 19(1),
Proposition B: The abuse of the court process is filing a time-barred claim: Legal authority.
Proposition C: Time barred claim: see paragraphs XX – XY of Statement of Claim/Authority (which are not reproduced).
Conclusion: P’s SOC should be struck out with costs: legal authority where this was done.
Ideally, ES is putting down the propositions of your argument with a reference to where the support comes from. There is no elaboration of the argument. That is for the WS. In the WS you would summarize the legal authority and discuss it (B). For (C) you would set out the impugned paragraphs.
I hope the above helps give you some ideas and direction about how to think about your submission. Please feel free to reach out if you have any more issues.