Written Opening Submissions at Trial 453 practitioners will present a case in precisely the same way, or agree on all pdints as to how a case may be most effectively presented. We would not expect universal agreement with all the points we embrace. Much may also depend on the particular case. [10.005] The Practice Directions also provide detailed guidance regarding written skeletal arguments on appeal, which are set out in Section D of this chapter. B. WRITTEN OPENING SUBMISSIONS AT TRIAL [10.006] We start briefly with the formal requirements in relation to opening submissions for trial. After that we turn to the all-important question of crafting the content of the written opening submissions. We then deal with closing submissions. Following that is a brief section on written submissions for appeal. 1. Formal requirements for opening submissions at trial [10.007] Opening statements are required for the trial of all actions commenced by writ in the High Court. 3 In the Supreme Court, all documents for use at any court hearing, including skeletal arguments, must be filed using the Supreme Court's Electronic Filing Service at least one clear day in advance of the hearing. 4 Similar requirements apply to proceedings in the SICC, save that opening submissions must be filed no less than five working days before the trial of an action. 5 Because the Practice Directions impose virtually identical requirements, we have listed these requirements together, indicating the relevant provisions and noting any differences. [10.008] The required contents of opening submissions are listed in para 71(14)(b) of the SC Practice Direction and para 119(1)(b) of the SICC Practice Direction. Opening statements must: 3 Para 71(14)(a) of the SC Practice Directions, which provides that the only exceptions to this requirement are where dispensation has been granted by the court or in motor vehicle accident actions. 4 Para 69 of the SC Practice Directions. 5 Para 127(2) of the SICC Practice Directions. Written submissions for use at any Chamber hearings before a judge must be filed at least 7 working days in advance of the hearing: para 130(1) of the SICC Practice Directions. For any other contested hearing before a judge written submissions must be submitted at least 7 working days before the hearing: para 131(1) of the SICC Practice Directions.
454 Opening and Closing Submissions (i) Set out the nature of the case generally and the background facts insofar as they are relevant to the matter before the Court, indicating which facts, if any, are agreed; (ii) Identify the legal and factual issues involved by reference to the pleadings. These issues should be numbered and listed, and each point should be stated in no more than one or two sentences; (iii) Identify the key documents and witnesses supporting each factual proposition; (iv) Set out the principal authorities relied upon in support of each legal proposition; (v) Where there is a counterclaim or third party action, the opening statement must address all issues raised therein; and (vi) Explain the reliefs claimed if these are unusual or complicated. [10.009] The Practice Directions do not expressly provide that the court has discretion to refuse to accept opening statements that do not comply with these requirements. However, the Practice Directions expressly provide that "the Court will have no hesitation in making a special order for costs against the relevant person" if it considers that costs or hearing days have been wasted by a poorly drafted opening statement. 6 Although opening statements may be amended at trial, counsel will be expected to explain the reasons for the amendments. 7 Parties may supplement their opening statements with an oral address before the court, but these supplementary opening statements should be "as brief as the circumstances allow and in any event, subject to the previously directed timetable at the Case Management Conference(s) or any other time limit as the judge may allow".8 [10.010] The Practice Directions also specify the formatting required for written submissions. 9 Submissions should be double spaced and should adopt a minimum font size of Times New Roman 12 or its equivalent. Submissions should be no longer than 20 pages (including all annexes and appendices, but excluding the cover page and backing page), and every page should have a margin of at least 35 mm in width on all 4 sides. Pages may be doubled sided or single sided, and are to be paginated, with the first page (or cover page if applicable) numbered as "Page I". 6 Para 71(14)(c) of the se Practice Directions; para 119(1)(c) of the SIee Practice Directions. 7 Para 71(14)(f) of the se Practice Directions; para 119(1)(f) of the SIee Practice Directions. 8 Para 119(2) of the SIee Practice Directions. 9 Para 71(14)(d) of the se Practice Directions; para 119(1)(d) of the SIee Practice Directions.
Written Opening Submissions at Trial 455 [10.011] Before considering what should go into the written opening submissions it is important to consider the question what are the submissions for? The Practice Directions gives this general guidance: A proper opening statement is of great assistance to the Court as it sets out the case in a nutshell, both as to facts and law. It is intended to identify both for the parties and the judge the issues that are, and are not, in dispute. It enables the judge to appreciate what the case is about, and what he is to look out for when reading and listening to the evidence that will follow. The need for brevity is emphasised as opening statements that contain long and elaborate arguments, and citations from and references to numerous authorities, do not serve this purpose." IO [10.012] The written opening submissions are but one of the tools of the advocate. Your overall purpose at trial is to assist the court to come to a favourable decision for your client, and in doing so to present that evidence and those points which will help the judge. Other tools for this purpose are the presentation of evidence, and testing of the evidence of the other side, and closing submissions, written and oral. All are bent towards the one overall purpose, and each has a different role. [10.013] There are three key points to keep in mind at all times in drafting opening submissions which control their content. Above all, the submissions should so far as possible engage the attention and sympathy of the court; second the submissions are to be read in advance of the evidence being heard by the court; third they are not to exceed 20 pages in length. [10.014] If and insofar as possible, your task in the written opening submissions, and during the other stages of a trial, is to seek to persuade the court that the position of your client is above all reasonable. If you succeed in that you will find that you work "with the grain" of the court rather than against it, and the court is in this sense sympathetic to the case. You should therefore seek above all a way to present your client's case that makes it seem inevitable that it should succeed. If the case put forward is simple, moderate and reasonable it is much more likely to seem inevitable than if it is complex, extreme or unreasonable. [10.015] Because the written opening submissions are presented in advance of the evidence, it is not helpful to the court if they seek to argue points which depend on the evidence to be heard, so any temptation to do so must be resisted. That is not their purpose. Their fundamental purpose is to assist the court to understand the case you are putting, and 10 Para 71(14) of the SC Practice Directions; para 119(1) of the SICC Practice Directions.
456 Opening and Closing Submissions to assess the evidence which is to come. Argument on that evidence, and the law, should come afterwards, at the stage of closing submissions, even if it could be done in the 20 pages allowed for opening submissions which in most cases is highly unlikely. [10.016] Before drafting opening submissions, you must know precisely what you hope to be able to submit to the court at the end of the trial, and the conclusions which the court should reach on the issues which will lead to success for your client. There is no better way to know the intended conclusions than to draft the closing submissions in advance of the written opening submissions. The process of drafting written closing submission will focus the mind on exactly which propositions are required for you to succeed. Once the propositions are clear, you will work out exactly what evidence is required to establish each proposition and where it comes from: admissions, documentary evidence, witness evidence or expert evidence. The written opening submissions will be drafted with the aim of establishing those propositions in due course. You will also know precisely what factual and expert evidence will be needed for cross-examination. 2. Example case: written opening submissions in a case of a claim to rescind a guarantee [10.017] We begin by considering an example case, and the written opening submissions which could be drafted for it, before drawing out more general guidance, partly by reference to this example case. We hope this approach will serve to illustrate more clearly the general points on drafting. [10.018] Take a case where the plaintiff seeks to rescind a guarantee for misrepresentation, alternatively to claim damages for misrepresentation, or for breach of a common law duty of care in failing to advise. The plaintiff maintains that he was specifically informed by the lender in advance of the contract that the borrower had procured other guarantees and security which comfortably exceeded and secured the loan, when in fact the borrower had not, in order to persuade the plaintiff guarantor to give the disputed guarantee. [10.019] What follows are points for the written outline submissions in the example case. This is not the only way that the submissions might effectively be done. [10.020] In the written opening submissions, the plaintiff will state in the introduction that it is a case where the claimant was induced to enter into a guarantee on an erroneous basis. The plaintiff believed that other
Written Opening Submissions at Trial 457 guarantees had been given and security provided, and as a result that either his guarantee would not be called on, or that he would have a good claim over or against other security providers. That belief was based on what the representative for the lender represented to the plaintiff on a particular occasion or occasions. The representation was not true. [10.021] The factual summary will provide in a few pages the history of the transaction and the commercial setting in which the plaintiff agreed to provide a guarantee in the belief which he had, cross-referred to the key documents including the guarantee. So far as possible it should seem perfectly reasonable from the brief commercial and factual background contained in the summary, that the defendant made the representation, and the plaintiff relied on it. The summary will deal briefly with the aftermath, the absence of the expected other guarantees and security, and the history of the proceedings. The summary of facts will not generally be contentious. But if there are facts which are contentious they will be highlighted as such. [10.022] The issues will then be identified. There are two key areas: misrepresentation and the duty to advise. The submissions will make clear that if the plaintiff fails on the misrepresentation case, it still has a claim for breach of the duty to advise. The ingredients of the claim in misrepresentation will be shortly stated. If it is clear there is a major dispute about, for example, factual reliance, it may be necessary to deal with this. [10.023] The legal submissions will set out a series of numbered legal propositions, supported by authorities. The extent of this section will depend on the need to highlight particular areas of contention if any appear from the pleadings, for instance, in relation to the legal elements of inducement or reliance; otherwise they may be dealt with briefly. It is not usually advisable to anticipate in the opening submissions a dispute which has not yet arisen. The propositions will be carefully stated but not argued in the written opening submissions. [10.024] If, for instance, the defence has raised a defence of contractual estoppel, based on the terms of the guarantee, the plaintiff should identify in the written opening submissions what its argument is by way of answer to that defence without setting out all its submissions on the argument. The plaintiff might state that it will argue that on its true construction the clause in the guarantee agreement does not have the effect contended. The plaintiff will then include any major legal propositions relied on by way of answer at this stage.
458 Opening and Closing Submissions [10.025] The issues will then be addressed. It is best not to over complicate. the issues by splitting them into minute parts. The advocate will focus on those which are key or contentious. The plaintiff will indicate what its case is on the issue; for example, that a representation was made orally on a particular occasion, and confirmed in a later letter. The plaintiff will indicate which witnesses it expects will give evidence on the issue, and any key documents. Reference may be made to the key passages in the witness statements. For example, in relation to the issue as to whether or not the lender was negligent in failing to advise that there was no other security, the written opening submissions will identify the difference, if any, between the experts on the subject, and refer to the relevant passages in the expert reports, so that the court is aware of the nature of the opposing cases and evidence. All issues should be covered, including duty, causation and loss, although they may be dealt with briefly at the opening stage. [10.026] The written opening submissions will identify with care what facts are common ground and what is disputed. For instance, it may be accepted by the defendant that it did not have any other security apart from the disputed guarantee, and that, if the lender was under a duty to proffer information or advice that it had not obtained any other security for the lending, the defendant did not provide such information or advice. [10.027] As to the relief claimed, the plaintiff will state that it seeks rescission for misrepresentation, alternatively damages for negligent misrepresentation if the rescission claim is barred for any reason. The written submissions will make clear that if the plaintiff fails to establish that there was a misrepresentation, the plaintiff will still seek damages or additional relief for failure to proffer advice. However, if the plaintiff succeeds on the misrepresentation claim it would be entitled to rescission or damages, and the plaintiff would not need to pursue the breach of duty to advise claim. Nevertheless, the plaintiff might ask the court to come to a conclusion on the breach of duty case, in case the decision is appealed. [10.028] The outcome should be that the court is ready to hear the evidence. So far as possible, the plaintiff's position should be presented as according with common sense. The court should be left thinking that the plaintiff's case is irresistible if made out on the evidence, and feel confident that the advocate knows what the scope of the dispute is, what the claimant is seeking, and what the case is on the matters in dispute. So far as possible, the written opening submissions should foster the impression that you know what you are doing, and may be relied upon to assist the court to resolve the issues.
Written Opening Submissions at Trial 459 (a) The introduction [19.029] It is much easier to understand the submissions if your case is encapsulated at the outset than if not. The introductory paragraphs of your submissions should set out what the case is about, giving a pithy two to three sentences about who should win and why. The entirety of your submissions should then be focused on those three sentences - who should win, why, and how. Having a well-developed conception of this central idea at the outset may help your submissions to stay on point. However, in many cases you will refine your submissions as you draft them and will have to refine your opening paragraph accordingly. (b) Setting out the factual narrative [10.030] A well drafted factual narrative will usually be more than just a neutral summary of the facts. Above all, it is most often your opportunity to present the story and set the context for the case which you wish to present. The opportunity should not be overlooked. [10.031] For instance, in the example case above, why did the guarantor give the guarantee ifhe did not think it would be relied on? Why would the lender have given assurances to the guarantor as to the other security? It may be that there had been previous dealings between the lender and the guarantor in which there had been a relevant understanding or agreement, in which case that will be referred to. It may be that the debtor was insolvent and the lender was in an especially exposed position at the time the guarantee was taken. If the judge does not understand the plaintiff's case on these points at the outset, he is not likely to find the plaintiff's position compelling. [10.032] The purpose of the factual narrative is to set out the factual background necessary to understand the issues relating to the guarantee. That will inevitably include the parties; the loans to the debtor and the circumstances in which the guarantee came into being. But, in setting out that factual background, you will seek to include without argument the facts and context relevant to the answers to the basic questions above. The factual narrative is not the place for detailed or any argument as to those answers, but the basis can be incorporated there. [10.033] It follows that the factual narrative should not generally include material known to be in dispute (at least without clearly flagging the dispute); that should be saved for the section of the written submissions on the issues which contain argument. It should be clear to the court at all times what parts of the submissions are controversial and what is not. If the factual narrative is kept clear of controversy, it is more likely to be
460 Opening and Closing Submissions accepted by the court. You will therefore ensure that it is scrupulously accurate. [10.034] You will include not only the facts favourable to your arguments but also those that are significant but contradict your arguments. Leaving out a fact that you consider to be relevant but damaging to your client's case will only undermine your credibility as an advocate, and harm your client's case in the long run. If you give a judge reason to question one detail or one omission in your submissions, there is a risk that he will end up questioning everything that you say. Your focus should be on why your client should prevail in spite of those facts. However, this does not mean that you have to include facts that are not relevant to the matters in issue, or flag the existence of further points that are helpful to your opponent's case although you can neutralise the latter as we suggest below. The extent that it is appropriate to do so in a given will be a question for your own judgment. [10.035] The importance of your factual narrative will depend on the court in which you are appearing and the purpose of the hearing. It goes without saying that facts will usually assume a greater importance during the trial at first instance, and decrease in importance as the case progresses through the appellate system. [10.036] Opinion is divided as to the order in which you should tell your client's story. Many other writers on this subject take the view that it is best to set out the narrative in chronological order.l1 Others suggest beginning with the significant event in the narrative that is most helpful to the issue at hand and simply fill in the background details as you go alongy Although the latter approach has the benefit of highlighting what is important from your client's perspective, we consider that it is usually best to proceed chronologically, as this is likely to be the clearest structure and therefore most helpful to the judge. The purpose of opening submissions is to assist the court. 13 It is not usually helpful to force the judge to piece the factual narrative together. [10.037] We also suggest providing the court with a chronology and dramatis personae unless the matter is very straightforward, although the rules do not make these a requirement. This will usually be greatly appreciated by the court and has the added benefit that drafting a 11 G Bradley, S Paulsen, Vanselow, and MJ Clary, Advocacy on Appeal (Thomson West, 2004); A Scalia, BA Garner, Making Your Case: The Art of Persuading Judges (West Publishing Company, College & School Division, 2008). 12 SD Stark, Writing to Win (California: Three Rivers Press; 2000), p 97. 13 Para 71(14) of the SC Practice Directions; para 119(1) of the SICC Practice Directions.
Written Opening Submissions at Trial 461 chronology to be read by the court will help to focus your mind on the import~ant events in your factual narrative. (c) Issues [10.038] As noted above, the Practice Directions require advocates to list the relevant factual and legal issues by cross-referencing the relevant paragraphs of the pleadings. 14 This should usually mirror any list of issues prepared in anticipation of any case management conference.1 5 [10.039] The way in which a list of issues is drafted will be highly persuasive to a judge, and it can be highly effective to word the issues in a way that points towards the conclusion that you want the judge to reach. For example, in a claim brought by the plaintiff for repudiatory breach by the defendant who purported to terminate the contract, the plaintiff's statement of the issue might read like this: Was the plaintiff entitled to terminate his contract with the defendant where the defendant had failed to pay the plaintiff for services already rendered over six months after the services had been provided? [10.040] Conversely, the defendant's statement of the issue in the same case might look like this: Was the plaintiff entitled to terminate his contract with the defendant for late payment in circumstances where the contract did not state time to be "of the essence"? [10.041] An advocate's scope to direct the formulation of the issues in this way is likely to be circumscribed by any agreed list of issues. Therefore, some care will be required in agreeing the issues with your opponent in advance of any case management conference. In addition, you should state the issues as narrowly as you can do in order for the court to find in your client's favour. After all, you are before the court to win the case for your client, not as an agitator for social change. Asking a court to reach a decision that will have significant ramifications for other litigants is likely to give it pause for thought. Do not give yourself this additional hurdle to overcome, if it is not necessary on the facts of the case. [10.042] As with your introductory paragraph, your list of issues may need to be refined in the course of drafting your arguments, as you refine your ideas. 14 Para 71(14)(b) of the SC Practice Directions; para 119(1)(b) of the SICC Practice Directions. 15 Para 80 of the SICC Practice Directions.
462 Opening and Closing Submissions (d) Setting out your position [10.043] In written opening submissions the focus of the advocate is to identify the plaintiff's position on each issue, rather than to argue it. The Rules of the High Court and the SICC make this clear: The object here is to identify the issues in dispute and state each party's position clearly, not to argue or elaborate on them. [10.044] In the example case referred to above, in the opening what the court needs to know is whether the plaintiff's case is that the representative of the lender represented to the guarantor at a particular meeting, and again in correspondence, that the lender had procured guarantees and other security, and not the reasons why it is being argued that it is more likely that such a representation was made than not made. Those arguments will come in closing. [10.045] Key decisions however, need to be made as to what issues should be pursued, emphasised or dropped. These decisions will probably depend on your assessment of the strength of the arguments. For instance, in the example case, if the misrepresentation case is weak, you may choose to deal with the duty of care case first, and leave the misrepresentation case as open to the court depending on the court's view of the evidence of the representations. Be ruthless. Often the most difficult decisions in a case are which are the issues to run and what emphasis to be given. Pick your strongest points of argument and focus on those. Incorporating a multiplicity of weak arguments will distract the judge's attention from your stronger points, and may undermine your stronger points. A "kitchen sink" approach is detrimental to your strong points as there is a large risk of it coming across as desperate, and leaving the court wondering why, if your good points really are good points, you felt it necessary to labour bad points. (e) Citing authorities [10.046] Para 74 of the SC Practice Directions sets out detailed provisions as to the manner in which judgments should be cited in the Supreme Court. These are repeated in almost identical terms at para 132 of the SICC Practice Direction. Many of the provisions simply set out what is good practice as a matter of common sense. However, compliance with the Practice Directions is more than a matter of best practice, as the court may take into account the extent to which counsel has complied with the provisions relating to citation of judgments when exercising its discretion as to costsj6 16 Para 74(9) of the se Practice Directions; para 132(5) of the SIee Practice Directions.
Written Opening Submissions at Trial 463 [10.047] When citing judgments in favour of a proposition of law, advocates must state the proposition of law that the judgment establishes and the parts of the judgment that support that propositiony Counsel should, where possible, refer to the specific paragraph number in the cited judgment, using square brackets to indicate the relevant paragraph. I8 We consider that this practice should also be adopted in respect of pinpoint citations in the Supreme Court. [10.048] Where you are merely citing a case as support for an uncontroversial rule of law, it will usually be sufficient to cite the leading case in parentheses. However, where the decision contains details that are particularly helpful to your case, you should draw those features to the attention of the court. At all times, recall that it is not enough to merely cite the relevant authorities and their applicable principles, you must also explain how those authorities support your argument. When quoting from judgments it is often better to (accurately) paraphrase rather than setting out the quotation in full. Not only is this often a more succinct way of conveying the information, it is also often helpful to put the relevant principles into your own words (provided of course that you do so in a way that is true to the original text). Try to avoid block quotations, as these are usually nothing more than an invitation to skim. If you must include a block quotation, make sure that the point you wish to make is paraphrased before setting out the quotation, in order to ensure that it is read. [10.049] The Practice Directions recommend that submissions should only cite more than one judgment of the same proposition of law where there are compelling reasons for doing so (which must be identified in counsel's submissions).19 This direction is consistent with good advocacy, as over citation will undermine the persuasiveness of your case. If you cite a case that is directly on point but go on to cite another case, the judge may conclude that your original case is not as strong an authority as it initially looked, otherwise why seek to buttress it with another case. Usually, you should cite the most recent case from the Court of Appeal, or, if available, a decision of the Court of Appeal that bears the closest factual resemblance to your case. In this regard, it is worth noting that the courts will have regard to any indication in the cited judgment that 17 Para 74(2) of the se Practice Directions; para 132(2) of the SI cc Practice Directions. In addition, the table of contents to an authorities bundle must set out a concise statement (comprising no more than three sentences) of the relevance of each authority to the specific issues before the court: para 69(5)(c) of the se Practice Directions; para 128(1)(f) of the SI CC Practice Directions. 18 Para 74(7) of the se Practice Directions; para 132(4) of the SI CC Practice Directions. 19 Para 74(2) of the se Practice Directions; para 132(2) of the SIee Practice Directions.
464 Opening and Closing Submissions the judgment only applied decided law to the facts of the particular case, or did not extend or add to the existing law. 20 [10.050] There are, however, rare circumstances in which it may be persuasive to cite a number of authorities for the same proposition. For example, where the decided cases on a point in the courts below overwhelmingly favour one side, it may be helpful to cite those decisions by way of illustration but for no other purpose. Similarly, where the development of the same legal issue in other common law jurisdictions has been almost uniform in adopting the approach that you propose, it may be helpful to rely on authorities to that effect. However, the SC Practice Direction provides that local judgments will be accorded greater weight than judgments from foreign jurisdictions to "ensure that the Courts are not unnecessarily burdened with judgments made in jurisdictions with differing legal, social or economic contexts.// 21 Further, the SC Practice Direction also provides that counsel who cites a foreign judgment must: (a) draw the attention of the court to any local judgment that may be relevant for the court to decide whether it should accept the proposition that the foreign judgment is said to have established; and (b) ensure that such citation will be of assistance to the development of local jurisprudence on the particular issue in question. 22 3. Length [10.051] Brevity is required by the Practice Directions, which provide that an opening statement should not exceed 20 pages (including all annexes and appendices, but excluding the cover page and backing page).23 [10.052] However the main reason for brevity is because your written opening submissions are more likely to hold the attention of the judge if shorter rather than longer. The task of making submissions succinct should cause you to focus on the essential, and strip away the peripheral and irrelevant. The submissions should hold the attention of your reader because everything in them matters. 20 Para 74(3) of the se Practice Directions; para 132(3) of the SIee Practice Directions. 21 Para 74(4) of the Practice Directions. 22 Para 74(5) of the Practice Directions. 23 Para 71(14)(e) of the se Practice Directions; para 119(e) of the SIee Practice Directions.
Written Closing Submissions at Trial 465 [10.053] Try to keep your sentences short and your phrasing crisp. Avoid prefacing your arguments with weak statements such as "the plaintiff submits", "it is therefore submitted". If you are counsel for the plaintiff, the court will know that this is the submission of the plaintiff by the very fact that you are making it. Try also to avoid using words like "obviously" or "clearly"; they will usually do little more than highlight to the judge that the matter is anything but obvious and the proper solution is far from clear. [10.054] Opinion is divided as to the use of footnotes. Some commentators consider that they should never be used as they break the flow of your writing. Others think that footnotes are permissible for including ancillary points or for citing authorities, but that they should be used sparingly. We are of the view that they should be used sparingly, but can be helpful in improving the readability of the text, provided that they are not being pressed into service in order to sneak in further text under the word limit. C. WRITTEN CLOSING SUBMISSIONS AT TRIAL [10.055] Written closing submissions perform a vital role. Unlike the written opening submissions, they present together, for the first and only time, the arguments being made by the advocate, based on the evidence which has been heard, in relation to the issues to be determined at trial (unless there is an appeal). They are intended to persuade. 1. Formal requirements [10.056] Closing submissions are required before the SICC unless the SICC directs otherwise. 24 The SC Practice Direction does not make any provision for closing submissions, although they are usually required at the end of a trial. Unless otherwise directed by the SICC, written closing submissions will be by way of an exchange of submissions, which are followed by reply submissions responding and confined to points raised in the other party's initial closing submissions. 25 After the written closing submissions have been filed and exchanged, the parties will be allowed to make oral submissions if so directed by the SICC. The SICC may impose time limits on the length of time each party is given for oral submission. 26 24 Para 122 of the SI CC Practice Directions. 25 Para 122(2) of the SICC Practice Directions. 26 Para 122(3) of the SICC Practice Directions.