The primary aim of written submissions to persuade the Judge to decide in your favour. This means doing two things. First, explaining your case (both factually and legally) to the Judge. Second, persuading them that you are right.
It’s important to remember that the second part — convincing the Judge you’re right — is dependent on the first. It’s hard to convince anyone of an argument they don’t understand.
It’s also important to remember that explaining a case is quite difficult. The main problem with most bad written submissions is that they’re hard to understand.
As a useful point to aim at, remember that if the Judge was given your written submissions to read (but nothing else), having read them she should:
- Know basically what has happened
- Know what issues she will have to decide (both factual and legal)
- Know what you say about those issues
- Be convinced you’re right
There are any number of ways that this can go wrong. Often the problem is not so much with writing written submissions, but the writer’s underlying understanding of the case. If you don’t know what the issues are and what you should say about them, it’s going to be tough to write submissions. Although, having said that, lots of us use the process of writing written submissions as a way of working out exactly what a case is about. This is fine, provided you do fully understand the case when you’re finished.
Even if your understanding of the case is solid, it’s still possible to write very bad submissions. When in doubt, its best to simply focus on explaining your case as plainly and simply as possible. And being as concise as possible.
This is partly because of how advocacy affects tribunal decision making. In most cases it doesn’t matter much — the facts and law are clear enough that the tribunal will make the same decision regardless of the advocacy. Of the remaining cases, most are lost by bad advocacy.
This is normally a failure to either explain the case or bring the attention of the tribunal to the relevant evidence. For example, the real problem with the dismissal is a failure to investigate the alleged misconduct. But it is not a total failure to investigate and, superficially, the right steps seem to have been taken. If an advocate spends all his time attacking the conduct of the disciplinary hearing (which wasn’t actually unfair) or is simply incoherent when discussing the investigation, it is all too easy for the tribunal to miss the point.
A small number of cases are won by good advocacy. A superb cross-examination of a difficult witness or a persuasive oral submission. This is the sort of thing we all aspire to and tell stories about later. As a beginner or a self-represented litigant, however, it’s almost certainly better to focus on the basics. Make sure you’ve set out your case clearly so the tribunal can easily understand it and you have done 90% of what anyone (even the most formidable QC) could do.