Introduction

Written persuasion now provides an essential opportunity for lawyers to persuade judges. Yet, even in America, where lawyers have used written persuasion for a century or more, lawyers’ written advocacy skills remain under-developed. In this column, I will suggest some causes of the problem and some possible solutions. But, first, I want to set the context by tracing the rise of written advocacy in England and Wales, Australia, and America.²

A. England and Wales

‘[C]ases can be won and lost on skeleton arguments.’³

1. History

(a) Pre-history

In medieval times, lawyers pleaded in open court.⁴ Parties exchanged pleadings orally when the defendant appeared at the bar of the court (personally or by a lawyer) and the plaintiff stated the plaintiff’s demand or complaint.

In the sixteenth century, pleading became the beginning of the litigation lawyer’s task rather than the end. Pleading also became linked with the introduction of written pleadings and led to this anonymous comment: ‘Pleading is now got all into paper and since that, of late, men make it but a snare and trap and piece of skill’.⁵ A different form of written pleadings exists today, but there remains a general perception of an enduring British tradition of presenting cases orally.

Although English lawyers may ‘still fondly believe that our great oral tradition is what sways the court’,⁶ increasingly judges ‘form pre-trial opinions of the likely outcome, and these they derive from written material’.⁷ The trial or appeal then becomes ‘a process to measure the judge’s pre-formed view, however strong that may be’.⁸ The following sections trace the trend to written argument in England and Wales.

(b) 1960s and 1970s

In 1963, a commentator noted the ‘outstanding difference’ between the USA and England: ‘briefs are required in the United States, whereas in England they are not’.⁹ In the USA, a brief comprises:

‘a full-dress argument in writing … The appellant serves his brief on the other side well in advance of the time for oral argument, and the respondent then serves his answering brief on the appellate … Sometimes the appellant serves a reply brief.’¹⁰

The commentator said that, in England, in the early 1960s, ‘such a document is virtually unknown’.¹¹

In the later 1960s, the English Court of Appeal (in 1967) strongly disapproved when a litigant-in-person presented to the court an American-style written appellate brief. Lord Justice Dankwerts called it ‘wholly irregular and contrary to the practice of the court … [it] should not be allowed as a precedent for future proceedings’.¹² Up to the late 1970s, the higher English courts ‘regarded the idea that a party could put before the court a written skeleton argument setting out his case with abhorrence’.¹³

(c) The 1980s

Slowly through the 1980s, the idea of a written submission became permissible and even expected in important cases. From here, the oral tradition started to dilute.¹⁴

In 1982, Lord Donaldson issued a Practice Note for the Court of Appeal, Civil Division. The Practice Note discussed the Scarman Committee’s recommendations on civil appeals practice. The Scarman Committee:

‘considered and rejected a change to the system of written briefs and limitations on the time allowed for argument which is the practice in some other jurisdictions.’¹⁵

The Committee rejected the American approach because:

‘although such an approach has advantages, it is alien to the British tradition of oral presentation and argument and is not necessarily less expensive because of the time which has to be devoted to preparing highly complex briefs.’¹⁶

However, although he agreed with the Scarman Committee, Lord Donaldson also said that substantial time could be saved if:

‘before an oral hearing judges should be in a position to inform themselves of the general background to the dispute, the decision of the court below and the effective grounds of appeal.’¹⁷

And, in some cases, it ‘may be desirable to ask for … a skeleton of the argument for both parties’.¹⁸ Lord Donaldson said ‘there is really immense scope for innovation, experiment, trial and … error’.¹⁹

(d) 1990s

Innovation came in 1995. Then, parties to a civil dispute in the High Court’s Queen’s Bench and Chancery Divisions had to provide a written skeleton argument before the hearing of every action, and, where necessary, a closing written submission.²⁰

A short time later, Lord Woolf’s reform of the civil justice system led to the 1998 Civil Procedure Rules.²¹ From then, each court has set out in practice guides the content and detail the court requires in written arguments.²²

(e) The present

England has moved so far toward writing core arguments that Justice Lightman said in 2004:

‘[A]dvocacy … today … transcends its traditional form of oral presentation in court and includes and finds critical expression in written forms in which expertise is called for of the advocate and which can have a decisive effect on the outcome of a case … Counsel now requires expertise at least as much in preparing [written skeleton arguments] as in making oral submissions … The tedium in preparing a skeleton pays off.’²³

Thus, written advocacy in England and Wales now provides ‘an essential tool which enables you to damage your opponent without even opening your mouth’.²⁴ It provides a ‘unique opportunity, not to be wasted’.²⁵

2. Causes

Several causes may explain the trend to written advocacy in UK civil practice. The causes most often cited include the desire to reduce the time of hearings (and thus costs) and to move some of the responsibility for the running of cases from lawyers to judges.²⁶ Andrew Goodman says written argument arose from:

‘our new obsession with case management, and the Treasury’s bizarre idea that judges are “service providers” who should operate for the benefit of consumers on time/cost principles.’²⁷

3. The opportunity in the UK

A skeleton argument aims to persuade the court that your argument represents the most accurate and compelling statement of the case. For the skeleton argument to persuade, it must be persuasive. This needs skill in written advocacy honed in American appellate courts through decades of settling briefs, but underdeveloped in England and Wales.

Inadequately taught, written advocacy in England and Wales remains ‘in its infancy’²⁸ in both development and sophistication. Only recently have judicial proponents of good written argument started to offer advice to practitioners.²⁹

The best way forward in offering such advice involves distilling the experience of more than a century of American brief-writing, and fusing it with judicial commentary from England and Wales.³⁰

B. Australia

‘The courts have changed, probably forever, the precise skills of advocacy that they enlist.’³¹

1. History

In the English tradition, oral argument remains important in Australian courts.³² But, in both civil trials and appeals, the use of written materials has increased greatly.³³

As in England and Wales, Australian courts have shifted to written argument ‘simply to cope with the pressure of business’.³⁴ The following sections trace the trend to written argument in Australia.

(a) 1900s to 1950s

Australia’s highest court, the High Court, started in 1903. For most of its history, the High Court relied almost solely on oral argument. In the 1950s, the High Court Rules provided a voluntary procedure where a party to an appeal could file a ‘written case’ summarising the circumstances from which the appeal arose, and setting out the party’s contentions with reasons.³⁵ When he retired in 1952, Chief Justice John Latham said the judges thought ‘if such a practice is established, and widely used, it will help towards clarity of argument and will save both Bench and bar a great deal of time’.³⁶

(b) 1960s to early 1980s

But Latham’s successors preferred the oral medium. Under Chief Justice Garfield Barwick (1964-81), the court had ‘no disposition to move to written argument or to confine oral argument to rigid, invariant time limits’.³⁷

Barwick’s immediate successor, Harry Gibbs (Chief Justice from 1981-87) thought written submissions were ‘not as effective as oral argument in bringing the attention of the court quickly to the heart of the problem’³⁸ and could ‘never … be a satisfactory substitute for oral argument’.³⁹

So, until 1982, the High Court relied almost solely on oral argument.⁴⁰ From 1982, parties had to submit only a written outline of their main arguments before oral submissions.⁴¹ Then, from 1984, parties had to also submit a written list of authorities.⁴²

(c) Late 1980s to present

From 1987, under Chief Justice Anthony Mason,⁴³ parties had to file more detailed submissions covering all main arguments.⁴⁴ And, from the mid-1990s, under Chief Justice Gerard Brennan, comprehensive written argument formed a standard requirement for all cases.⁴⁵

From January 2005, under Chief Justice Murray Gleeson, the High Court Rules gave even greater emphasis to written submissions, with some applications for leave and special leave to appeal to the High Court decided solely on written materials.⁴⁶

All Australian appellate courts now require some form of written argument before oral argument.⁴⁷ Most intermediate appellate courts require exchange of written submissions before the hearing.⁴⁸

Written argument has, therefore, become the first opportunity to persuade in many Australian courts. Thus, ‘in the High Court, as in other courts, written advocacy is now and will continue to be very important’.⁴⁹ In shifting to written argument, ‘the courts have changed, probably forever, the precise skills of advocacy that they enlist’.⁵⁰

2. The opportunity in Australia

Like England and Wales, the art of producing persuasive written argument in Australia remains underdeveloped.⁵¹ The written media familiar to Australian advocates, ‘the opinion’ and ‘the advice’, provide an ‘insufficient introduction to persuasive argument in writing’.⁵²

Written submissions ‘tend to be too lengthy so that the arguments are lost in the forest of detail’,⁵³ or ‘too scanty so that the points are listed seriatim like particulars of negligence’⁵⁴ without the ‘supporting elaboration which gives flesh and blood to the bare bones of the propositions.’⁵⁵ In the process, ‘persuasion, which is the object of all presentation, seems to have been overlooked’.⁵⁶

Thus, there exists ‘a particular need to pay close attention to the preparation of persuasive written submissions in Australian courts’.⁵⁷ Like England and Wales, Australia looks to American practice.⁵⁸

C. America

‘In the American practice [oral] argument … is expendable … But a brief is a necessity.’⁵⁹

‘Brief writing has become the appellate advocate’s most important skill. If trends continue, it will soon be the only skill that matters.’⁶⁰

1. History

Like Australia, early appellate practice in America followed the English tradition of comprising ‘an essentially oral medium’.⁶¹ In the early years of the American republic, appellate courts neither required nor expected a written argument.

Around 1800, the US Supreme Court required attorneys to supplement oral argument with bare-bones ‘Points’. These ‘Points’ stated broad legal points an advocate intended to discuss during oral argument, and sometimes included citations to authorities.⁶² Points did not involve legal analysis or explain authorities, and did not constitute a stand-alone representation of the argument itself.⁶³

In the early decades of the 1800s, a few attorneys started to rely solely on written arguments, but only rarely. But, gradually, attorneys introduced varied and sophisticated techniques into their written submissions.⁶⁴ They:

‘added narrative description of facts and issues, explained or discussed authorities, introduced hypotheticals and policy arguments, made emotional appeals, and applied general principles to the case at hand. More and more presentations became fuller and more persuasive.’⁶⁵

The trend led to the general use of fairly independent and persuasive written submissions by the 1880s. By the 1900s, the modern written appellate brief had become entrenched.⁶⁶

2. Causes

The reasons for the shift to written argument in America remain unclear. Commentators have speculated that distance and difficulty of travel in the nineteenth century might have played a role-rather than travelling to court, attorneys could send their written submissions.⁶⁷ Written arguments also saved judges’ time:

‘In the United States of America … abundant litigiousness, overlapping jurisdictions and a large population have long necessitated the adoption of written means to maximize the efficient use of the decision-maker’s time.’⁶⁸

In the mid-19th century, the Supreme Court started limiting oral arguments to two hours, and later to two attorneys a side. By the 20th century, the time limit reduced to 30 minutes, and most appellate courts today limit attorneys to 15-30 minutes and 1 attorney a side. Growing caseloads and fewer judicial resources again provide the reasons.⁶⁹

3. The opportunity in America

Lawyers in America now win or lose their case in the brief:⁷⁰ ‘Writing the brief of the appellant is the most important task in pursuing an appeal. You get the job done in the brief-or you lose.’⁷¹ Whether an appellate brief or pleadings filed in a trial, the quality of a lawyer’s writing can determine a judge’s decision even before the judge hears oral arguments.⁷²

Yet, for more than a century, American commentators have criticised lawyers’ brief-writing skills and problem-solving skills, especially new lawyers.⁷³ Key problems the courts encounter include muddled presentation and the inability to delineate key issues.⁷⁴ Other criticisms focus on writing style, such as ‘legalese’ and redundancy.⁷⁵

Critics have traced these problems to several causes. Those causes include the law school curriculum,⁷⁶ status and staffing issues,⁷⁷ and the way law firms allocate brief-writing tasks.⁷⁸ The ‘case method’ of teaching provides a more fundamental reason,⁷⁹ as I will explain in Part II of this series on written persuasion.

Footnotes

* LLB(Hons). Troy Simpson heads Research One Pty Ltd, a specialist legal research and writing company. Among other publications, he is the author of Win More Cases: The Lawyer’s Toolkit–With a Foreword by Justice Michael Kirby (2008).

2 I am indebted to Sarah Green and Julie Masal for their help in researching and writing this article.

3 The Hon Mr Justice Lightman, ‘Advocacy-A Dying Art?’, address to the Chancery Bar Association Conference, 26 January 2004.

4 For several centuries, legal training remained directed to this task.

5 Anonymous, (1672) Treby Rep, MS In Middle Temple, 717 cited in Law Reform Commission of WA, Review of the Criminal and Civil Justice System in Western Australia, Project No 92 (1999), Volume 1, Consultation Papers, 330.

6 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), vii.

7 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), vii.

8 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), vii.

9 Delmar Karlen, Appellate Courts in the United States and England (1963) 149.

10 Delmar Karlen, Appellate Courts in the United States and England (1963) 149.

11 Delmar Karlen, Appellate Courts in the United States and England (1963) 149.

12 Rondel v Worsley [1967] 1 QB 443, 509c quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xiv.

13 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xiv. People refer to ‘skeleton arguments’, ‘outline submissions’, and ‘written submissions’. The terms are used to describe the same thing in all UK courts other than the House of Lords. In the House of Lords, there is a specific document called the ‘appellant’s case’ or the ‘respondent’s case’, which performs the same function as a skeleton argument in the lower courts. But the House of Lords version tends to be more detailed than skeleton arguments in the lower courts and must be cross-referenced to the various bundles before the House.

14 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xiv.

15 Lord Donaldson, Practice Note, 4 October 1982 [1982] 3 All ER 376, 377ff quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv.

16 Lord Donaldson, Practice Note, 4 October 1982 [1982] 3 All ER 376, 377ff quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv.

17 Lord Donaldson, Practice Note, 4 October 1982 [1982] 3 All ER 376, 377ff quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv.

18 Lord Donaldson, Practice Note, 4 October 1982 [1982] 3 All ER 376, 377ff quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv.

19 Lord Donaldson, Practice Note, 4 October 1982 [1982] 3 All ER 376, 377ff quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv.

20 Practice Note of 24 January 1995 on Case Management in Civil Litigation for use in the Queen’s Bench and Chancery Division of the High Court, [1995] 1 All ER 385 quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xv. A similar Practice Direction for use in the Family Division shortly followed, [1995] 1 FLR 456.

21 Although these do get updated on a regular basis, their underlying premise remains the same.

22 By his reforms, Lord Woolf wanted to keep the best aspects of the adversarial approach, combined with a more interventionist management role of the courts. His reforms have had most significance for the pre-trial stage of most civil cases, but have implications also for the trial stage. The reforms have controlled the excessive use of documents and expert witnesses, and submission of a written witness statement has almost entirely replaced oral examination-in-chief.

23 The Hon Mr Justice Lightman, ‘Advocacy-A Dying Art?’, address to the Chancery Bar Association Conference, 26 January 2004 quoted in Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006) xvi. ‘The decline of skeleton arguments being, in fact, skeletal’ also shows the importance of written advocacy (Goodman, above).

24 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), xviii.

25 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), xviii.

26And used by Lord Woolf as the basis for his 1998 reforms of the civil procedure rules. See Final Report on Access to Justice (1996) at http://www.dca.gov.uk/civil/final/sec3a.htm (accessed 1 June 2007).

27 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), xiii-xiv.

28 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), xiii.

29 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), xiii.

30 Andrew Goodman, Influencing the Judicial Mind-Effective Written Advocacy in Practice (2006), 30.

31 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 15.

32 See, for example, Chief Justice Murray Gleeson, ‘The State of the Judicature’, address to the 35th Australian Legal Convention, 25 March2007, 9 (‘In Australia, we continue to employ, even at the highest level, appropriately directed oral argument in combination with written material … rather than the North American practice of relying very largely on written presentations’); David Bennett, ‘Argument before the Court’, in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 32 (‘argument before the [High] Court remains firmly in the oral tradition, in contrast with the practice of the US Supreme Court’); Kenneth Hayne, ‘High Court Rules 2004′, introductory remarks at seminars for the legal profession, October-November 2004 (‘oral advocacy in the [High] Court remains of central importance’).

33 Chief Justice Murray Gleeson, ‘The State of the Judicature’, address to the 35th Australian Legal Convention, 25 March2007, 9.

34 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 15; see also High Court of Australia, Annual Report 2004-2005, 7; introduction to Andrew H Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’ (2002) 22 Australian Bar Review 149.

35 See David Bennett, ‘Argument before the Court’, in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 32.

36 ‘Retirement of the Chief Justice’ 85 CLR vii, viii.

37 Anthony Mason, ‘Barwick Court’ in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 59.

38 David Bennett, ‘Argument before the Court’ in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 32.

39 David Bennett, ‘Argument before the Court’ in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 32.

40Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 12.

41 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 12.

42 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 12.

43 Former Chief Justice Anthony Mason made ‘no secret of my view that the delivery of a written case, like the Privy Council case, before the hearing would enable the judge to see the issues in sharper focus, to consider the arguments before oral presentation and derive greater benefit from it’. But Sir Anthony’s enthusiasm for the written case back in 1984, when Sir Anthony was puisne Justice, represented ‘a minority enthusiasm’. See Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 540.

44 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 12.

45 Anthony Mason, ‘Counsel, role of’ in Tony Blackshield et al (eds), Oxford Companion to the High Court of Australia (2002) 167.

46 High Court of Australia, Annual Report 2004-2005, 7; Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 13-4; Kenneth Hayne, ‘Written Advocacy’, paper delivered as part of the continuing legal education program of the Victorian Bar, 5 and 26 March2007, 1.

47 Kenneth Hayne, ‘Written Advocacy’, paper delivered as part of the continuing legal education program of the Victorian Bar, 5 and 26 March2007, 1; DF Jackson, ‘Appellate Advocacy’ (1992) 8 Australian Bar Review 245, 252.

48 Justice Ronald Sackville, ‘Appellate Advocacy’ (1997) 15 Australian Bar Review 99, 103.

49 Kenneth Hayne, ‘High Court Rules 2004’, introductory remarks at seminars for the legal profession, October-November 2004.

50 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 15.

51 Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 541.

52 Anthony Mason, above, 540; see also Kenneth Hayne, ‘High Court Rules 2004′, introductory remarks at seminars for the legal profession, October-November 2004 (‘I suspect that legal practitioners may have to give closer attention to the development of the skills necessary for presenting written argument than they may have in the past’).

53 Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 541.

54 Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 541.

55 Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 541.

56 Anthony Mason, ‘Present Standard of Advocacy in the High Court of Australia’ (1984) 58 Australian Law Journal 537, 541.

57 Introduction to Andrew H Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’ (2002) 22 Australian Bar Review 149.

58 Kenneth Hayne, ‘High Court Rules 2004′, introductory remarks at seminars for the legal profession, October-November 2004 (‘In this respect, Australian lawyers may benefit from considering the best American practice’). See also Kenneth Hayne, ‘Advocacy in the High Court of Australia’, address to the WA Bar Association, 25 October 2004; Andrew H Baida, ‘Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy’ (2002) 22 Australian Bar Review 149 (High Court Justice Michael McHugh commended the American guide to the editors of the Australian Bar Review).

59 Judge Charles E Clark, ‘Foreword’ in Mario Pittoni, Brief Writing and Argumentation (3 ed, 1967) viii.

60 Gary L Sasso, ‘Anatomy of the Written Argument’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 208, 208.

61 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 483.

62 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 522.

63 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 522-523.

64 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 523.

65 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 523.

66 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 523.

67 R Kirkland Cozine, ‘The Emergence of Written Appellate Briefs in the Nineteenth-Century United States‘ (1994) 38(4) The American Journal of Legal History 482, 494.

68 Michael Kirby, ‘Appellate Advocacy-New Challenges’, The Dame Ann Ebsworth Memorial Lecture, London, Tuesday, 21 February 2006, 11. See also Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 374, 376.

69 Linda K Neuman, ‘Oral Advocacy: In Step with the Times?’ (1989) 34 South Dakota Law Review 236, 239.

70 Dennis Owens, ‘Appellate Brief Writing in the Eighth Circuit’ (2001) 57(2) Journal of the Missouri Bar 75, 75.

71 Dennis Owens, ‘Appellate Brief Writing in the Eighth Circuit’ (2001) 57(2) Journal of the Missouri Bar 75, 75.

72 Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 375, 377.

73 See, for example, Maureen F Fitzgerald, ‘What’s Wrong with Legal Research and Writing? Problems and Solutions’ (1996) 88 Law Library Journal 247, 247 fn 1 (noting ‘innumerable articles have been written about the inability of lawyers to research and write’), 255 fn 24; JH Landman ‘The Problem Method of Studying Law’ (1953) 5 Journal of Legal Education 500, 506; Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 374, 374-5, 378 fn 11, 379 fn 12 (noting ‘increasing concern by the bench, bar, and law schools toward the quality of trial and appellate advocacy’ (374) and ‘the level of written advocacy leaves a lot to be desired’ (379).

74 Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 374, 379.

75 Matthew J Arnold, ‘The Lack of Basic Writing Skills and its Impact on the Legal Profession’ (1995) 24 Capital University Law Review 227, 234, 249.

76 See, for example, Clifford Wallace, ‘Wanted: Advocates Who Can Argue in Writing’ (1979) 67 Kentucky Law Journal 374, 375 (‘neither current law school curricula nor postgraduate programs offer the student or the practitioner adequate opportunities to develop skilled written advocacy’ (375)); Mario Pittoni, Brief Writing and Argumentation (3 ed, 1967) iii (noting law schools’ ‘failure to give greater attention to training in advocacy’); Robert J Martineau, ‘Appellate Litigation: Its Place in the Law School Curriculum’ (1979) 39 Journal of Legal Education 71, 79.

77 Helene S Shapo, ‘The Frontiers of Legal Writing: Challenges for Teaching Research’ (1986) 78 Law Library Journal 719, 722; Matthew J Arnold, ‘The Lack of Basic Writing Skills and its Impact on the Legal Profession’ (1995) 24 Capital University Law Review 227, 252; Tom Goldstein and Jethro K Lieberman, The Lawyer’s Guide to Writing Well (2002) 7.

78 Nancy Winkelman, ‘Just a Brief Writer?’ (2002-2003) 29 Litigation 50; Matthew J Arnold, ‘The Lack of Basic Writing Skills and its Impact on the Legal Profession’ (1995) 24 Capital University Law Review 227, 235.

79 JH Landman ‘The Problem Method of Studying Law’ (1953) 5 Journal of Legal Education 500, 506 (noting the case method ‘shackled’ the law student ‘to truncated cases’. ‘Consequently, young law graduates are neither adequate legal scholars nor practitioners’); Maureen F Fitzgerald, ‘What’s Wrong with Legal Research and Writing? Problems and Solutions’ (1996) 88 Law Library Journal 247, 256 (‘since the majority of substantive law courses are taught with the case method, learning these skills is slow and often hard for first-year students to grasp’); James Eager, ‘The Right Tool for the Job: The Effective Use of Pedagogical Methods in Legal Education’ (1996-97) 32 Gonzaga Law Review 389, 398-400; Robert J Martineau, ‘Appellate Litigation: Its Place in the Law School Curriculum’ (1989) 39 Journal of Legal Education 71, 72-3; Harry McVea and Peter Cumper, Learning Exam Skills (1996, 2002 reprint) 30.