A good lawyer knows the law; a great lawyer knows the judge. - Unknown
It is a time-tested trope among authors, speakers, media, salespeople, and marketing experts that you have to “Know your audience”. It is said that understanding one’s audience helps in crafting content and messaging that is relevant and targeted to that audience. Tailoring one’s message to suit the preferences, perspectives, and characteristics of the audience ensures engagement, effectiveness, and efficiency. As communications expert, Lilly Walters has explained: “The success of your presentation will be judged not by the knowledge you send but by what the listener receives.”
As lawyers, we should take this truism to heart. And as advocates, the most important audience/listener/reader we need to understand is the judge(s) or adjudicator(s) who will be deciding our clients’ cases. Accordingly, the effective written advocate will strive to understand their judicial audience by (1) seeking to know their reader’s brain and (2) understanding how the judge(s) engage with and use the factum.
(1) Know your reader’s brain
In a great article on how cognitive science can inform effective written advocacy, Dr. Michael Kiang, Lauralee Bielert, and Justice John I. Laskin observe that cognitive science takes the principle of knowing one’s audience “one step further, showing the importance of ‘knowing your reader’s brain.’ Understanding how the brain processes and remembers information can help appellate advocates write more persuasive factums.”[1]
“A poorly written factum = a lost opportunity”, they explain, because:
- First impressions are formed quickly and fixed firmly – even significant, new information may not budge the audience’s initial views
- Confirmation bias causes audiences to double down on existing views and look for information that supports their already held beliefs
- Negatively affect responses to poorly written facta may influence how judges assess your argument and can be difficult to change (see more in the Chapter on “The Science of Written Advocacy).[2]
The factum, especially its overview, is the judge’s first impression of your advocacy and your client’s position. Making a good first impression through the factum is essential in effective advocacy.
They also survey the cognitive science research which shows that:
Providing context before detail increases comprehension and recall
- Advocates need to set the stage effectively with an engaging overview (more on this in the Engaging Overviews chapter)
- Factums should make use of active, case-specific headings and sub-headings
- Include topic sentences introducing each paragraph
- Quotations must be properly introduced with the necessary context
Using engaging storytelling is a powerful persuasive tool
- Applying storytelling tools like character, plot, theme, and point of view enhances engagement with your written argument
- Choosing concrete, as opposed to abstract, language to create visual imagery for judges increases persuasiveness
“Chunking” information can avoid working memory overload
- Show connections between ideas
- Limit each paragraph to one main idea
- Use indented bullets and numbered lists
- Use headings to signal the chunking of information
“On-screen” readers read and recall differently than “in-print” readers
- Appearance matters to the reading brain, so the use of white space, short paragraphs, wide margins, indented lists, active headings, and visual aids can increase comprehension
- Digital readers are more likely to skim, emphasizing the importance of headings, overviews, topic sentences, and tables of contents
Understanding cognitive science and knowing your reader’s brain, it is imperative to apply each of these takeaways to maximize the effectiveness of one’s written advocacy.
(2) Understand how the reader uses the factum
The second component of understanding your judicial audience is understanding how and when your judge(s) are engaging with and using the factum.
Written argument on appeals plays an advocacy role before, during, and after the hearing, a characteristic not shared by oral argument. Appellate judges use the written arguments prepared by counsel at three different stages during their consideration of a matter:
- Pre-hearing;
- During a hearing;
- Post-hearing when writing the decision.
Pre-hearing
Before the hearing, the factum’s task is to educate the judge and guide them through the evidentiary record and relevant legal authorities. Judges will use counsel’s written arguments (factum/brief/statement of law) as gateways into the record and authorities.
In modern appellate advocacy, the evidentiary record and brief of legal authorities are digital. Consequently, the digital factum must provide appropriate links to the digital evidentiary record and authorities referred to in the course of the written argument. This will allow a judge to navigate easily between your argument and the record, thereby facilitating the ability of the judge to understand the case and your client’s arguments about the case. The most useful factums are those that use hyperlinks which enable both a link to a pinpoint cite or portion of a document and another link that enables the judge to access the entire case, or document, or transcript.[3]
Retired Supreme Court of Canada Justice Thomas Cromwell suggests that in light of the pre-hearing functions of the factum, it should:
- Provide the judge(s) with quick access to what you are asking the court to do, the key points that require decision, and the law relating to those points;
- Implant in the judge(s) your theory and the structure of the case — in other words, define the field on which the battle will be fought;
- Motivate the judge(s) to do what you are asking and provide the judge(s) with a manner of doing so that is consistent with the law and justice. An important part of this involves responding to the concerns that the court is likely to have about granting your request.[4]
Understanding how important the factum is before the hearing, you must ensure that your materials are filed well in advance of the hearing so that the judge will have sufficient time to review them before the hearing
Hearing
At the hearing, Justice Cromwell explains, the factum’s job of the factum is to:
- Provide the structure for your oral presentation;
- Provide a ready reference to key items of evidence and key passages from the authorities;
- Minimize, to the extent practical, the court's need to take notes or to refer to other volumes of material;
- Facilitate the rendering of an oral judgment at the conclusion of the hearing or shortly thereafter.[5]
Increasingly, judges are using electronic documents during a hearing, not paper documents. Counsel must “be on the same page” as the judge: If the judge is using electronic documents during the hearing, counsel must use electronic documents during the hearing for the simple reason that the pagination in the paper copies more likely than not is different than that in the electronic copies.
To facilitate moving amongst electronic documents during the hearing, file a “second factum” or compendium for oral argument. A properly bookmarked compendium that contains only the evidence and authorities to which counsel intends to refer during oral argument is usually welcomed by judges with open arms – it makes life so much easier during the hearing.
Post-Hearing
The third time the judge(s) use the factum is when preparing reasons after a hearing. As Justice Cromwell writes, the argument continues to “talk” to the judge following the hearing.[6] In the post-hearing period, judges frequently refer to counsel’s written argument to refresh themselves about the facts, the issues, and the parties’ positions.
Since the most useful factum provides the judge with a gateway into the record and authorities, a properly hyperlinked factum is of great use to the judge. Similarly, the written argument must be in pdf searchable format so that judges can cut and paste portions and appropriate extracts from them into their reasons.
As the factum’s ultimate purpose is to persuade its reader to accept your client’s position, lawyers should strive to create the “path of least resistance” for the judge to accept, adopt, and copy your argument. To do this, structure and style your written argument the way the judge will write their reasons and follow the style guides and practice directions published by the relevant court (or track the style of writing and organizing that court’s judgments.
[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] 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 6-7.
[3] Of course, for hyperlinks to be useful, they must work. Ensure you rigorously test your materials before filing them to ensure that the hyperlinks will work properly when delivered through your local court’s filing system.
[4] Justice 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 54
[5] Justice 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 54
[6] Justice 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 54