In a recent book concerning the events leading up to the adoption of the constitution by the former British colonies in North America Gore Vidal observes that it is a common misconception with respect to historical events that those events and achievements are somehow inevitable and preordained. With disarming elegance, Vidal reveals the extraordinary combination of personalities, incidents, changes of mind, realignment of allegiance, and efforts at persuasion that led to the adoption of that constitution and the foundation of that federal republic.
At one stage Vidal digresses to report that DNA testing undertaken on his descendants had confirmed that Thomas Jefferson had fathered children not only by his wife but by a slave of his household. The slave had been given as a wedding present to Jefferson by his father in law. That the draftsman of the Declaration of Independence was himself a slave owner is notorious. That he had fathered children by slaves had been long suspected. A fact that a few had known, or even suspected, but revealed by that same DNA testing, was that Jefferson’s wife and the wedding present shared the same father. One could speculate on whether Jefferson’s father-in-law appreciated that on the same day he gave away two daughters to the same man and whether he regarded the undoubted bondage into which he gave one as in any way equivalent to the likely future circumstances of the other.
And what does that have to do with appellate advocacy in the Family Court? Well as to Thomas Jefferson and his conduct within his own household, not much, but Vidal’s more general observation with respect to the misconception that events, even momentous ones, are in some sense preordained and inevitable has a relevance when one reflects upon the incremental process of change by which judges and in particular appellate judges make law. There is no warrant for assuming that all or any of the cases to which we refer and which make up the jurisprudence in this or any other particular body of law were always going to be decided in the terms in which they have been. Each such case is a particular response to questions posed and arguments framed on the basis of particular facts.
In each of those cases there has been an advocate who devised an argument and presented it with sufficient persuasive force to a bench of skeptical judges in such a way so as to convince them that his or her argument ought be accepted. Without that effort on behalf of that client that alteration to the law would likely not have taken that shape and may never have occurred. It is the intellectual exercise of isolating a point worthy of putting in issue and of persuading trained and skeptical minds that that point has merit, that is the challenge for an appellate advocate, and when taken up and pursued the reward of appellate advocacy.
The advocate before an appeal court needs no reminder that the outcome of that appeal is not preordained.
Advocacy is an art. Its object is to persuade. The most challenging and rewarding form of advocacy is that which takes place before a court of appeal.
A successful appearance before an appellate court is made so, as much by what is done before you stand up as by what you say before the court. That of itself is no different to being successful as a trial advocate or before a duty judge, but the nature of the proceeding dictates that what one does in preparation is materially different. More particularly, the nature of the appellate process, as distinct from a trial, indicates that the outcome of an appeal is more likely to be materially affected by the performance of the advocate than is the outcome of a trial.
For the purposes of this paper, I am confining my remakes to appeals before the Full Court, whether from a single judge of the Family Court or a Federal Magistrate. Primarily I will adopt the stand point of the advocate for the appellant. The respondent’s advocate has a comparable but different role to play.
The essential difference between such appeals and reviews of decisions of registrars, for instance, is that you cannot succeed on the former without demonstrating appealable error; whereas by applying for a review of a registrar’s decision, within time, you are automatically entitled to a hearing on the merits afresh, a hearing de novo. Justice Sackville has expressed it as follows:-1
“Despite the efforts of some counsel to broaden the scope of arguments, the issues on appeal are not the same as at trial. The question on a substantive appeal ultimately is whether some identifiable error has occurred which warrants the decision being set aside and different orders being made, either by the appellate court itself or by the proceedings being remitted to the trial court. The object of the exercise is not simply to traverse the issues of fact and law canvassed at the trial. An important part of the advocate’s task, particularly the appellant’s counsel, is to identify early and precisely those rulings that are challenged and the basis for each challenge.”
Putting aside the limited entitlement to lead further evidence on appeal, an appeal is conducted by reference to a record of the proceedings below. “[O]ne does not start with a clean slate”.2 The evidence is given — you cannot alter or influence it. A decision has been made. Your job as the appellant’s advocate is to find a basis by which you can persuade other judges to overturn that decision and perhaps then arrive at a conclusion different to that reached by the trial judge.
Clearly at the commencement of a trial the variables affecting the outcome are much greater than on an appeal. As often as not an advocate’s role at a trial is akin to that of the pilot of a ship. You must steer a course to an acceptable outcome for you client or safe anchorage, doing your best to avoid shoals and reefs or being caught by the tide. Many of the events that occur in the trial will be beyond your control and are often beyond your influence but by the exercise of ordinary prudence and skill many trials conclude with an acceptable outcome. The trial advocate will have exercised prudence to avoid loss as much as skill to attain victory.
An appellate advocate is engaged in salvage not pilotage. The ship has foundered on the reef. You must find the means to re-float and repair it and if you do not it is stuck fast.
Yet the tools at your command are limited. You no longer have the flexibility available at trial. You have no control over what information is placed before the Court. You have no opportunity to further test the evidence of a witness.
You must pitch your wits against a judgment. It is only by finding error in the judgment or the proceeding at trial that you can succeed.
There are three primary stages to an advocate’s preparation of an appeal:-
(1) the grounds;
(2) the written outline;
(3) oral argument.
Drawing and Settling the Grounds
When briefed to draw and settle grounds of appeal you will have the judgment, the order, the affidavits (which may or not be marked to show what evidence has been admitted at trial) and some but typically not all of the exhibits tendered at trial. Save in exceptional circumstances you will not have the transcript.
You may have been the trial advocate but you need not have been. Your solicitor may have outlined to you his or her impressions of the error made by the trial judge. Your client will often want to confer, both to exclaim at the injustice of the result or the process and to obtain your affirmation of his or her indignation together with a fine measure of the prospects of overturning the judgment.
The first duty of an advocate when receiving such a brief is to advise on the difficulties of successfully appealing discretionary judgments. Your much thumbed and well worn copy of House v. The King3 ought be reverently brought down from the shelves, opened at the joint judgment of Dixon, Evatt and McTiernan JJ4, recited from in solemn tone and explained. In any proposed appeal concerning child welfare you are well advised to conduct a second reading from the gospel according to Gronnow v. Gronnow5 and in particular the judgment of Aickin J.
This exercise is not only a salutary lesson for the disgruntled litigant and ones’ indignant instructor but a reminder to you of the nature of your task.
When you come to the actual task at hand of drawing your grounds and giving serious thought to the orders you seek you must first understand the nature of the Full Court’s power on appeal. You need to understand what is meant by the expression “appeal by way of rehearing”10.
As you read the judgment you should be asking yourself:-
(a) has the judge acted upon wrong principle?
(b) has the judge allowed extraneous or irrelevant matters to guide or affect the judgment?
(c) has the judge made a mistake of fact?
(d) has the judge failed to take into account some material consideration?
(e) is the judgment on the facts plainly unreasonable or plainly unjust such that, without knowing precisely by what means, an appellate court could infer that there has been some improper exercise of discretion?
Because you are often drawing the grounds of appeal without the benefit of the full record and you may not have been counsel at the trial, or even if you were, you have long since discarded such notes as you kept, you should check with your solicitor or with the counsel of the trial, if he or she is willing and briefed to assist, whether admissible evidence had been excluded which if admitted may have made material impact, or whether there was significant evidence touching upon an issue which the trial Judge does not appear to have had regard to in his reasons. You would also inquire as to whether any of the conclusions, whether they be conclusions of law or fact, were with respect to matters not the subject of submission or argument.
A ground of appeal is essentially an assertion of an error in reasoning or procedure which if established will compel an appellate court to consider whether to review the decision. Typically they are errors of reasoning but may include procedural irregularities, for instance, failure to extend natural justice to a party or conducting the proceeding in a manner such as to give rise to a reasonable apprehension of bias. Other examples of grounds which precedent establishes may be sufficient to found a successful appeal include errors of fact, errors of law, inadequacy of reasons, miscarriage in the exercise of the discretion, including as may be indicated by a departure from guidelines for the exercise of discretion as contained in prior Full Court decisions, or as may be indicated by an unreasonable or plainly unjust conclusion.
Errors of law may take the form of the erroneous exclusion of admissible evidence or the erroneous reliance upon inadmissible evidence, having regard to irrelevant or extraneous material, or failing to have regard to relevant evidence. The error may simply be the application of wrong principle.
An error of fact by a trial Judge will not always result in a successful appeal. In De Winter v. De Winter7 Gibbs J said:-
“The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.”
I wish to draw attention to his Honour’s use of the words “the result may nevertheless be so plainly right”. As I understand it, an appellate court must be so satisfied, notwithstanding the error of fact, before it is entitled to reach the conclusion that that factual error was immaterial and in particular, a decision is not “plainly right” merely because the decision is within the range of discretion of the primary Judge. The concepts are distinct and different. That this is so, is apparent from an earlier passage in the same judgment of Gibbs J8 where his Honour said:-
“It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary Judge.”
Furthermore, with respect to appeals from findings of fact, do not forget what the majority of the High Court said in Warren v. Coombes9, that is:-
“In general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial Judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
You may find, when appearing for an appellant, it is sometimes necessary to remind appellate courts of that passage.
You will also find that you will be asked questions such as; “Isn’t that based on findings of credit?” or “But the Trial Judge had the advantage of seeing the witnesses”. Such observations by an appellate court are reminders of the deference that an appellate court properly shows to the advantage that a trial Judge may often have over a court of appeal. There is a tension between that circumstance and the nature of the appeal process being one conducted wholly or substantially on the record on the one hand and on the other, the obligation in an appeal, such as that conducted before the Full Court, of the Family Court for the Court to conduct a “rehearing”. In Fox v. Percy 10 Gleeson CJ, Gummow and Kirby JJ said the following11:-
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of the judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawings [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.”
A little later in that joint judgment their Honours said the following:-
“Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However the mere fact that the trial judge necessarily reached a conclusion favoring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on creditability findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached the conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowance for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in face of the statutory requirement could it be) by ritual incantation about witnesses credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.” (emphasis added)
If you have drawn grounds of appeal challenging findings of fact whether they be primary findings or findings based on inferences drawn from primary finding you will need to have Fox v. Percy by your side when you draw your outline and when you stand on your feet. But be realistic. The reluctance to overturn findings of fact is real and the opportunities limited. Justice Sackville encouraged the following approach:- 12
“There may be little point in attempting to persuade the court to overturn a factual finding which is clearly supported by probative evidence and equally clearly depends upon the trial judge’s assessment of the credibility of competing witnesses.
However the mere fact that a task is likely to provide difficulty is not a reason for declining to attempt it. The argument may be all you have. If there is a clear difficulty to be surmounted, it is better to confront the problem directly. If the authorities clearly establish that exceptional circumstances are required to overturn a particular finding, accept the burden and identify those elements which make the case “exceptional”.”
You can assume that your grounds of appeal will be amongst the first if not the first part of the appeal record that the appellate court will look at. The process of persuasion starts then.
A ground of appeal is an argumentative assertion you have to establish. It is the statement of your conclusion you seek to establish. Yet you maybe confronted with drawing your conclusion before you have fully satisfied yourself that the premises leading to it can be sustained. The rules once told us that the grounds of appeal “should be set out briefly and specifically”13. There is no such rule now. Rather, there is a direction to file a notice in compliance with Form 2014. Form 20 directs15 that you “state briefly the grounds of appeal”. I do not know whether the requirement of specificity has been abandoned advisedly, but I suspect not.
There is a tension between the obvious desire to direct the Court to those aspects of specific complaint and the desire on the part of the advocate to build in a degree of flexibility so that the grounds as drawn are sufficiently broad to accommodate any alteration in the argument or indeed to accommodate an argument developed well after the grounds have been filed.
A Notice of Appeal containing a multitude of grounds is likely to be the product of an untidy mind and is likely to cause an appellate judge who opens the record to those grounds to groan in anticipation of what may follow. Likewise grounds drawn too broadly, for instance “in reaching the conclusion that she did her Honour erred”, are simply vacuous and not likely to serve any purpose, including acting as a peg onto which you might subsequently seek to place an argument.
I generally try to draw grounds that contain a mixture of very particular and specific complaint followed by generally worded grounds that may well overlap those that precede but are sufficiently general as to enable a subsequently formulated argument to be attached to them.
Sometimes you will find it difficult to settle in your own mind as to whether a particular conclusion contained within a judgment may amount to an error of fact or law or both. Do not feel pressured to make decisions as to whether a given error to one of fact or law at the stage of drawing your grounds, refer specifically to the conclusion and allege that it is erroneous. When you are drawing the ground try to adopt the trial judge’s own words as the description of the conclusion you assert to be erroneous. This expedient avoids the sometimes awkward assertion from the bench “but the trial judge did not say that”.
If you are unsure of the process of reasoning that has lead to the particular conclusion you allege to be erroneous, draw a ground that alleges that in arriving at that conclusion his Honour erred in that it is not possible to discern the process of reasoning by which his Honour reached that conclusion. Again a ground “her Honour’s reasons are inadequate” will not wash.
A ground such as “upon the facts as found, his Honour’s order is unreasonable and plainly unjust” invokes the “Oh my gosh” test and is sometimes a useful backstop.
If you are minded to allege that the trial judge has had regard to extraneous or irrelevant material or failed to have regard to relevant material do not lose sight of the definition of relevance in s.55 of the Evidence Act which provides:-
“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
In establishing the validity of such a ground the hurdle you have to overcome is that evidence is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability…”
Drawing your Outline of Argument
It is at this stage that the process of persuasion starts in earnest. Make your Outline count. You will have your own style but I suggest use Ernest Hemingway rather than Charles Dickens as your guide.
In 1984 Sir Anthony Mason lamented16:-
“…[W]ritten submissions tend to be either too lengthy so that the arguments are lost in the forest of detail, or to scanty so that the points are listed seriatim like particulars of negligence without the supporting elaboration which gives flesh and blood to the bare bones of the propositions. In the process, persuasion, which is the object of all presentation, seems to have been overlooked.”
I can think of no better general guide to the preparation of a written outline.
You may have a number of grounds you wish to argue some of them will overlap and yet others will logically be unrelated.
Make a decision as to which are your best grounds and irrespective of which number they have in the Notice, lead with them. Divide your outline under headings addressing particular grounds. Focus in each part of your outline on establishing the proposition contained within the ground that you are addressing. You may find it useful to commence by directing the Court’s attention to the particular passages in the Judgment under challenge and then asserting that there is an error and then demonstrating why it is erroneous. In the process attempt to demonstrate that the error is material, that it matters.
Each word in each sentence ought serve a function in establishing the proposition advanced.
Settling a persuasive outline may and ordinarily will take many drafts. I defy anyone to prepare a persuasive outline of argument in less than 1 full day. If the record is 3 or 4 volumes or more, as it often may be, you will probably find that it will take you 3, perhaps more, days before you have settled an outline to your own satisfaction. The process requires that you read the Judgment thoroughly and critically, that you read the record, that you are familiar with the evidence and that you have adequately researched the law both as to the process of appeal including those cases relating to the particular grounds on which you seek to rely and of course the relevant substantive legal issues.
Where you have a reported case that apparently assists you then, unless it is very recent, you should do all appropriate searches and satisfy yourself as to whether it has been referred to in subsequent decisions and how that case has faired in those subsequent references.
If you are drawing an outline to support an argument challenging a finding of fact then start with the finding. Identify the finding precisely and then clearly state the basis of the challenge. Only when that it is done should you turn to the evidence. Judges of appeal do not want to be taken all over the record either in your outline or your oral submissions unless and until you have first demonstrated the purpose for it. Point to the error, state your challenge and then set out the proof of your challenge.
The same logical process is applicable to the construction of a convincing challenge to an error of law. State the ruling. State the challenge. Take the court to the law to support the challenge.
During the course of your outline, you will make reference to passages in the judgment or particular passages of evidence and in earlier reported or unreported cases. In each case where you refer to the judgment under appeal make a reference in your outline to the volume, page and paragraph number in the record where that passage is to be found. For every piece of evidence to which you make reference again refer to the volume, page and paragraph number or line in the record. If you refer to an earlier authority give its full citation including the page or paragraph reference on which you rely. Meticulous attention to this detail will demonstrate to the court that you have a thorough knowledge of the record and you know what you are talking about.
You are not addressing a jury. You are addressing 3 skeptical judges who will not interfere with a discretionary judgment of the trial judge unless you have demonstrated error.
Disciplining yourself to prepare an outline in such a way also serves the purpose of giving you the familiarity and knowledge not only of the reasons for judgment under appeal and record but also of the relevant body of law. It will arm you well when you are engaging the court in oral argument. Justice Hayne has said17:-
“Again, the preparation of written argument takes time. It takes time to formulate what has to be said and then to edit it properly. When I speak of editing the written argument I do not mean only making sure that there are no errors of fact and typographical errors, although those are common enough in written arguments. I mean that you must refine the argument. Cut out the epithets and intensifiers and produce an argument that self-evidently stands on its own feet.”
The oral argument
Before you get to court you have to be organised. If your record has multiple volumes mark each one clearly. Have photocopies of your cases and your opponent’s cases on hand, order them in some logical way. Highlight the relevant passages and I find it useful to write the page number on which the highlighted passage appears on the front of my photocopy. Have your outline and your opponent’s to hand. You want to give the court the impression that your argument is already made. You will in fact be petrified; you will have put your copy of your argument in the folder set aside for your opponent’s. You will find yourself at the bar table checking 3 or 4 times to see if you have brought all your cases, whether you have a handkerchief and if you are like me, whether your fly is done up. You will find that you have misplaced your outline for the second time. Ultimately you find it under Volume 1 of the record on top of the rostrum. Your mouth will be dry and you will have spilt the water. Its another day in an appellate court. If it were otherwise you should not be there. This is the adrenalin that sharpens and sustains you as an advocate.
Justice Kirby has put forward 10 suggestions for the appellant advocate.18
They are as follows:-
⢠know the court you are appearing in;
⢠know the law, including both the substantive law relating to your case and the basic procedural rules that govern the court your appearing before;
⢠use the opening of your oral submissions to make an immediate impression on the minds of the judges;
⢠conceptualise the case, and focus the attention on the court directly on the heart of the matter;
⢠watch the bench;
⢠give priority to substance over attempted elegance;
⢠cite authority with care and discernment;
⢠be honest with the court at all times;
⢠demonstrate courage and persistence under fire; and
⢠explain the legal policy and principle involved in the case.
Might I suggest that the third point above, that is, use the opening of your oral submissions to make an immediate impression on the minds of the judges, is a most useful guide. You should seek to open by directing the Court’s attention to the nub of your argument and then to develop that argument in accordance with, but not slavishly following, the argument as it appears in your outline. Hopefully you will engage the attention of the court. Be prepared to present oral submissions consistent with the written submissions in the outline but placing emphasis upon those aspects that are of significance. You should use the opportunity of oral submission to direct the Court’s attention to particularly telling aspects of evidence or further passages in authorities, upon which you have relied, which you may not have quoted, but may have merely cited in your outline.
You may have the misfortune to address 3 sphinx like judges who simply allow the submissions to roll over them, but that is unlikely. What you are looking for is the opening with which to engage the judges in dialogue. You are inviting them to come and play. One of the 3 will sooner or later address a proposition to you or ask a question of you that indicates that he or she has been following the argument, has read your submissions, and may have found an apparently weak or unconvincing aspect and seeks to test you on it. This is your opportunity to respond. This is your opportunity to address that concern, seek to answer the proposition.
Watch the expressions in the judges faces. You may find yourself engaged in a debate with one or other of the judges. Be firm, stick to your proposition, if it is a good one. If you recognise that a judge has exposed a flaw in one aspect of your argument then concede it and move on. Do not flog a dead horse. If you come to the realisation that it would not matter how you expressed it, you are not at that time, going to persuade that judge of your proposition, disengage. A polite way of doing this may be to say to the judge something to the effect of – “well your Honour with respect to that aspect those are my submissions and I do not know that I can assist you any further”. That is not a concession, its using your time before the court to your best advantage. On at least 1 occasion I have found myself addressing an appellate judge in that way and leaving the court expecting to lose only to find when the judgment is published that not only have I won but the judge who I had failed to convince at that moment had upon reflection accepted the force of the argument and written the favourable judgment of the court.
On other occasions I have found that my apparently futile efforts to convince one judge have found favor with other members of the court. The message is do not lose sight of the fact that you are addressing more than one judge. There is little point in persuading the loquacious minority. As you respond to a question or comment from one member of the court keep a weather eye out for the expressions of interest or lack thereof on the faces of the others. Sometimes you will find that a response to one judge opens up a further avenue of support for a proposition you had been advancing in an early exchange with another member of the court. If appropriate make the link. The key to advocacy before an appeal court is to participate in a process of dialogue but attempt to guide or direct the discussion towards the conclusion for which you contend. With luck by that process not only may you convince the court but you may do so in such a way as to leave the court with the conviction that the favourable conclusion has been formulated by them with some incidental assistance from you. In any event you will not convince the court unless you demonstrate a willingness and capacity to respond in a meaningful way to the concerns or queries raised by the court.
Justice Hayne19 has said:-
“You cannot expect the court to remain silent during your argument, whether in a leave application or the hearing of an appeal. The court will ask questions of counsel which you must always attempt to answer as clearly and directly as you may. It is inevitable that some of the questions asked will not assist the case you are making. The court wants to know what consequences follow from adopting particular arguments. It is important to understand the limits of the principle which it is said underpin the argument. Counsel are paid to advocate a particular client’s case. The court is concerned not only to decide the particular case correctly but also to formulate principles properly. It follows that you must be prepared for questions that are designed to show whether your argument is faulty. If you can anticipate the questions and have an answer in mind so much the better. Your answer will be more direct. …”
In that same paper his Honour said:-
“For my own part I am a firm believer in the “infection” theory of advocacy. A bad point always manages to infect good points. If a court concludes that one of the ways in which the case is put is legally infirm, human nature dictates that the other methods of putting the case are examined more closely. It follows that step 1 is to jettison the point which you think is bad. If, as sometimes happens, the court picks up the discarded point and proffers it in aid of counsel, counsel will do far better to point out why that way of putting the case is flawed than they will if they simply adopt it from the bench and allow the court later to discover for itself that it is wrong.”
McHugh J in Milat v. The Queen20 observed that “the most important part of the oral discussion [is] the testing of the [written] arguments by a Socratic dialogue…”
Justice Kirby in a similar vein has said21:-
“…normally, oral argument presents a contemporary advocate with an opportunity to focus the attention of the court on the most important aspects of the case. Even more importantly, it provides an opportunity to engage in discussion with the decision-makers about the central issues and to clarify matters that may be troubling the judges.”
Plan your oral submission by reference to your outline but be ready and wiling to depart from your proposed order or plan by taking the opportunity offered by the discussion with the Court. You can only do this effectively if you are able to address the court from your notes and maintain eye contact. If you spend your time in oral submission reading to the court you have probably wasted your time.
As often as not it is by the process of the discussion that takes place between the advocate and the bench in the course of oral argument that the decision makers are persuaded of the force of the written submissions. You can only engage in this discussion convincingly if you have command of the record, the judgment below, the relevant authorities, your own argument and your opponent’s as well. You will only be convincing if you demonstrate judgment and quickness of mind by your response to questions or comments from the court. Neither is possible without proper preparation.
Sometimes you will be assisted by a familiarity with the bench and the particular philosophical stand points or personalities of the members of the court. Some of this comes with time and exposure to the court. There is an advantage in being familiar with the court. The court’s familiarity with you may or may not work in your client’s advantage. That may depend of whether the prospect of your next appearance induces a bout of nausea or some less violent response.
Appearing for the Respondent
In the best of worlds a respondent to an appeal should engage counsel to consider the notice of appeal within sufficient time to consider whether cross appeal or perhaps notice of contention should be filed within the times provided by the court (with respect to cross appeal). Such documents may assist in focusing the appellate court’s attention on issues that the respondent regards as of importance.
It is also the unfortunate fact that often judgments that contain error do not only contain errors that prejudice only one of the parties.
Often counsel for the respondent needs to be more flexible than counsel for the appellant. It can be that the task of a counsel for the respondent is indeed more difficult than that which confronts the appellant’s counsel.
By the time the respondent’s counsel has risen to his or her feet the argument may well have moved on from where it stood when the outlines were exchanged. Some of that shift in ground will be to your advantage. Other shifts will have intensified old or brought on new problems.
If you do not have regard to the course of the argument your address to the court will appear unresponsive to the issues in that appeal. Ordinarily it will be useful to commence your response by seeking to address the main arguments that have emerged in the appellant’s oral submissions. Link your response back to the relevant passages in your outline.
Be alert for incomplete references to the relevant evidence. Even without consciously seeking to mislead, counsel for the appellant may fail to refer to a passage of evidence that when properly considered undermines the challenge to a finding. It is your job, as the respondent’s counsel, to draw the court’s attention to that passage and demonstrate its significance. Ordinarily this should be done without any suggestion that counsel for the appellant has intentionally mislead. You do not need to use a tone of righteous indignation. Appellate courts do not want to be cast in the role of refereeing brawls between counsel.
You should seek to know the record better than anyone else in court.
Reciting the precautionary passages from well worn authorities concerning appellate court restraint will not of itself serve any purpose without demonstration as to why the trial judge was entitled to his or her conclusion even if all 3 members of the court might not have come to the same view.
In your preparation seek to find other reasons for the trial judge’s conclusion. You may seek to uphold the judgment on that basis, notwithstanding the error. Compare the appellant’s argument with the argument made at trial. A failure to raise an argument at trial may preclude it being raised on appeal or the manner in which the appellant conducted the trial may for other reasons preclude issues being agitated on appeal.
Sometimes much can be salvaged by a respondent in the argument on the re-exercise of the discretion. The gain made by demonstrating error can prove illusory or of little ultimate value after a well structured argument by the respondent that persuades an appellate court to give more weight to discretionary considerations that were not regarded as of much significance by a trial judge.
Conclusion
What I have set out to do in this paper is offer an approach to appellate advocacy that has been helpful to me. I know that there are others who carry out the role with more polish and skill than I manage. I am confident however that there are few who take more delight or obtain more thrills from the challenges and the risks and the joy associated with that role. Engaging an appeal court in the course of oral argument and acquitting ones self well, is doing what being an advocate is all about. I am an enthusiast and recommend the experience to anyone who enjoys advocacy. Justice Kirby expressed it as follows:-
“It [the purpose of advocacy] is to persuade the minds of others to meet in agreement with one’s argument. The terrors of advocacy, especially for the young and inexperienced, remain the stimulus for each succeeding generation of advocates as they rise to address decision-makers. The joys of advocacy, after a day in court when the tasks have been well and skillfully performed, particularly when crowned with success, are greater than virtually any other vocation can offer — a heavy mixture of intellect, emotion and drama — sure to get the adrenalin flowing.”
Timothy D North SC
Footnotes
- “Appellate Advocacy” The Hon. Justice Ronald Sackville (1996 — 97) 15 ABR 99 at 100.
- DF Jackson QC “Appellate Advocacy” (1992) 8 ABR 245.
- (1936) 55 CLR
- at 504 – 505
- (1979) 144 CLR 513
- See CDJ v. VAJ (1998) 197 CLR 172
- (1979) FLC 90-605 at 78,092
- at 78092
- (1979) 142 CLR 531 at 551
- (2003) 214 CLR 118
- at [25]
- Sackville at 106
- Order 32 Rule 2(7a)(b)
- Rules 22.02 and 22.7
- At Part D
- The Role of Counsel and Appellant Advocacy (1984) 58 ALJ 537 at 541.
- “Advocacy and special leave applications” speech to the Victorian Bar — Continuing Legal Education, 22 November 2004
- “The Future of Appellant Advocacy”, the Honourable Justice Michael Kirby (2006) 27 ABR 141 at 142.
- op cit
- (2004) 205 ALR 338 at [35]
- “The Future of Appellant Advocacy” at 145
