From Our Back Pages

By D. Michael Bain,Q.C.

A MATTER OF FORM*

By the Honourable Allan Thackray, Q.C.

In an article published in the Advocate, entitled “Civil Appellate Practice”,1 I spoke at some length about factums, but not much about form. I now recognize that this topic should have received more attention. Form is important in any written communication that is designed to inform or persuade.

One response I received was from a former colleague who suggested I read the book Making Your Case: The Art of Persuading Judges, 2 by Antonin Scalia and Bryan A. Garner. The authors emphasize that written submissions will be persuasive only if they are brief, objective, simple and written in straightforward English, and contain a clear identification of the issues. These are all matters of form which, for the purposes of this article, I define as including grammar, capitalization, punctuation, font, footnotes, margins, archaic language and any other matter apart from the substance of the document.

Form is important because it is impossible to concentrate on the substance of any written document when one is constantly jolted by repetitive errors in form. Furthermore, errors in form, if repetitive, attract adverse attention to the law firm. They result in judges wondering, often aloud, “How could that law firm allow such a product to be filed?”

* Reprinted from (2010) 68 Advocate 527.

BREVITY Brevity is probably the most important issue I mention in this article. It is the most breached of all the rules of persuasive writing. A good argument, whether written or oral, is the product of lengthy thought. The “product”, like good scotch whisky, should be the distillation of that lengthy process.

I say more about brevity in the section dealing with factums.

EMOTION Written submissions for legal purposes should be objective. Remember, you are speaking on behalf of a party, you are not the party. Judges relate the form and tone of the argument to counsel. Scalia and Garner say this:

Don’t show indignation at the shoddy treatment your client has received or at the feeble and misleading arguments raised by opposing counsel. Describing that treatment and dissecting those arguments calmly and dispassionately will affect the court quite as much. And it won’t introduce into the proceeding the antagonism that judges heartily dislike. Nor will it impair your image as a reliably rational and even tempered counselor. Ideally, you should evoke rather than display indignation.3

CAPITAL LETTERS The use of capitals has become epidemic. In the book Painless Grammar, by Rebecca Elliott, Ph.D., there is this tongue in cheek warning: “Don’t Fall into the Cap Trap. Some Writers think every Word they Capitalize suddenly becomes Exciting or Important.”4 That trap was sprung in a factum I recently read:

The Respondent, formerly the Defendant, knew the Appellant had been charged by the Police with Robbery, Assault Causing Bodily Harm, Common Assault, Intent to Resist Arrest and Dangerous Operation of a Motor Vehicle. Some of the Offences were committed against both the Police and civilians.

I wonder why “civilians” did not get the same treatment as “police”. The McGraw-Hill Handbook of English says:

Capitalize proper nouns. Those include names of people, a particular member of a class, countries, states, geographic areas, streets, deities, days of the month and months, historic events, eras, holidays and races. Examples: Rover, Michael, Sunny Acres, Don Valley Parkway, Toronto, Jack Dempsey, Eiffel Tower. Do not capitalize common nouns. A common noun is a name given to all members of a class: dozen, child, farm, road, city, boxes, boy, structure.

5

I will add to that list the following: plaintiff, defendant, order, statement of claim, statement of defence, list of documents, summary trial, judge, courts, writ.

UNNECESSARY DEFINITIONS There is no need to define the Snafu Scientific Research, Development and Sales Company by saying “(hereinafter the ‘Snafu Company’)” unless by some extraordinary coincidence there are two somewhat similarly named companies.

Or, if your case is all about the minister of the environment, there is no need to define him/her as (“the minister”). Your audience should not be treated as a bunch of dummies. No one will think you are speaking of the minister of defence.

ACRONYMS Another escalating practice is the use of acronyms. Although they are space- saving, their overuse use is detrimental to the persuasiveness of the submis sions. Acronyms emasculate both meaning and feeling.

Some titles are lengthy and cumbersome. However, they can be shortened and retain meaning. For instance, the Tobacco Damages and Health Care Costs Recovery Act: rather than call it TDHCCRA, use Costs Recovery Act. If a company is called “Snafu Scientific Research, Development and Sales Company”, do not use SCRDCS; use “Snafu Company”.

The Honourable Daniel M. Friedman, in Appellate Practice Manual,

6 wrote that it is not unusual to read such as the following in a legal brief:

The Port Association of Freight Forwarders (PAFF) entered into an Agreement Covering Loading Practices in the Inner Harbor (ACLPIH) with the Seattle Chapter of the Union of Warehousemen and Stevedores (SCUWS).

Several pages later, by which time the acronyms were not fresh in the mind of the reader, the following appeared:

Under the ACLPIH, SCUWS was required to consult with PAFF before taking action.

There was no need to define the Association, the Agreement or the Union, or to use acronyms. The following sentence would have conveyed the message, which the above sentence did not:

Under the Agreement, the Union was required to consult with the Association before taking action.

As of 5 December 2009, the author of this Manual, His Honour Judge Friedman, at age 93, was sitting regularly on the Court of Appeal, Federal Circuit. I thought the Honourable Mary Southin, Q.C., would take steps to have annulled the requirement for federal judges in Canada to retire at age 75. I have been waiting for three years.

FACTUMS While I deal with factums separately because there are specific rules governing them, any suggestions I have made above apply to them, and any general remarks in this section apply to any submission designed to persuade.

Factums are the backbone of all appeals. They are studied by the judges well before the appeal is heard. They are the basis for the oral arguments. The factums are the only printed and complete argument available to the judges when considering and writing their reasons for judgment.

Arial 12 is the style of font required. Arial) was chosen by the court as the most readable font, yet Times New Roman keeps cropping up. As to size, it is not acceptable to reduce the size in order to squeeze a factum within the 30-page limit, nor to widen the margins to accomplish the same end.

Reasons for judgment from the British Columbia Court of Appeal, as well as from other courts, use Arial 11 when replicating portions of other cases. So, it can be said that lawyers are not given the flexibility accorded to judges. The reason may be that so many judges are elderly and have failing eyesight. In any event, the rule is: “Not one word in a factum is to be in other than Arial 12.”

Footnotes persist in spite of frequent criticism of their use by the court. Factums are not textbooks. They should be an easy read. Footnotes are not well received by the court because they break the train of thought. As well, they are viewed as an attempt to overcome the space allotment.

Brevity is as much a factor in factums as in any form of written submission, and maybe more so in that appellate judges have an enormous number of factums to read each week. Most factums need no more than 15 pages of the 30-page allotment, yet few come in at that figure. Scalia and Garner say this:

Ponder this: judges often associate the brevity of the brief with the quality of the lawyer. Many judges we’ve spoken with say good lawyers often come in far below the page limits—and that bad lawyers almost never do. Brevity requires ruthlessness in wringing out of your argument everything that doesn’t substantially further your case: entire points that prove to be weak; paragraphs or sentences that are unnecessary elaboration; words and phrases that add nothing but length.7

Many words and phrases are overused in factums. Others are simply unnecessary. The most commonly overused word is “that”. For example, “The court said that...”

The “ibids” and “supras” are unnecessary.

The use of “learned” (indeed, it is usually written as “Learned”) when referring to the trial judge is unnecessary and, to my way of thinking,

sounds like pandering. However, I must concede that some of our Court of Appeal judges still use that prefix.

The phrase “it is respectfully submitted” should be used sparingly. The whole of the factum is a submission, and it is not necessary to repeatedly make the point.

An unnecessary and to my way of thinking incorrect phrase is “as she/he then was”. If you write about Pierre Trudeau and deal with what he said or did when Minister of Justice, you do not say, “as he then was”.

Overused words and the use of archaic phrases and language not only lengthen the text, but become a distraction to the reader. You should not do anything to distract a judge of the Court of Appeal.

AFTERTHOUGHTS Since writing the above I have received some suggestions. One was from Mr. Christopher Harvey, Q.C., editor of the Advocate. He suggested I refer to certain sections of H. Montgomery Hyde’s book The Life of Lord Birkett of Ulverston. I did so and noted the following passages. The first refers to Lord Birkett’s reflections on the Nuremberg trials:

Birkett’s preoccupation with the repetitious use of certain words and expressions both by counsel and witnesses caused him to list several...which, as he jocularly noted in his diary, seemed to him in his “tired state of mind” to be “crimes against humanity”, in addition to those with which the defendants were charged. In particular, he noted the following: argumentation, orientation, activated, motivation, finalize, objectivity, visualize, concrete observations, and reprivatization ...8

The author also wrote about Lord Birkett’s presidential address to The English Association, entitled “The Magic of Words”.

Birkett remarked that, if ever he were left on a desert island and allowed one book, he would take the 13 volumes of the Oxford English Dictionary and argue that they constituted a single volume. He went on to say:

You cannot spend long years in the law, as I have done, without being conscious that the lawyer for many of his purposes—his statutes and wills and conveyances and the like—must resolutely eschew the words that have colour and content himself with the “hereinbefores” and “aforesaids” in order to achieve precision. But the lawyer has moments when he, too, may employ the words of colour, as in that noble piece of English which made up the oath of the foreman of the grand jury in other days, or in the judgments of men like Lord MacNaghten, Lord Sumner, and the great and distinguished father of our distinguished chairman today [Lord Birkenhead]... In a language like English it is sometimes said there are no synonyms; there is the one perfect word for the occasion. But it yet remains true that we have many words in use where it is difficult to find any real difference of meaning, but there may be this tremendous difference in “colour” or

quality. It was said by that great authority, Jesperson, that when Canning wrote the inscription which appears on the monument to Pitt in Guildhall, an alderman expressed grave displeasure at the words Canning used, which were: “He died poor” and the alderman wished them to be changed for the words “He expired in indigent circumstances”. It approaches too nearly to a good joke for me to be quite satisfied of its truth, but it illustrates this use of words about which I am speaking. It is my unfortunate lot to hear sometimes in cases concerning the Rent Act phrases such as “He was evacuated to alternative accommodation”, instead of “He was sent to another home”. Under certain rooms on the plan were the resounding words “ablution cubicle” but it turned out to be an ordinary washroom, which seemed a little disappointing after the promise of the original description. On that occasion I learnt further that “long-term ablution” was the phrase used when you were speaking of a bathroom, and “short-term ablution” when you were merely speaking of a wash-room. So when I hear of targets, and overall targets, and global targets, and things being adumbrated or visualized, or finalized, or indeed envisaged, or circumstances eventuating or transpiring, I think of that other aim of this Association, “To uphold the standards of English writing and speech”, and I try to act accordingly when it lies in my power.9

I wonder what Lord Birkett would have said about the following from an article in the Advocate:

In 1948 he was called to the bar of [province deleted] and in 1954 he married [name deleted], his wife for 55 years.

While on a somewhat different topic than my article, I think it worthwhile to mention what Lord Birkett said about the desired qualities of an advocate.

He said an advocate should be courageous, resolute, able to make up his mind and take decisions and stand by them. He should be courteous and good-mannered, able at all times to control his temper, severe when severity is demanded and gentle when gentleness brings its own rich reward. Lord Birkett summarized this as follows:

In a word, the advocate should bring all the qualities of his own personality to the great task of persuasion and employ them as the circumstances dictate.10

On the art of persuasion Lord Birkett said:

[T]he advocate must have made himself master of all the facts; he must have a thorough understanding of the principles and rules of law which are applicable to the case and the ability to apply them on the instant; he must gauge with accuracy the atmosphere of the court in which he pleads and adapt himself accordingly; he must be able to reason from the facts and the law to achieve the end he desires and he must above all have mastered the art of expressing himself clearly and persuasively in acceptable English.11

On several occasions lately the book Eats, Shoots and Leaves by Lynne Truss has been brought to my attention. (If you put the word “pandas” at the beginning of the title and do a bit of revising you might get the joke.) While an alleged “#l New York Times best seller”, it does not make for bedtime reading. The first 60 pages are about the use, or misuse, of apostrophes.

The section on commas is more interesting. As a judge I had many legal assistants and law clerks who consistently inserted a comma after the third word in every sentence. (In the preceding sentence a comma would appear after the word “judge.”) The author defined this as “commaphilia”. On the other hand she said:

Meanwhile, lawyers eschew the comma as far as possible, regarding it as a troublemaker; and readers grow so accustomed to the dwindling incidence of commas in public places that when signs go up saying “No dogs please”, only one person in a thousand bothers to point out that actually, as a statement, “no dogs please” is an indefensible generalization, since many dogs do please, as a matter of fact; they rather make a point of it.12

ENDNOTES

1. (2008) 66 Advocate 525. 2. Eagan, MN: West Publishing, 2008. 3. Ibid at 34. 4. (Hauppauge, NY: Barron’s Educational Series, 1997) at 7. 5. 2nd Can ed (Toronto: McGraw-Hill, 1970) at 172. 6. Friedman, Appellate Practice Manual, Priscilla M

Schwab ed, 1992. The passages quoted are from

Scalia, supra note 2 at 120. 7. Supra note 2 at 98. 8. Norman Birkett: The Life of Lord Birkett of Ulverston (London: Hamish Hamilton, 1964) at 515. 9. Ibid at 550. 10. Ibid at 553. 11. Ibid at 554. 12. Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation (New York: Gotham Books, 2004) at 77 in the illustrated edition.