When less is more… a lesson in how not to conduct litigation.

The idea in brief:

Good legal argument is like any other persuasive form of rhetoric, to be persuasive it needs to comply with some basic time honoured rules:

1. It must be logical – make sense, be well structured and the various components of the argument congruent with one another
2. It must be credible – be realistic based on human experience and balanced (not fanciful or exaggerated)
3. It must be articulated in a manner that is empathetic of the decision-maker
4. It should be as concise as the situation will allow, without labouring untenable points
5. It should be presented in a way that accords with the psychological principles of primacy and recency: by putting the best argument first and finishing on a high/recapping the best points
6. It should be delivered in clear, plain English and adopt where possible the art of storytelling and metaphors to convey meaning

Good legal argument is not: scatter-gunning every possible argument available, delivered in an unstructured way, confusing in its complexity or adopting unnecessary legalese to sound intelligent.

The idea in detail:

For about 2,000 years (since the work of Aristotle) it has been understood that for an argument to be persuasive, it needs to contain each of the following attributes:

1. Logic (or logos):
2. Credibility (or ethos)
3. Empathy (or pathos)

To increase persuasiveness, the argument should also conform with the psychological doctrines of ‘primacy’ and ‘recency’.

The doctrine of primacy means: you should put your best argument first.

The doctrine of recency means: you should finish on a strong point.

The principles of primacy and recency are rooted in psychological research about how the human mind interprets and reacts to an argument.

In the case of primacy: the first piece of information presented is paid the most attention, serving as an ‘anchor’ in the mind of the decision maker, against which subsequent information is processed.

In the case of recency: the last thing heard is often recalled more easily than the content in the middle.

A failure to follow the above principles results in an argument that is scrambled, prolix, difficult to follow and lacking in persuasive impact.

Litigation, although the subject of special rules and formalities such as pleadings, rules of evidence and court procedure, is quintessentially persuasive argument before a decision maker (the judge). Accordingly, excellent legal representation before courts, must deliver both mastery of the law and mastery of the art of persuasive argument.

Excellent legal representation does not involve coming up with and running every conceivable argument in the client’s favour. Often, it involves the opposite. It involves making experienced judgement calls about how to best present the case to maximise the prospect of success and likelihood of a judge finding in your favour. This involves tactical and strategic decisions about how the argument is to be delivered and decisions not to run tenuous points that are unlikely to succeed and will only cloud the good points, diminishing the overall persuasive impact.

It involves structuring the argument in a logical way, reducing the argument to bite size chunks capable of rapid absorption and comprehension by the decision maker, simplifying complexity in the law and delivering advocacy and written argument in a way that makes the judge’s task of finding in your favour and publishing findings, easy.

Brevity is also key.

An exceptional advocate can condense complicated legal argument to 4-5 key points (or chunks of information) and often reduce written submissions to around 4-10 pages. This is very powerful provided that careful thinking has gone into the issues in dispute and the submission responds to those issues elegantly and succinctly (but fulsomely). The power of brevity is also supported by science, ‘Miller’s law’ refers to research which found that the average maximum chunks of information a human mind can hold in processing memory at any one time is 7 items (+/- 2).

What is certain is that prolixity in legal debate is never powerful.

A bad example

A recent case involving major contractor John Holland and Adani Abbot Point Terminal Pty Ltd is an excellent example of what not to do when making a court application seeking to persuade the court to find in your favour: John Holland Pty Ltd v Adani Abbot Point Terminal Pty Ltd [2016] QSC 292; John Holland Pty Ltd v Adani Abbot Point Terminal Pty Ltd (No 2) [2018] QSC 048.

The case involved an appeal from an arbitrator’s determination of a dispute about upgrade works John Holland had performed at the Abbot Point Coal Terminal.

John Holland’s approach to the appeal suffered from a number of problems which ran contrary to the above principles of good argument.

First, the appeal document submitted by John Holland did not guide the court as to what the alleged errors of law in the arbitrator’s decision were, that were actually being appealed. This was criticised by the court in the judgement that followed. The effect of this was to require the judge to have to work from the submissions and a draft order eventually handed up by John Holland’s legal representation during the hearing (which went for 2 days) to work out what the alleged errors of law being argued for were.

Second, John Holland raised not less than 11 grounds of appeal, some of which contained internal alternative arguments and dealt with more than one piece of subject matter at a time and expansionary argument. For example, ground 11 referred the judge off to a schedule of a further 50 paragraphs of specific findings that were made by the arbitrator and said to be wrongly determined, and then off to another schedule containing a further 50 separate submissions. Hardly succinct or simple to follow.

Third, the legal representation for John Holland tendered more than 2,000 pages of affidavit evidence in support of its arguments as well as a lever arch folder full of communications with the expectation the judge would wade through them in arriving at his decision.

Fourth, the written submissions delivered in support of the application (used to explain John Holland’s argument) were 35 pages long, and contained an annexure of a further 97 pages in length. John Holland’s written submissions in reply to the Abbot Point’s submissions were yet another 35 pages long. Certainly not brief.

Essentially, the judge was left with a mess of an argument to work through and make sense of. He termed it ‘a snow storm of material and points relied upon by [John Holland]’ and was, unsurprisingly, scathing in his judgement dismissing the appeal, saying the following:

“The number and width of the suggested grounds of the proposed appeal are unusual. The volume of permutations and combinations of supposed questions of law is unmanageable. The application so framed is tantamount to an abuse of process.”

When it came time to award costs of the failed appeal, the court ordered John Holland pay the other parties’ legal costs on an indemnity basis because the manner in which the appeal was argued amounted to an abuse of process by opression:

“there was oppression in the material filed in support of and in the conduct of the application for leave to appeal… my evaluative judgment overall is that an order should be made that the costs be assessed on the indemnity basis.”

Such an award is extraordinary.

It means John Holland is required to pay what will probably amount to all or close to all of Adani Abbot Point Terminal Pty Ltd’s legal costs of responding to the appeal application. Usually only a standard costs award follows an unsuccessful application which sees about half or less than half of the winning party’s costs paid by the losing party.

Adopting the above attributes of persuasive argument, why did John Holland’s argument end up such a monumental failure?

1. The argument lacked logic (logos), because it was poorly structured

A good argument is structured tightly and succinctly, often in the format of a proposition or conclusion, followed by supporting deductive or inductive reasoning with supporting evidence.

John Holland’s application document itself did not frame the questions of law John Holland was alleging the arbitrator got wrong, and then when John Holland’s legal representative finally did distil the argument to 11 grounds of appeal, not each ground was constrained to one subject matter and the judge complained some contained internal ‘alternatives’ as well as references to yet further argument in separate schedules. The argument lacked concise, logical structure, making the task of comprehending the argument difficult.

2. The argument lacked ‘credibility (or ethos)’

Many of the grounds of appeal were eventually shown to lack credibility, as they were challenges made about findings of fact made by the arbitrator, not errors of law. An appeal from the arbitrator’s decision was only possible on errors of law.

Whilst the judge was careful to point out that he did not conclude the appeal was made unmeritoriously, the overall persuasive impact of the argument surely suffered from the fact that much of the voluminous content and grounds of appeal was directed at challenges to findings of fact, not errors of law. If any gem of an argument was buried in the material presented to the court it must have been clouded by the many untenable points made. It is difficult to get leverage out of a good point when it is surrounded by bad argument.

3. The argument spectacularly lacked empathy (or pathos) for the decision maker

There are a few indicia also that suggest a lack of empathy (pathos) for the decision maker:

1. that the judge was required to labour through 2 days of oral hearing in court (very long for an application) because of the length of the applicant’s submissions
2. that the judge then had to apply “many more days to absorb and deal with the arguments as presented” in his own time
3. that the judge was presented with as much the 2,000 pages of evidence and 97 pages or written submissions
4. that the judge was given 11 grounds of appeal, some of which contained internal alternative arguments and dealt with more than one piece of subject matter at a time as well as expansionary argument referred off to schedules containing 50 more paragraphs of information, to try to dechiper

The lack of empathy (pathos) for the decision maker was so stark that the judge made his comments in his judgment about the ‘a snow storm of material and points relied upon by [John Holland]’ and set aside an entire section in his judgment to criticise how the case was put by John Holland. It also did not escape the judge’s criticism when making the costs decision:

“the applicant does not explain the 2,000 plus pages of affidavit material it read on the application, as justified for the hearing of the leave to appeal application, or why it was justified in presenting oral argument into a second day to identify and make submissions as to the questions of law on which leave should be given.”

It is unsurprising, when analysed through the above framework, why the argument lacked persuasive impact.

A good example

I can recall many years ago working with a senior Queens Counsel, who unsurprisingly went on to be appointed a judge. We ended up working together on many matters before his appointment.

This was a contested strike out application (where my client was seeking to have a claim made against it struck out because it lacked legal sense).

I arrived at his chambers to catch him finalising his preparation. His written submissions were reduced to only a handful of pages and he was busy instructing junior counsel and his secretary to compile a separate folder with coloured and numbered tabs and, behind each tab, he wanted very specific parts of the evidence.

When we arrived at court, after taking appearances, the judge asked our QC what the application was about.

He succinctly and eloquently described that there were really only 2 issues in the statement of claim filed by the respondent, one was a conventional subcontractors’ charges claim, the other was a ‘novel’ claim involving what is alleged to be a constructive trust or some unjust enrichment type claim which we say makes no sense as pleaded.

He explained that the application before the court required the judge to determine 3 things that morning:

1. whether some parts of the subcontractors charges pleading were bad and should be struck out for reasons that would be explained in our submissions
2. whether the entire novel claim should be struck out because it was bad and did not plead a proper claim according to the rules of pleading or plead a legitimate a cause of action known to the law
3. if the judge was minded to strike out the pleadings as requested, we would be seeking to persuade the judge that this is an extraordinary matter which warrants the exercise of the indemnity costs jurisdiction because of how the respondent had conducted itself in the lead up to the hearing today, which we will elaborate on in submissions

He then explained to the judge that he had some short written submissions to hand up that he thought would sufficiently apprise the judge of the issues in dispute and the legal reasoning, and after the judge had read them, he expected to take just 15 mins on his feet in oral submissions.

The judge was appreciative of the succinct overview. He then heard from the respondent before breaking to read the written submissions from both sides and calling on our counsel for his oral submissions.

Our counsel began his submissions by handing up the folder I mentioned was being prepared when I joined him in chambers. He had given his opposing counsel a copy at the commencement of the hearing.

In that folder contained parts of the same evidence that was already on the court file but which had been tabbed and ordered to perfectly follow his oral submissions and which he then used to take the judge to the precise points of evidence he wanted the judge looking at, at various points of his argument.

As he was explaining the argument, the judge was able to seamlessly follow along with the points of evidence without having to call on his Associate to retrieve various affidavits from the court file as each piece of evidence was referred to and then fumble through those documents to follow along. The oral submissions were delivered succinctly, seamlessly, utilising simple plain, to the point language and interspersed with analogy and metaphors along with requests for the judge to to ‘turn to tab x or y’ as applicable to read certain aspects of the evidence.

His arguments were structured as statements of conclusion, with supporting reasoning succinctly following each statement which were elaborated on in the written submissions. He did not repeat detail the judge had read in the written submissions, instead focusing on the points of emphasis and importance in underpinning the argument. He rounded out the submissions at the end with a recap on the high points and why the judge should exercise his discretion to find in our client’s favour.

It was an excellent display of logos: logical structure – with brevity, ethos: credibility – we ran only the most critical points we thought were compelling and most persuasive and pathos: decision maker empathy – he made the judge’s job in absorbing and following the argument tied to the evidence easy. He achieved this by delivering what he would want to receive from an advocate, if he was a judge. He ‘connected’ with the judge in what was a joint exercise of navigating through argument and the law.

The result was a decision in our client’s favour, an order the respondent pay our client’s costs on an indemnity basis and because the material was so well put together and the argument so well understood, the judge delivered a judgement on the spot (ex tempore).

It has always stuck with me since that appearance many years ago as a lesson of what excellent legal representation looks like, and why our clients pay us good money to represent them.

The task of a legal representative in constructing and delivering a legal argument is not to be just legally correct, but to be:

1. legally correct, simple and logical in our arguments;
2. persuasive enough to have the relevant decision maker agree that our argument is the preferred one; and
3. to present the argument in such a way as to make the decision maker’s job easier

You will win more cases than you lose if you follow these principles.