Effective Appellate Advocacy

I attended a talk entitled ‘Effective Appellate Advocacy’ given by Justice Dato’ James Foong, Judge of the Court of Appeal. Some of the useful pointers given:1. Think about where you sit

One of the best seats would be at the 2nd row, at the seat next to the middle aisle. This is the spot where the judges would naturally focus their eyes on, and it is neither too close to the panel of judges nor too far away.

2. Use the microphone

The microphones automatically switch on once the Court is in session, so Counsel are advised to project their voices towards the microphone in front of them. It was recognised however that the microphone are positioned too low, so Counsel are forced to hunch or bend over to get closer to the microphones.

“…bring out your big guns, rather than your small arms…”

3. Importance of written submissions

It is common practice for the Court to direct parties to file in written submissions one month before the hearing of the appeal. Appellate judges do read those submissions. When reading the appeal file prior to the hearing, the judges would normally first read the Registrar’s letter setting out the brief nature of the appeal, then the Grounds of Judgment from the High Court, if available, then finally the Written Submissions.

Judges may read the Appeal Record, rarely cover to cover, and maybe only to check on certain facts.

4. Preparation of written submissions

When drafting the written submissions, make sure to disclose all the facts and the issues on apeal. When stating your proposition, support it using facts and case law.

Judges find it very useful for Counsel, when citing case law, to include a brief description of the principle of law expounded in that case. You may highlight a short passage or relevant sentences. Don’t leave cases hanging, only with the reference to the law journal citation.

5. When making your oral submissions…

First check whether the panel is aware of facts. Announce that you will be reading out the facts from the written submissions, and then continue unless interrupted by the panel.

From the outset, tackle the main issue/issues. In the words of Justice James Foong, “bring out your big guns, rather than your small arms.”

A comment was made on how some Counsel, from the start, will announce that they will merely focus on one issue. Such a move is usually appreciated from the appellate judges.

Allow me to digress a bit at this point. I have always found it difficult to confine myself to merely one or two points. We tend to be meticulous in our preparation, wishing to list down every single point in a hearing. Recently, in a case where I was presented with a multitude of defences which I could rely on, I forced myself to merely focus on 2 or 3 points, and abandoning the others. But it was still so tempting to list out all the defences and to elaborate on each and every one.

This reminds me of a passage from NH Chan’s Judging the Judges. He quoted from an article Cases in Court: “The ability to pick out the one real point of a case is not by itself enough; it is the courage required to seize upon that point to the exclusion of all others that is of real importance.”

Another quote from a different article stated: “You must consider all the many points that could be made. But remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.”

6. Body language

Another useful pointer was that inevitably, Counsel will be questioned by one of the panel judges. When answering the question, while maintaining eye contact with that judge, ensure that you also give attention to the other panel judges.

7. Role of the Chairperson of the panel

Justice James Foong further explained that the role of the chairperson was to be responsible for the conduct of the proceedings. It is usual for the chairperson to ask most of the questions, with the other panel judges maybe asking a few questions here and there.

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