An important skill for an advocate is to draft effective and persuasive written submissions. The written submissions will condense the essential facts and the legal arguments you will be advancing in a case.
This post is based on a note I circulated to my own team members. They contain my thoughts on what I feel make effective submissions. Some of the elements below may be a matter of personal or team style. Don’t take any of the suggestions below as the only way of crafting your submissions. See what may work for you, and adapt it to your style or your firm’s style.
#1: Summary Section: Pitch to the New Reader
For written submissions, you must have a summary of your submissions at the beginning. That summary is crucial in capturing the reader’s attention.
Take it that your first page is being pitched to the notional new reader (New Reader). Assume that this New Reader does not know the file, does not know the facts, and may not know the entire depth of that area of the law. With the New Reader in mind, how do you distill the facts of your case and basic background in just a few paragraphs? Then, how do you distill the summary of your legal arguments in the next few paragraphs?
Ask yourself if the New Reader were to just read the summary of your submissions, could you win your case? Draft your summary with that question in mind.
I will continue to refer to this New Reader in the points I make below.
#2: Accurate Summary of Arguments
That summary of your arguments must then mirror and be a summary of the expansion of your arguments later on in the submissions.
I have worked with lawyers where the summary in the submissions lists out 8 arguments to be advanced. Then the main body of the submissions only has 5 arguments. That cannot be. It was a situation where the drafter realised that the 8 arguments actually should be condensed into just 5 arguments. The summary must reflect the main body of the submissions.
#3: The Conclusion First
Whenever you go into each argument in the main body, have your first paragraph summarise that argument first. You are setting forward your conclusion in that first paragraph.
Assume again that you are pitching to the New Reader: can you convince the New Reader in that first introductory paragraph what your argument is and how good it is? Can the New Reader skip the rest of that section and still understand your argument in that introductory paragraph? That will be the test as to how strong your first paragraph is.
By having that strong first paragraph of each section, it also convinces the New Reader to want to read more and to know what this section will expand on.
#4: Verbal Signposts
Leave markers, use lead-ins and plant verbal sign posts.
Leaving markers mean that you will give a tease or a hint of things to come. It will keep the New Reader interested and will help to guide the new reader for a later section. So for example, you may be writing out the chronology of events and you want to keep it clinical. You can insert a sentence that will leave a marker of things to come: “As will be elaborated further below, this particular letter is crucial in capturing the collateral agreement between the parties.”
Using lead-ins will help to guide the New Reader from section to section, or the order of things to come. E.g.: “Having concluded on the chronology of events, the next section will elaborate on the relevant legal principles governing minority oppression.”
Plant verbal sign posts. You can mark out where you are on your own list of arguments. E.g. “First”, “Secondly”, “Thirdly”, “The final argument”, “In conclusion on this point”.
#5: Effective Headers
Break up lengthy submissions with headers, in order to separate out your arguments or to divide up the facts.
This article already demonstrates the use of headers to divide up my 10 points.
You don’t have to stick to bland headers but you can also incorporate arguments or key facts into the headers. Some of the headers can already incorporate the argument within its wording. For example, instead of having a header that just states “Liquidated Ascertained Damages”, the header could read: “Plaintiff has Failed to Prove Damages under the LAD Clause”.
#6: Coloured Pictures = Thousand Words
Incorporate images, flowcharts, and diagrams into the submissions. It makes it easier to follow and to also guide the New Reader during oral submissions.
As an example of a diagram showing the relationship between parties, see the High Court case of TC Chemical Sdn Bhd v Petrozchem Sdn Bhd  MLJU 818. One of the counsel successfully used a diagram as part of the submissions. This diagram was in the end incorporated into the Judge’s grounds of judgment itself:
So in another case, I wanted to highlight damaging admissions made in a WhatsApp conversation. I extracted an image of that conversation, highlighted the admissions in colour, and then pasted that image into my submissions itself. This made it more seamless for the reader to see the source document itself, rather than having to turn to another bundle of documents.
A mistake I sometimes see is the advocate incorporating the images into the document but with no lead-in and no explanation to summarise the document. Again, assume that the New Reader is not familiar with that particular image or document you have extracted and pasted into your submissions. Have sufficient lead-in sentences to explain certain significant elements of that document or extract you are setting out below. Guide the New Reader with your words combined with that picture.
#7 Reference to Cases
When referring to cases, my standard style of reference is along these lines:
“The Court of Appeal in X v Y  MLJ 123 (CA) involved [certain facts] and then held that [summary of decision or proposition of law]. Gopal Sri Ram JCA (as His Lordship then was) held that: [quotation from case]”
You may sometimes need a few sentences to explain the brief facts. Next, highlight the point of law or the applicable principle. With those sentences, then move on to set out the quotation.
You want the new reader to read those first few punchy sentences to understand the applicable facts of that case, and why the principle of law is relevant to your case. Even if the New Reader does not read the quotation, you want to already convince the New Reader of the relevance of this case you are citing.
#8: Shorten Sentences
A bugbear of mine. Seeing long sentences and it is difficult to decipher the argument or the facts. Keep sentences short. Helps make the argument punchier and easier to follow.
Example of a very long sentence:
This Honourable Court has no jurisdiction over the Defendant in respect of the subject matter of the claim or relief or remedy sought in these proceedings and/or Malaysia is not the proper forum for the dispute given that the Plaintiff’s claim and/or the dispute is premised on the Agreements which clearly provide that the agreed forum for any litigation arising out of or relating to the Agreements shall be in the Japanese courts.
The Defendant’s argument is two-fold. First, this Honourable Court has no jurisdiction over the Defendant in respect of the subject matter of the claim or relief sought in these proceedings. Secondly, Malaysia is not the proper forum for the dispute. This is because the Plaintiff’s claim and/or the dispute is premised on the Agreements which contain an exclusive jurisdiction clause of the Japanese courts.
#9: Remove Verbiage
I remove all of such references below:
- “May it please Your Lordship”
- “Much obliged”
- “It is respectfully submitted”
#10: Read Other Submissions
Finally, try to read written submissions drafted by other counsel and in other proceedings. I learn so much from reading such samples, and asking myself how to further improve my own drafting.