Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums

• Author: John I. Laskin
• Pages: 203-224

Forget

the

Windup

and

Moke

the

Pitch: Some

Suggestions

for

Writing

More

Persuasive

Factums

Justice

John

I.

Laskin*

When

I

began practising law, written advocacy

— the

factum

— was far

less important than

it is

now. Most counsel

did not

write their

own

fac-

tums. Several

did not

even read what their

juniors

or

students

had

writ-

ten for

them.

Although

we

maintain

a

strong tradition

of

oral advocacy

in

Ontario,

you can no

longer treat your factum

as

casually

as the bar did a

quarter

of a

century ago. When

I

practised

I

worked pretty hard

on my

own

factums.

Now

that

I am on the

other side

I can say

that

if I

knew

then

what

I

know now,

I

would have worked even harder.

In

our

court

the

factum

is

often

far

more

important

than

the

oral

argument.

The

reasons

are not

hard

to

discern:

Our

workload

is

heavy;

to

reduce

our

inventory

we

have

been

"over-

booking"

on

both

the

civil

and

criminal side

and are

routinely hear-

ing

three

or

four

appeals

a

day.

We

have limited counsel's

time

for

oral argument.

Only

a few

members

of the

court routinely take pre-hearing bench

memoranda,

so the

factum

is the

only sure route

to the

judge's heart

and

mind

before

the

hearing.

Mr.

justice

John

I.

Laskin,

Court

of

Appeal

for

Ontario.

203

204

ETHOS,

PATHOS,

AND

Locos

We

decide about

85 to 90

percent

of our

cases right

after

argument,

by

endorsement

or by a

short

judgment.

Before

the

appeal

is

heard,

you can be

sure that each member

of the

panel will have read

the

reasons

for

judgment

or the

charge

to the

jury,

the

appellant's

factum,

and the

respondent's factum.

We all

would like

to

read more,

and in

many appeals

we do, but we

don't

always

have

the

time

to

read more than

the

reasons

or

charge

and the

factums.

Judges

cannot

help

but

form

an

initial

impression

of

your case from your fac-

tum.

The

factum,

as

former Chief Justice Dubin

put it,

"whets

the

appetite

of the

judge."

But

often

the

factum does more than that.

It may

leave

the

judge

not

just with

an

initial impression

of

your appeal,

but a

lasting impression.

In our

court

we do not

have

a

formal pre-hearing conference

to

dis-

cuss

an

upcoming appeal.

But

informal

chit-chat

is

inevitable,

so a

good

or

bad

factum

can

take even firmer hold with

the

panel.

You

can

overcome

a bad

factum with good oral argument,

but

doing

so

is an

uphill

struggle.

If you

write

a

good factum,

you

have

a

great

advantage

and

will

enhance

your

own

credibility with

the

court. Judges

like

to

gossip.

We

remember

the

good-factum

writers

and

even come

to

recognize

their styles.

In the

March

1990

issue

of The

Advocates'

Society

Journal,

the

late Justice John Sopinka wrote that

in his

opinion

the

qual-

ity

of

advocacy makes

a

difference

to the

outcome

of 25

percent

of

appeals

in our

court.

If

that

is

true (and

I

think

it

is),

the

factum

is a

large

part

of

that

25

percent.

This article

offers

some suggestions that might improve

the

clarity

and

persuasiveness

of

your factums. These offerings

are not

inflexible

rules; they

are

just

my

suggestions.

If

something

else

works better

for

you,

then

use it.

My

theme

is

readability,

and my

focus

is on the

reader. When

we

write

we

sometimes

forget

about

the

reader.

To

persuade,

you

have

to

consider your reader, your audience. When

I

write reasons,

I try to

think

of

my

well-informed next-door neighbour reading

my

reasons.

My

neighbour

is my

audience.

The

advocate's audience

is

more limited:

opposing counsel and,

of

course,

the

judge whom

the

advocate must

persuade.

I

firmly believe that although what

we

say

is

important,

so too is

how we say it. You

cannot divorce content

from

language

and

style. Dull,