“Journalists say that if you cannot capture the reader's interest in the first two paragraphs, give up. The same is true here.” – Justice Marshall Rothstein
While nobody would seriously suggest that if the introductory paragraphs in your factum fall short of Hemmingway-esque pith and punch, you should abandon the whole argument, the import of an engaging overview cannot be overstated. As discussed in the “Understanding Your Audience” chapter of this Handbook, cognitive science has demonstrated that first impressions are formed quickly and fixed firmly – meaning even significant, new information may not budge the audience’s initial views.[1] As Justice John I. Laskin noted, first impressions can create lasting impressions and a good overview helps establish a credible voice with judicial reader.[2]
Accepting the importance of an overview, the next questions are (i) what does an overview do (the overview’s effect), and (ii) how do I write an overview well (the effective overview)?
i. The Overview’s Effect
At its core, the function of a factum’s overview is to tell the reader what the case is about. Not just what the case is literally about – the parties, the nature of the case, the key issues, the procedural context,[3] and, in the context of appeal factums, how the decision under appeal contains reversible error (or not) and why it should be overturned (or upheld) – but also what the case, or the argument addressed in that factum, is truly about. This second “about” concerns the deeper significance of the case – the essence of the issue(s), the core legal or policy question to be determined, and how the law, the facts, and/or the justice of the case requires that question be determined in your client’s favour. This is called as putting context before detail,[4] or explaining the significance of the details upfront, so the reader knows “what they should be looking for and thinking about as they wade through them.”[5]
The overview serves another important purpose – to provide structure to the ensuing 20 to 30 pages, a roadmap outlining for the judge what to expect and how to situate the importance of each individual section and detail in the overall context of the argument. Legal writing coach Stephen Armstrong explained that creating a clear organizational structure, not logic or persuasion alone, is essential for effective written advocacy. The necessary clarity begins in the overview, by making the organization of the factum visible and obvious to the reader.[6] Armstrong also emphasized that in the overview “readers are looking for:
- a "frame" that locates what they are about to read in the relevant part of the known universe, preferably a part that is familiar to them;
- a focus for their intellectual effort as they read; and
- the point or conclusion towards which you are leading them.”[7]
ii. The Effective Overview
Given these purposes of the overview – its effects – how does one write the overview effectively? While framing the issues, focusing the readers, and guiding them to the finish line (the result you want the court to reach), the effective overview will also “hook” the reader. Kiang, Bielert, and Laskin note that if you can state the theory of your case or theme of the appeal “in a memorable sentence or two, you will be off to the races.”[8] Those first couple sentences should clearly and concisely explain what the case is about, the determinative issue(s), the theme and story of the case, all in a manner that focuses on the fairness and reasonableness of your client’s case.[9]
In her legal writing coaching,[10] Caroline Mandell talks about “the magic Qs for overviews” (it sounds better spoken). She explains that every judge looking for the answers to these key questions on first page of every factum:
(i) what am I being asked to do;
(ii) what are the stakes (who is affected, is it applying settled law or changing precedent);
(iii) what is key principle/rule/framework;
(iv)what issues do I have to decide (and in appeal factums, what is the standard of review to be applied by the appellate courts in deciding those issues); and
(v) where is justice of case?[11]
By answering these magic questions in your factum’s overview, you are telling the court what your case is about, while also setting the “frame”, providing the “focus”, and defining the “finish line” or conclusion toward which you are leading the reader.
An overview which answers each of these questions provides sufficient information so that readers will know what to look for, what to think about, and the overall context and significance of the factual details and legal issues as they read the remainder of the written argument. An effective overview will strike the balance between giving the judge(s) enough context to provide that context and address those key questions “without going too far, ending up with overviews that are themselves dense and intimidating clumps of detail.”[12]
A Final Word: Ongoing Overviews
Armstrong teaches that “Your obligation to give readers a context, focus and point does not expire after the overview.”[13] This means that even after the overview, every subsequent section of factual detail or legal argument in the factum needs its own concise, smaller-scale introduction.[14] This is because, as Justice Laskin explained:
Judges do not read a factum passively. They constantly look for the lawyer's point, the context for the details they are reading. If the lawyer wants to persuade the judge, then the lawyer must remember to set out the point or the context before delving into all the details. If you do so, you will write factums that are easier to follow, easier to remember, and more convincing.[15]
“This habit of ‘perpetual introduction’,” Armstrong writes, “makes for smarter, happier, and more efficient readers” and will help reinforce the structural clarity and the theme of your argument throughout the factum.[16]
[1] Dr. Michael Kiang, Lauralee Bielert, The Honourable John I. Laskin, “Know your reader’s brain: What cognitive science teaches us about writing appellate factums” The Advocates’ Journal 41.4 (Spring 2023) 6 at 6.
[2] John I. Laskin, “Why Are You Telling Me All This?” in Effective Written Advocacy, edited by Justice Thomas A. Cromwell (Aurora: Canada Law Book, 2008) 37 at 42
[3] Thomas A. Cromwell, “Effective Written Advocacy in Factums” in Effective Written Advocacy, edited by Justice Thomas A. Cromwell (Aurora: Canada Law Book, 2008) 53 at 59.
[4] Laskin, “Why Are You Telling Me All This?” 37; Kiang, Bielert, Laskin, “Know your reader’s brain” 6
[5] Stephen Armstrong, “Creating a Clear Organization: Why Logic Is Not Enough” in Effective Written Advocacy, edited by Justice Thomas A. Cromwell (Aurora: Canada Law Book, 2008) 15 at 17.
[6] Armstrong, “Creating a Clear Organization” 15 at 17.
[7] Armstrong, “Creating a Clear Organization” 15 at 18-20, 28-29.
[8] Kiang, Bielert, Laskin, “Know your reader’s brain” 6 at 8.
[9] Laskin, “Why Are You Telling Me All This?” 37 at 41-42.
[10] Caroline Mandell, Legal Communications & Litigation Consulting, mandellcoaching.com.
[11] Similarly, Kiang, Bielert, and Laskin suggest that an effective overview does at least four things: (i) tells the judges what the case is about; (ii) defines the issues as specifically as possible; (iii) tell enough of the story so the judges understand the significance of the issues; and (iv) provide context to elicit empathy for your position - Kiang, Bielert, Laskin, “Know your reader’s brain” 6 at 8.
[12] Armstrong, “Creating a Clear Organization” 15 at 25.
[13] Armstrong, “Creating a Clear Organization” 15 at 22.
[14] Armstrong, “Creating a Clear Organization” 15 at 22-23.
[15] Laskin, “Why Are You Telling Me All This?” 37 at 38
[16] Armstrong, “Creating a Clear Organization” 15 at 28.
