In his paper, Persuasive Written Advocacy on Appeal, the Honourable John Laskin provides a thorough and detailed review of essential factors that ought to be considered by advocates when drafting persuasive written advocacy.

Providing recommendations that extend beyond the required sections of a factum, Justice Laskin’s writing addresses 7 main topics, being: Introduction and Essentials; The Overview Section; The Facts Section; The Argument Section; The Relief Requested; Words, Sentences and Paragraphs; and Editing.

By way of a brief recap, this review will provide a cursory overview of the main points covered in Justice Laskin’s publication as well the specific considerations and recommendations set out therein.

Introduction: Some Essentials

Before putting pen to paper, Justice Laskin emphasizes the importance of taking a step back to consider the “deep purpose” that will truly drive the factum and the essential information required to reach an intelligent resolution.

Generally, this result can be best achieved by considering, amongst other things:

• The what/why/how questions that will drive the heart of the factum;
• The cardinal rule of placing yourself in the mind of the judge, and reducing the legal distance that judges must travel to agree with your position;
• Reducing arguments to their simplest components;
• Having the courage of selection to remove any unnecessary details while directing focus to the information that is essential to the argument;
• Maintaining credibility through being fair to the record, restrained, candid, and respectful;
• Showing that you have gained expertise in the subject matter; and
• Understanding the purpose of the factum from the perspective of the advocate who is trying to persuade and the judge who is trying to understand the opposing positions and basis for a just resolution.

The Overview

Each factum requires a general overview setting out the nature of the matter and the issues that are to be decided.

Ideally communicated in a page or two, this overview section carries tremendous value for the advocate by allowing them to “prime” the reader. As a result, a seed will be planted that contextualizes proceeding information such that it can be understood more readily and intelligently.

The preparation of a successful and compelling overview thus requires the advocate to, amongst other things:

• Set out the defining question, or questions, that drive the matter;
• Filter out the unnecessary details in favour of those that are critical and necessary;
• Frame the issues in the best possible way, without sacrificing honesty and integrity;
• Lead with their strongest points;
• Tell a story that will contextualize the information and demonstrate the elements of justice that will be upheld;
• Communicate not only “what” relief is being sought, but “why” the relief is necessary and just; and
• Provide a roadmap that will be followed throughout the factum.

The Facts

While matters are primarily determined based on law and precedent, issues often fall between the cracks and leave judges with discretion to reach a decision that they consider fair and just. In fact, cognitive studies are cited to demonstrate the critical role that emotions, experiences, and cultures play in the decision-making process for any individual.

Accordingly, while the facts at play cannot be changed, their proper depiction and organization can be critical to obtaining a desired result.

In doing so, key considerations for advocates include:

• Organizing facts in one of three recommended styles, being Thematic (most recommended); Chronological (recommended when sequence is of primary importance); or Witness by Witness (rarely recommended);
• Providing context before details and writing in a point first style that allows the reader to understand the purpose and value of the subsequent information they will be reading;
• Using headings and sub-headings for the purposes of organization; simple visual structure; chunking of similar information; and white space;
• Addressing bad facts and adverse findings by putting them in a different context; neutralizing them through juxtaposition against good facts; showing they are irrelevant; or deemphasizing them through the use of the passive voice or placing them in a dependant clause;
• As a respondent, agreeing with an appellant’s facts to the extent they are essentially accurate, but addressing elements that are inaccurate or communicated with too much gloss;
• Using visual aids; and
• Understanding when to communicate facts in the Facts section of the factum as opposed to the Argument section of the factum, although some facts may benefit from being repeated in both sections.

Argument

The Argument section of the factum allows the advocate to apply governing legal principles to their facts and demonstrate their application. For compelling advocacy, this section ought to make note of the following:

• Consider and communicate the standard of review governing the issue;
• Write in a point first style and consider the acronym of ISPAC, or SPAC where point first headings are used: (I)ssue, S(ubmission), P(rinciple), A(pplication or Analysis), and C(onclusion);
• Show don’t tell by demonstrating the who/what/where/when/why behind your assertions;
• Make use of quotations and citations, but reduce them to their most essential elements and avoid turning the argument into a series of block quotes;
• Make use of indented lists that chunk related information and create visual clarity; and
• Where necessary, provide a separate section discussing relevant statutory schemes and how they fit into the equation.

Relief Requested

The final substantive section of the factum asks for submissions on requested orders, including costs. While normally straightforward, the successful advocate will turn their mind towards any further incidental relief that may be beneficial to their client.

Words, Sentences, and Paragraphs

Turning away from the specific sections of factum, Justice Laskin then provides further general recommendations that ought to be followed throughout the drafting process. These principles are subdivided into Words, Sentences, and Paragraphs, each of which receive 5 specific recommendations:

• Words: 1) Prefer short, everyday words; 2) Limit the use of adjectives and adverbs in favour of strong nouns and vivid verbs; 3) Use concrete words; 4) Avoid false intensifiers and throat clearing phrases; and 5) trim verbosity and wordy syntax.
• Sentences: 1) Aim for sentences that average 20 words or fewer; 2) Place the noun or objection doing the action in the subject position; 3) Keep the subject, verb, and object together; 4) Write sentences that are mostly active verbs, using passive voice, nominalizations, and the verb “to be” as minimally as possible; and 5) Manage sentence structure such that important information arrives at the end.
• Paragraphs: 1) Each paragraph should have 3 basic elements, unity, development, and coherence; 2) Paragraph length should be varied but mostly short; 3) Use explicit transitional or connecting words, explicit roadmaps, and effective repetition to create flow and continuity within and between paragraphs; 4) Put your most important information at the end and beginning of a paragraph, and your least important information in the middle; and 5) Use the rule of three with a parallel structure.

Editing

Finally, in approaching the editing process, Justice Laskin emphasizes that there “is no great writing, only great rewriting.”

Accordingly, 10 specific suggestions are provided to enhance and perfect the editing process:

1. Before editing, put the draft away for at least 24 hours, if not two days, to return with fresh eyes and a fresh perspective;
2. Regardless of whether materials are typed electronically, edit on paper;
3. Read the draft aloud as the ear is often a more reliable guide than the eye;
4. Read the factum as a whole to get a general sense of the materials;
5. Do not try to edit everything all at once, first fix the big things and then tackle the smaller aspects such as sentences and phrasing;
6. Edit the draft reading only headings and sub-headings, asking yourself whether a judge could skim them and know where the factum is heading and why it should succeed;
7. Edit not only for what was written, but for what has not been written and is missing;
8. Make sure there is enough white space on each page;
9. Do a technical edit for correct grammar, spelling, punctuations, and citations; and
10. Most importantly, always look to cut.

Concluding Comments

Despite the pressures that advocates face due to the constraints of time and their busy practices, writing a factum involves putting your client’s best foot forward. As a result, those who invest in writing concise, contextualized, and fair arguments will see dividends paid off for both their client matters.