Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 11 www.lawtimesnews.com BY SHANNON K ARI For Law Times I t has been two decades since a paper by Ontario Court of Appeal Justice John Laskin on how to write an effective factum was published by The Advo- cates' Society Journal. The straightforward sugges- tions included in "Forget the wind-up and make the pitch" are still easy to access since the paper is posted under the pub- lications and speeches section of the court's website. How frequently the advice is actually followed, however, may be another matter. For example, written submis- sions in every hearing before the Supreme Court of Canada are available on its website. Even a brief perusal of factums (or facta) in current cases to be heard by the highest court in the country shows that common bad habits pointed out by Laskin in his 1999 paper are still alive and well. His advice, at its core, is about the importance of readability in a factum and clearly defining your argument at the beginning. A passive voice, legal jargon and overstatements are some of the things to be avoided. As well, just because there is a maximum number of pages permitted by a court does not mean a factum has to be that length. It is extremely rare that a fac- tum filed at the Supreme Court is shorter than the maximum permitted and, even at this high level, the submissions can be dif- ficult to follow on first reading. One of the reasons that Laskin's unofficial guidelines for effective factum writing are not always followed can be explained in the way these submissions are approached, suggests Toronto lawyer Caroline Mandell. "Lawyers are professional writers. But they need to focus their thinking on the readers," says Mandell, who is a legal writ- ing coach and was counsel for a decade to the judges on the On- tario Court of Appeal. "You can assume that ev- eryone has the best of inten- tions and wants to bring their 'A' game. However, we tend to grade ourselves more generously than we do for other people," she notes. According to Mandell, that may account for "the gap" in what a lawyer hopes to accom- plish when starting a factum and the actual final product that is submitted to a court. "We need to put ourselves in the reader's head, before we even go to the keyboard," she adds. For written submissions in a legal proceeding, the most im- portant reader of course is going to be a judge or a panel of judges. "They know the law, but when it comes to your case, they are a lay reader. Lawyers need to understand that judges have an enormous cognitive burden. Judges want help to make a good decision and the factum really matters," Mandell says. Greg Temelini, a partner at Wright Temelini LLP in To- ronto, says that while writing an effective factum is the goal of ev- ery lawyer, that does not mean it is an easy task. "Written advocacy is prob- ably the toughest job for a litiga- tor. The glamour is in the oral argument, but the written advo- cacy is usually more important," says Temelini, who is the moder- ator of a Law Society of Ontario event on factum writing to be held on April 30. "The overview is essential. It sets the road map. Judges need to know where you are going to end up. I don't just want judges to un- derstand the case but also how I see the case," Temelini says. Mandell agrees the signifi- cance of the overview section cannot be overstated. "It is the single most impor- tant real estate in your factum, yet it is squandered more often than not," she says. As a judge once described it to her, "trying to navigate through a poorly done overview is like putting together a jigsaw puzzle without having the picture on the box," she says. The overview is the first op- portunity to outline your core argument about what the case before the court is about, says Denise Sayer, a lawyer at Paris & Company, a business litigation firm in Toronto. "It is all about the narrative. The overview and the facts are the first two things the court will look at. You need a compelling narra- tive so, from an equity perspec- tive, the court will think your cli- ent should win. I try to tell a story that I can explain to my mother, who is not a lawyer, says Sayer, who is among the panel mem- bers at the Law Society of Ontario event along with Mandell. Structuring the facts section effectively is also essential, she says. "There is always a human ele- ment." According to Sayer, even com- mercial litigation that may appear somewhat dry on the surface will include some human back story that can be highlighted. "You are wasting an advocacy opportunity if facts are treated neutrally," Sayer suggests. At the same time, she says, this does not mean cherry pick- ing what details you include. "You do nothing for your client by hiding your bad facts. As well, to build credibility for every single factual point, there should be a footnote to verify it," Sayer states. Temelini says going through the record before writing the factum is the "long division" that is required in the facts section. "Emphasize the facts that you believe are central to the out- come. It is about fitting them into the framework," he says. All three lawyers agree that the number of issues contained in a factum should be stream- lined as much as possible. "Be upfront and deal with the central issues. You cannot possi- bly deal with every single thing," says Temelini. Caroline Mandell says lawyers, who are writers, 'need to focus their thinking on the readers.' Legal jargon should be avoided Clear writing important for lawyers FOCUS See Break, page 12 Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit www.canadianlawyermag.com/newswire-subscribe THE LATEST NEWS Keep abreast of essential late-breaking legal news and developments. THE BEST COMMENTARY Access trusted analysis and opinion on the cases and changes that are shaping the legal landscape. DELIVERED WEEKLY Your profession can change quickly, which is why you need the freshest, most recent information. FOR READING ON ANY DEVICE Get the news and opinions you need on any device. Whether you read at work, or on the go, the newswire adapts to Untitled-1 1 2019-03-12 1:42 PM LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online

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