Written submissions are a useful advocacy tool, but it is not always clear when they should be used.
This is an area where personal style and preference matter quite a lot. Both authors use written submissions a lot. Other advocates use them less. But, bearing that in mind, here are some guidelines:
When you have to…
The tribunal may order written submissions. In that case you will have to do them.
This is not as potentially onerous as it sounds. Such orders are unusual, and will generally only be made where the parties would have wanted to do written submissions anyway.
The situation is different on appeal. The procedural rules in the EAT and above require submissions in writing in all cases. Having said this, it would be a brave person who wanted to run an appeal case without a written skeleton anyway.
In complex cases…
Where a case contains complex issues of fact or law, written submissions are invaluable.
The longer and more complex a case, the more difficult it is to deal with it in oral submissions alone. A written document gives structure and detail. It also gives you a second bite at the cherry. The tribunal will take your written submissions back to their deliberations and may be persuaded long after the advocates have finished talking.
Written submissions also allow you to focus your oral submissions on the most important points. Big cases always have peripheral, but significant, points in them. These can often be dealt with by saying “I cover with this in my written submissions, unless the tribunal would like me to go into it now?”.
Where they help you…
Often, the exercise of writing down exactly what you want to say to the tribunal, in complete sentences, with relevant extracts from the law and evidence, is the best way of preparing yourself.
It is even, if you have time, worth considering doing the written submissions first. Once you know what you want to be able to say at the end of the case you will know what evidence your witnesses need to give; what cross-examination needs to be done; even what disclosure needs to be requested.