Hi everyone! This is the Written Advocacy Series. The last time we learnt how to structure each and every argument you make in a memorandum. However, persuading is not only about the sequence. To really make a point, remember to:
1. KISS the written submission
KISS stands for ‘Keep It Simple, Stupid’. While solving a moot court case you will likely face complex issues. They will force you to create nuanced justifications for you positions based on more than a single provision or fact. But the bottom line is, no misunderstood argument can persuade. No matter how smart the solution you came up with is, if you fail to convey it the written submission will not achieve its goal. The easiest way to lower this risk is to keep things simple and east to digest for the reader. Pay special attention to:
a) Language – avoid Latin and non-English expression (even if some of them are commonly used in your jurisdiction). Skip idiomatic expressions and proverbs (they are usually known only to native speakers). Replace jargon, archaisms and sophisticated words with their more well-known synonyms (it is embarrassing for readers when they have to read a memorandum with a dictionary next to them).
b) Grammar – avoid complex conditionals and tenses. Get rid of passive voice whenever possible. If you can express something in plain English, do it.
c) Syntax – avoid sentences that are too long and complex. If an entire paragraph is grammatically a single phrase, then it cannot be easy to understand. Build affirmative, not negative sentences whenever possible. Make sure that phrases you draft are not ambiguous and that each part and word refers to what you intended.
2. Make it clear
The ‘KISS’ rule is aimed at achieving an important goal: clarity. Your written submission should not anything that blurs the picture no matter how eloquent or sophisticated it might be. Clarity is achieved when your readers think only about merits of your argument and not the argument itself. If you need to read a part of a written submission twice before you understand it, then it is not clear enough. While reading, if you cannot recall what was two sentences ago, then it is not clear enough.
An oft-cited and very effective way to check if your written submission is clear it to give it to a non-lawyer unfamiliar with the case. When your grandmother, flatmate from a technical university or friend from yoga classes is able to read through the submission and afterwards explain what was the problem and your solution to it, then you have done your job. If these people can get it, arbitrators can as well.
To achieve greater clarity, you should also take into account:
a) Redundancy – eliminate everything that is not essential to substantiate you position. Superfluous arguments and facts cover and weaken these that are crucial. Once something is established, there is no need to ‘overkill’ the issue by providing ten more minor points in favour of it.
b) Quoting – skip length quotes from the problem, cases or authorities. They distract the reader and usually bring little value. Carefully select the sentences that are relevant.
c) Give examples and draw analogies – when dealing with a particularly complex issue, it is useful to draw an analogy or think of a real-life situation that could make an abstract concept more tangible. I would not recommend elaborate metaphors (they can backfire or be misunderstood). Just find a simpler scenario and explain why it reflects well the problem you are trying to explain.
3. Appeal to equity and justice when you can
Solving a dispute is not only about legal technicalities and compliance with requirements. As human being, we all have deeply ingrained ideas of justice, fairness and equity. Being truly persuasive in your argument requires going beyond mere analysis of law and facts. You will achieve more if you demonstrate that deciding in your favour will be in line with arbitrators’ and society’s sense of what is just and fair (or at least that siding with your opponent will be inequitable). To make such arguments, look broadly at the case: maybe the parties differ significantly and the problem is about the big one trying to crash the small one? Maybe there are some truly important public interests at stake that should not be overlooked? Maybe a seemingly insignificant request turns out to be a pebble that can send ripples all over the system and bring instability or damage? Maybe the other party acted inconsistently or tires to benefit from its own wrongdoing? Of course, these arguments cannot replace compelling and fact-based legal analysis of the case. Nevertheless, they are a powerful device you should use.
I hope from now on you will be able to include all these dos in your written submission. A good memorandum is not only about doing things right, though – it is also about not doing things wrong. That’s why in the next episode in the series we will look at the don’ts. Stay tuned!