It has been two decades since a paper by Ontario Court of Appeal Justice John Laskin on how to write an effective factum was published by The Advocates’ Society Journal.
It has been two decades since a paper by Ontario Court of Appeal Justice John Laskin on how to write an effective factum was published by The Advocates’ Society Journal.
The straightforward suggestions included in “Forget the wind-up and make the pitch” are still easy to access since the paper is posted under the publications and speeches section of the court’s website.
How frequently the advice is actually followed, however, may be another matter.
For example, written submissions in every hearing before the Supreme Court of Canada are available on its website. Even a brief perusal of factums (or facta) in current cases to be heard by the highest court in the country shows that common bad habits pointed out by Laskin in his 1999 paper are still alive and well.
His advice, at its core, is about the importance of readability in a factum and clearly defining your argument at the beginning. A passive voice, legal jargon and overstatements are some of the things to be avoided. As well, just because there is a maximum number of pages permitted by a court does not mean a factum has to be that length.
It is extremely rare that a factum filed at the Supreme Court is shorter than the maximum permitted and, even at this high level, the submissions can be difficult to follow on first reading.
One of the reasons that Laskin’s unofficial guidelines for effective factum writing are not always followed can be explained in the way these submissions are approached, suggests Toronto lawyer Caroline Mandell.
“Lawyers are professional writers. But they need to focus their thinking on the readers,” says Mandell, who is a legal writing coach and was counsel for a decade to the judges on the Ontario Court of Appeal.
“You can assume that everyone has the best of intentions and wants to bring their ‘A’ game. However, we tend to grade ourselves more generously than we do for other people,” she notes.
According to Mandell, that may account for “the gap” in what a lawyer hopes to accomplish when starting a factum and the actual final product that is submitted to a court.
“We need to put ourselves in the reader’s head, before we even go to the keyboard,” she adds.
For written submissions in a legal proceeding, the most important reader of course is going to be a judge or a panel of judges.
“They know the law, but when it comes to your case, they are a lay reader. Lawyers need to understand that judges have an enormous cognitive burden. Judges want help to make a good decision and the factum really matters,” Mandell says.
Greg Temelini, a partner at Wright Temelini LLP in Toronto, says that while writing an effective factum is the goal of every lawyer, that does not mean it is an easy task.
“Written advocacy is probably the toughest job for a litigator. The glamour is in the oral argument, but the written advocacy is usually more important,” says Temelini, who is the moderator of a Law Society of Ontario event on factum writing to be held on April 30.
“The overview is essential. It sets the road map. Judges need to know where you are going to end up. I don’t just want judges to understand the case but also how I see the case,” Temelini says.
Mandell agrees the significance of the overview section cannot be overstated.
“It is the single most important real estate in your factum, yet it is squandered more often than not,” she says. As a judge once described it to her, “trying to navigate through a poorly done overview is like putting together a jigsaw puzzle without having the picture on the box,” she says.
The overview is the first opportunity to outline your core argument about what the case before the court is about, says Denise Sayer, a lawyer at Paris & Company, a business litigation firm in Toronto.
“It is all about the narrative. The overview and the facts are the first two things the court will look at. You need a compelling narrative so, from an equity perspective, the court will think your client should win. I try to tell a story that I can explain to my mother, who is not a lawyer, says Sayer, who is among the panel members at the Law Society of Ontario event along with Mandell.
Structuring the facts section effectively is also essential, she says.
“There is always a human element.”
According to Sayer, even commercial litigation that may appear somewhat dry on the surface will include some human back story that can be highlighted.
“You are wasting an advocacy opportunity if facts are treated neutrally,” Sayer suggests.
At the same time, she says, this does not mean cherry picking what details you include.
“You do nothing for your client by hiding your bad facts. As well, to build credibility for every single factual point, there should be a footnote to verify it,” Sayer states.
Temelini says going through the record before writing the factum is the “long division” that is required in the facts section.
“Emphasize the facts that you believe are central to the outcome. It is about fitting them into the framework,” he says.
All three lawyers agree that the number of issues contained in a factum should be streamlined as much as possible.
“Be upfront and deal with the central issues. You cannot possibly deal with every single thing,” says Temelini.
Judges want to know what the “deep issues” are that need to be determined, says Mandell.
“At the issues stage, it is helpful to explain also what they do not need to decide,” she adds.
Writing style and its importance is emphasized a number of times by Laskin in his paper.
A common mistake, even now, is a reluctance to write in as simple and clear a fashion as possible, says Mandell.
“A myth of legal writing is that complex sentences will make the writer look smart. The opposite is true. Take your adjectives out. Never write that something is obvious. Understatement sells better and it leaves the judge with some analytical work to do,” she says.
If two lawyers are working on a case and an associate is assigned to do the bulk of the writing of the factum, Sayers says, it is important for both counsel to meet together before anything is written.
“I think it is good to sit with a junior at the beginning and do an outline. Figure out your theory of the case. What is your pitch and then sit down to talk again after the first draft,” Sayers says.
It is important to involve associates in the factum writing, says Temelini, even if it ends up being more inefficient.
“Sometimes, where junior lawyers struggle is when I ask them to explain the case to me in two sentences. But they have to be writing; it is the only way they are going to learn,” he says.
