Top Tips for Presenting Arguments in Court

Formal legal advocacy is a very difficult task to do well. Whilst most people can express themselves adequately in normal everyday life, persuading a Judge to accept a complicated legal and factual case in the high-pressure environment of a courtroom is a different ball-game.

Barristers and solicitors spend many years, and tens of thousand of hours, learning different ways to present arguments in court. Some styles will work better in one forum than another. Some points will be more persuasive to one type of Judge than another. Some legal points will be differently received depending on how they are expressed. Others will work well in writing but not orally. Advocacy is very much an art, not a science.

Despite this, there are some general rules which any advocate should always bear in mind when preparing submissions for court.

Relevance

The court has limited time, and limited attention, for your case. You must stick to what is relevant. Something might be related, but that does not make it relevant. The acid test should be: does the court need to know this piece of information in order to decide what I want it to decide? If you are only including the information because it is interesting (to you) or because you have already spent time investigating it and don’t want that time to have gone to waste, then you should be prepared to leave it out of your submissions.

A major advantage of instructing a solicitor or barrister to help you with your case is that they will be able to tell you what is relevant and what is not.

Law

The court does not decide a case based on preference. The role of the court is to apply the law to the facts. Your submissions must therefore always be based on the law. The starting point should be: what is the legal test that I need to show has been satisfied? Once you have that starting point, you can explain why (by setting out the relevant facts) the decision should be made in your favour.

It goes without saying that solicitors and barristers are experts in the law, and can help you identify what the relevant legal test is at an early stage so that information and evidence can be gathered and presented which is relevant.

Best Arguments

You may be able to think of 10 reasons why the court should agree with you, but you should consider whether all 10 are needed. More often than not, there will only be a small number (two, perhaps three) of good arguments on any point: the additional arguments will either be repetitions, or bad points. It is better to spend more time expressing a small number of good arguments than to rush through a larger number of less convincing arguments. Less can be (and usually is) more.

An experienced barrister or solicitor will understand which points are good, and which are bad, because they will have tried making various arguments in the past with varying degrees of success. The professional judgment involved in deciding which arguments to include and which to leave out is one of the biggest benefits or working with good quality barristers and solicitors.

Logic

After you have identified the most persuasive arguments (and dropped the rest), it is important to present your arguments in a logical order. This means ensuring that each new point ‘flows’ on from the one(s) before it. If you need to establish two points before a third one makes sense, then you should not address the third point first. Often, but not always, logic goes hand in hand with chronology.

A good barrister or solicitor will be able to identify a gap in the logic of your case, and ensure (long before you get to court) that the gap is filled wherever possible so that the court can be taken through each point in the correct order.

Simplicity

There are various ways of expressing this tip:

  • K.I.S.S. (keep it simple, stupid)

  • If you can’t explain it to a child, you don’t understand it yourself

  • Unless you can sum them in one paragraph, your aims are too diffuse

Judges (and other advocates!) will thank you for making your points as simple and concise as possible. The arguments do not get any better simply by being long-winded, or using unnecessarily complex language. Being able to express an argument simply requires a good understanding of the argument.

A well-prepared barrister or solicitor will have put the time in to properly understand and analyse the case long before standing up in court, and so will be able to express it simply and respond nimbly to any questions that the court may ask.

Accurate and Fair

Accuracy goes without saying: an advocate should not misrepresent anything to the court.

Using a caustic tone, or needlessly antagonistic rhetoric, when describing or addressing the other party’s position is distracting (at best) or annoying (at worst). No Judge is going to find your points more persuasive simply because you have expressed vitriolic disdain for the opposition’s points. Let your points speak for themselves, and understand that criticism of the other side’s position does not require insult, ridicule, or passive-agressive comment. If you find yourself saying “with respect” before commenting on something the other side has said, then you are probably on the wrong side of the line.

Often, the compulsion to launch antagonystic or ad hominem attacks, instead of focussing on a clear and compelling argument, stems from being emotionally involved in a dispute. A good barrister or solicitor is able to approach (and then present) a case without that emotion, and so will be better able to avoid these pitfalls.

Contact Hamshaw today if you need the advice or assistance of an experienced barrister or solicitor to help prepare or present your arguments.

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