There is no shortage of opportunity for lawyers to spill our ink advocating for our client’s rights and interests. From the initial email or letter to opposing counsel to the persuasive appeal factum and every step in between, effective and efficient written advocacy is an essential – indispensable – tool in our client-service toolkit. As one appellate decision recently put it:
“Written advocacy is the foundation upon which Ontario’s modern appellate advocacy process rests. Written advocacy is the main tool by which the parties educate a panel about the issues on an appeal and then attempt to persuade the panel to the party’s position.”[1]
Effective written advocacy is also important on motions, applications, and trials, albeit with necessary adjustments to ensure the factum serves its particular purpose.[2] Any distinctions to be made between written advocacy in different procedural forums fall to the margins; the twin purposes of education and persuasion remain the core aim of any piece of effective legal writing. That said, the contents of this written advocacy guide focus on appeal facta.
Yes. This is another piece of writing on written advocacy. But why? Hasn’t it been done, re-done, and overdone? Is there anything left to write about legal writing?
We concede the point, but assure the reader that this project is distinguishable from the many existing (and quite helpful) resources on point. Our task in this guide is not to rewrite what is already written or to reinvent the wheel of effective written advocacy, but rather to distill the sage advice of renowned experts in this field[3] into a concise and practical handbook. Something of a “quick reference guide” to consult as a go-to resource whenever the advocate picks up the proverbial pen (or, more likely, opens the blank Word document) to begin drafting a written argument.
Our intention is to present several short, focused, accessible chapters covering the fundamental components of the factum and offering practical guidance for drafting each of those sections of argument. Applied consistently, we believe that this written advocacy handbook can set the standard of written argument expected from competent, capable, and conscientious advocates.
With that justification, let us return to the pressing question: “but why”? It has long been recognized and repeatedly stated in the past 25 years that advocates can no longer rely solely on oral argument to persuade judges. The factum plays a vital, often decisive, role in any hearing (appeal or otherwise).[4] It is also well-documented that quality written advocacy not only enhances the persuasiveness of our clients’ positions in a given case, but also enhances the reputation of the advocate in the eyes of the court and opposing counsel.[5]
Not all written advocacy is created equal, however, and advocates must remember “there are limits on the usefulness of any element of advocacy, whether written or oral. More does not always mean better.”[6]
We would be wise to heed this caution. Hence, the purpose of this handbook is to guide advocates in preparing written arguments which are both effective and efficient.
To be effective is to produce the desired result. Effective written advocacy is clear and persuasive.
To be efficient is to be capable of producing the desired result without wasting time, energy, materials, or, in this case, words. Efficient written advocacy is focused and concise.
Writing effective and efficient arguments requires a skillful application of both the art and science of the craft.
The art of written advocacy refers to the stylistic and structural aspects of written arguments. These include considerations of organization, logic, flow, and voice. Persuasive facta are made up of persuasive sections comprised of persuasive paragraphs built with persuasive sentences. Countless volumes have been written about each of these component parts, all of which require attention, and all of which are addressed in the chapters of this handbook.
The science of written advocacy concerns the technical aspects of the written argument. The technical side of written advocacy aims to minimize distraction, resistance, and confusion, while maximizing readability, clarity, and consistency. The science of written advocacy is too often overlooked to the detriment of the writer whose otherwise persuasive prose may be hampered by poor formatting, inconsistent terms, or other technical faults.
What follows in the ensuing chapters is a discussion of the art and science of written advocacy, practical and readily-accessible guidance on effective and efficient written arguments on the following topics:
- Understanding and Writing for Your Audience – Jacob Damstra
- The Notice (of Appeal, or Application, or Motion) – Jordan McKie
- Engaging Overviews – Jacob Damstra
- Fashioning the Facts – Mitch Brown
- Identifying the Issues – Debbie Boswell
- Marshalling the Law - Debbie Boswell
- Advancing the Argument - Debbie Boswell
- Requesting the Relief – Rebecca Schoom
- Crafting the Compendium - Debbie Boswell
- A Picture Paints A Thousand Words: The Use of Visual Aids in Written Advocacy – Jordan McKie
- Studying the Science: Technical Aspects of Effective Written Advocacy – Jacob Damstra
Think of this handbook as an à la carte menu one can turn to when drafting particular elements, or a comprehensive guide to consult start to finish on any written advocacy project whether on a first appeal or as a refresher for the seasoned legal writer.
[1] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, para 2.
[2] 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 53; Paul M. Perell, “Written Argument at Trial” in Effective Written Advocacy, edited by Justice Thomas A. Cromwell (Aurora: Canada Law Book, 2008) 111 at 111; Peter W. Kryworuk & Jacob R.W. Damstra, “Appeal-Proofing Your Trial: Protecting Against (or Positioning For) the Appeal” 51 Advoc. Q. 502 (2021) at 526-539.
[3] A bibliography of suggested further reading is contained here [hyperlink] and at the end of this handbook.
[4] Justice John I. Laskin, “Forward” in Effective Written Advocacy, at iii; Justice John I. Laskin, “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums” (Summer 1999) 18.2 Advocates' Soc. J. (1999) 3 at 3-4.
[5] Justice John I. Laskin, “Forward” in Effective Written Advocacy, at iii; Justice John I. Laskin, “Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums” (Summer 1999) 18.2 Advocates' Soc. J. (1999) 3 at 5.
[6] Goberdhan v. Knights of Columbus, 2023 ONCA 269, para 5.