Ben Katekar interviews David Jackson QC about the essence of appellate advocacy.
15 January 2016 marked the 40th anniversary of David Jackson QC's taking silk. He had been called to the Bar on 16 December 1964.
He has appeared on hundreds of occasions in the High Court of Australia in constitutional litigation, appeals and special leaves.
To see David in action, most striking to me is his clarity. To meet him, most striking is his humility and normalcy.
David kindly gave me an interview for advocacyhub.com.au. David has written and spoken extensively on appellate advocacy, including “Practice in the High Court of Australia", (1997) 15 Australian Bar Review 187 and "Appellate Advocacy", (1992) 8 Australian Bar Review 245. The elaborate detail of those articles is beyond the scope of this note.
I seek to identify the pith of his approach as an appellate advocate.
In his "Appellate Advocacy" article, David says that, when beginning your oral address, you should be able to stand up and say something like this:
This appeal turns on the resolution of two issues, one a question of law, the other a question of fact.
The question of law is …
The question of fact is …
This manner of opening was became his “trade mark”. Many barristers now mimic it. And it applies also, of course, to written submissions.
The simplicity of the structure of the argument revealed in such a neatly-crafted opening masks the challenge of its creation. Like the first few sentences of a thesis or a novel, such an opening is moulded and crafted throughout, and is often only finalised and finessed at the very last.
David’s creative process is governed by a laser-sharp and ruthless instinct.
According to him, the goal of the appellate advocate is to lay the foundation for the court to arrive at a judgment that achieves the outcome you seek.
David’s approach to building this foundation – and executing it succinctly – can be summarised in a 5 step formula, that I offer below.
Please note, though, that this “formula” was not authored by David, but is instead something that I produced from having spoken to him and read some of his articles. In so offering it, I do not seek to oversimplify this rather complex topic, or arrogate any personal expertise about it. It is merely something that may help aspiring appellate advocates (such as myself) to improve and better understand the craft.
STEP 1: LOCATE THE CRITICAL ERRORS
You must first identify the essential chain of reasoning adopted by the judge below in reaching his or her conclusion. You need to find a link in that chain you can break, that once broken may result in the reversal of the outcome.
Of course, if the trial judge has reached a conclusion through more than one route, and the error is only in the first route, then you need to find error in the alternative route as well.
The link in the chain you choose to attack may be one of fact, law, or a mixture of both. It is necessary to identify the type of error, as that will identify the available bases for attack, and the tests that the appeal court will apply in determining whether error is established.
For errors of fact, it is critical to remember that an appeal is not a second trial. The “slate is not clean”. Where the primary judge has made a finding of fact that is against your side, you have two choices: accept it, or attack it. You must choose one.
Assess what kind of fact it is. Is it an ultimate fact, or a finding of fact that is part of a chain of reasoning leading to an ultimate fact? Does the finding of fact depend upon credibility? If so, it is necessary to recognize the higher hurdle that confronts you, and seek to persuade the Court that, on this occasion, you clear it.
If it is an error of principle, different considerations apply depending on what level you are at. This is step 2.
STEP 2: CRAFT YOUR ARGUMENTS APPROPRIATELY TO THE COURT YOU ARE IN
Intermediate appeal Courts are, of course, bound by High Court authority, and should follow the decisions of other intermediate courts unless persuaded that they are clearly wrong. On the other hand the High Court is not restricted on either count – although it tends to be more open to distinguishing previous authority, rather than to reversing it.
If an existing principle was developed many years ago, but its application now seems unjust in light of changing social dynamics, there may be scope to invite the Court to modify it. However, this is likely to be the kind of argument that most often will find traction only in the High Court.
STEP 3: COMPREHENSIVELY CONSIDER ALL THE ARGUMENTS
It is important to think of the implications of both acceptance and rejection of each argument that will be raised. You must expect questions of this kind from the bench.
It is well to remember that appellate courts (particularly the High Court) approach their task from the perspective that the principles pronounced by them have ongoing application in other cases; they are “making law”. Whilst you are seeking to achieve a particular outcome for your client, the court must not only grapple with the case before it, but also consider its significance more generally.
When preparing argument, gather your responses to all of the matters that you can conceive may be raised in argument. Many will have been raised by the opponent’s written submissions, if that point has been reached, but if a particular point has occurred to someone in your team when preparing the case, then it is likely that the same point will occur to one of the members of the bench.
David recounted to me a story of Justice Taylor sitting in the High Court’s Queensland sittings in 1963 or 1964. Justice Taylor had asked a question, which the counsel failed to answer, and instead deflected the debate onto another topic. Justice Taylor repeated the question in exactly the same words. Again it was parried by deflection. After this second occasion, Justice Taylor told the counsel that, since he had not responded to his question on two occasions, he was no longer interested in listening to him. With some theatrics, his Honour closed his appeal book, and turned his back.
It is important to try to answer all questions from the bench. The more you are prepared for all questions, the less likely it is that your argument will take an unexpectedly negative turn. Also, your ability to answer such questions engenders greater judicial confidence in you, and in turn, in your argument.
It also reduces the frequency with which you may encounter the sad reality of the famous statement by Justice Robert H. Jackson, when speaking of his experience as Solicitor-General and addressing the US Supreme Court: he said that he made three arguments in every case: "First came the one that I planned - as I thought, logical, coherent, complete. Second was the one actually presented - interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night."
STEP 4: FRAME THE ISSUES FAVOURABLY
As an appellant, you have an advantage in framing the issues. You can choose the battleground. In any case, there are strong points, and weak ones. So far as possible limit your case to your strongest arguments and jettison the weak. Sometimes this is not possible, but in many cases decisions can be made to dispense with the less-inviting parts of an appeal, so that the hearing can be run using only those parts that are likely to provoke a favourable response.
As a respondent, you don’t always have to be on the back foot; you may be able to raise a notice of contention, or a notice of cross-appeal. However, the same principle applies: only run your good points (if you can). Make sure, however, that you have raised all the issues decided in your favour which stand in the way of success by the appellant.
In developing your submissions, you need to do so in a way that resonates with what judges are likely to think. When approaching a High Court appeal in particular – where you know the small group from whom the bench will be drawn - it is essential to research what the judges have said on the same issue in the past. Where they have gone against you, this should be grappled with in some way (often preferably in the written submissions). A deal of tact; a “lightness of touch”.
It is important to bear in mind that written submissions are as much a part of the advocacy on appeal as oral argument. Sometimes, as in applications for special leave to appeal in the High Court, they may be the only submissions.
It is easy to identify poorly drafted written submissions. They are likely to be drafted in a way that the author is still thinking about the trial, and has lost sight of the fact that the “slate is not clean”. The case is now at a higher level.
Appellate advocacy is, of course, an exercise in persuasion and the aim of submissions, whether written or oral, is to lead the bench towards your desired destination. It helps if the bench arrives at that destination as if it had thought of that path itself. The advocate needs to articulate a chain of reasoning which will elicit a positive reaction, and prompt a desired judicial conclusion.
It is important for the advocate not to overstate the strength of their case or the weakness of the other side’s. Expressions such as that another side’s submission is “obviously wrong” can lead judges to respond “I’m not so sure about that”. It is better to suggest that the argument “should not be accepted”, listing the reasons for that contention.
It is also important to try to identify the point being addressed at any time.
STEP 5: APPLY THE BASIC FRAMEWORK
Once the first four steps have been taken, the submissions may be crafted with careful attention to the core framework of any appellate argument:
(a) identify the error;
(b) apply the error to the reasoning process; and
(c) display how fixing the error would lead to a different result, such that the ultimate conclusion reached is wrong.
It is remarkable how often counsel lose sight of (c), which reflects the essential nature of the appeal process.
Constructing and conducting your argument by close attention to these basic elements will help to maintain the engagement of the court. At each point, the court is aware of where you are in your argument, why you are there, and where you are going. The bench will be more inclined to hold back on asking their questions until you arrive at the pertinent point in the structure; because you have mapped it out, they know that the right time for their question will duly arrive.
This gives you more chance to run your argument fully before the court. This, in turn, improves your prospects of getting the court to pay its full attention to your case. It also means that you are put under less pressure during your oral address, which then feeds into your confidence and poise. Your self-confidence impacts on how the judges respond to you, including how they might perceive the underlying merit in your argument.
Once you have built your argument around your best points (and heartlessly disposed of the bad ones), staying within the basic framework, taken the full opportunity of explaining the intricacies of your argument to the judges, and gently laid the foundation for them to arrive - as if by themselves - at the outcome you seek, you have gone some way to maximizing your client’s chances of victory.
There is a story of two Queensland Supreme Court Judges visiting England late last century, where they attended a lecture by Lord Diplock. At the end, Lord Diplock was asked “What quality do you value most in an advocate?” One of the Judges turned to the other and whispered: “brevity.” Almost simultaneously, Lord Diplock gave his answer to the assembly: “brevity”.
David Jackson QC’s approach to appellate advocacy produces a delivery that seems so simple. The disarming simplicity of what he says belies the industry, wit and experience in its preparation. The beauty in his craft is that David is always clear, engaging, and to the point.
 Quoted by Justice Hayne in his paper on “Written Advocacy” delivered to the Victorian Bar in March 2007, at http://www.hcourt.gov.au/assets/publications/speeches/current-justices/haynej/haynej_05mar07.pdf
 As told by David’s namesake, now Justice D.J.S. Jackson of the Queensland Supreme Court, to the Queensland Bar in 2008.