THE HON JUSTICE MICHAEL KIRBY AC CMG*
About 35 years ago, I prepared a book that looked a little like this one. I had just been appointed to my first judicial post as a Deputy President of the Australian Conciliation and Arbitration Commission. Although I had a substantial practice before that body and other industrial tribunals, there was an awful lot of law, and ‘lore’, about which I was unfamiliar. Naturally, I did not want to reveal my ignorance, once I was sitting on the Bench deciding urgent cases involving the nooks and crannies of federal industrial practice.
Between my appointment and my first case, I worked like fury compiling a kind of index containing brief summaries and cross-references on every conceivable subject that might come before me during a hearing. It was an intensely practical work. It was arranged conceptually and alphabetically. My object was to have beside me an instant guide offering a solution to every problem that would arise for decision.
A couple of months later, I was seconded to chair the newly established Australian Law Reform Commission.1 Although my compilation had proved useful in the tiny number of industrial cases in which I had sat before taking up my post in law reform, the index was soon set aside as I turned my attention to the different, and equally challenging, problems of law reform. As chance would have it, I never returned to work in the Conciliation and Arbitration Commission. Nevertheless, I have always retained an affection and respect for the contributions of that body, its predecessors and successors, for establishing a ‘fair go’ in Australia’s industrial law and employment standards.2
Always reluctant to see a useful product going to waste, I offered my handiwork, without fee, for publication. Eventually CCH Australia Limited published it as the Industrial Index of Australian Labour Law.3 Because of its practical utility and ready reference system a generation or so of industrial law practitioners used it to find their way around the mysteries of industrial relations law and practice. Recent changes in that law may have destroyed its usefulness completely.4 But perhaps it will live to see a revival. However that may be, I was reminded of my youthful endeavour when I read of the way in which Troy Simpson conceived the idea of Win More Cases.
This book too began as an in-house project to guide Troy Simpson’s staff and clients in the ways of maximising effective presentations before Australian courts and tribunals. The utility of the in-house guide was soon seen as something that might be useful, and marketable, for others. I applaud the willingness of the author to share his ideas with a wider audience. Progress in the law, and in other disciplines, depends on sharing the good ideas of master spirits.
In a time of rapid technological and social change, the past can be only an imperfect guide to us in tackling the present and anticipating the future. There is a lot of practical wisdom in Win More Cases. Each reader will read it with different experiences, different needs, different problems, and distinct expectations. I do not doubt that many will obtain a lot of use from this work—just as my own earlier endeavour gave its users the digested benefit of my industry and cogitation in the specialised field to which I thought my professional life would be devoted.
Of course, it is vital to appreciate that change is the constant companion of a life in the law today. When I began as an articled clerk in the 1950s, the Australian legal professional was small in numbers, strictly divided between different jurisdictions, protected by many monopoly arrangements, intellectually hostage to the judges of England, and still committed to jury trial of most causes and the unbroken oral tradition of the common law. Winning more cases in that context demanded skills different from those that are at a premium today. Now, an Australian lawyer is likely to think in national terms; to work with statute rather than common law; to practise in a national or international legal firm or private corporation; to avoid courts wherever possible by using alternative dispute resolution; and to be skilled in written work with only occasional visits to the orality of the courts. The big shifts in the way law is practised gives emphasis to written persuasion. This is a natural development for, on average, we can read four times more quickly than we can communicate orally.
Where endeavours to resolve disputes without any oral hearing (still less before a jury) have failed, written persuasion is now an essential ingredient of success. The skills in providing accurate, incisive, interesting, and readable arguments require special talents of the modern lawyer. The High Court of Australia5 can only get through its burgeoning list of applications for special leave to appeal by sifting out the cases deemed suitable for a 20 minute oral submission, based on the written arguments. It is now written persuasion, rather than flights of advocacy before entranced jurors and impressionable articled clerks, that tends to win cases and persuade over-worked decision-makers. This is not to say that a skilful deployment of verbal gems will be wasted in the current age. A felicitous phrase, an historical allusion, a touch of irony, or a brilliant digest of impressive detail will win the eternal gratitude of the judge, magistrate, or arbitrator, forever battling against the oncoming tide of papers and hearings.
There are differences too between legal practice in different national jurisdictions. To win more cases it is essential for the lawyer to become familiar with local demands and expectations. For example, Australian courts are much less willing to permit interveners and to use the submissions of amici curiae6 than courts and tribunals in the United States of America. Oral argument is even more sternly rationed in that country than it now is in Australia. Yet recent trends indicate a broad convergence of professional methodologies.7
One of the most useful parts of this work is the section containing advice on techniques of argument before higher courts and on the use of plain language and good style in drafting documents and expressing written arguments. This is a subject that is much examined in the United States, taught at law schools, and written about by knowledgeable authors.8 In some quarters there is a disdain for the ‘plain language’ movement. This is sheer snobbery. By adopting a few simple rules (like the frequent use of full stops and avoidance of the passive voice), we can all learn to write more clearly and engagingly.
In multi-member courts and tribunals, lawyers face the problem of persuading a body whose members may have diametrically opposed interests and legal values. For example, the use of international human rights law in resolving difficult contests is as controversial in Australia9 as it has proved in the United States.10 Upon such issues, the lawyer and the researcher must proffer a submission that will engage one judge without raising undue hostility on the part of the others. It is a big ask. It demands subtlety, imagination, and courage.
Such are the talents that Troy Simpson displayed when he worked as principal researcher for the Oxford Companion to the High Court of Australia.11 That publication was a triumph of accuracy, taxonomy, and readability, to which he contributed greatly. I do not doubt that Win More Cases will earn him more admirers and that he will be constantly updating the work as legal practice changes, expectations alter, and empirical research improves.
Even if unique genetic gifts play a great part in the reasons why some lawyers enjoy greater success than others, there is no doubt that all of us can be helped to express ourselves more simply and effectively. That is the basic object of this work. For every lawyer who wins a case there should be a grateful client. For every lawyer who deserves to win, the cause of justice and the rule of law will be advanced. And that will almost always be for the betterment of society and the world.
High Court of Australia
18 March 2008
* Justice of the High Court of Australia (www.hcourt.gov.au).
2 Michael Kirby, 'Industrial Conciliation and Arbitration in Australia: A Centenary Reflection' (2004) 78 Australian Law Journal785; see also (2004) 17 Australian Journal of Labour Law229.
3 (2nd ed, 1983).
4 Australian Workers' Union v Commonwealth('Work Choices Case') (2006) 229 CLR 1, 216–220 –.
6 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2007) 81 ALJR 304, 322 –; compare Levy v Victoria (1997) 189 CLR 579.
7 Michael Kirby, 'The Future of Appellate Advocacy' (2006) 27 Australian Bar Review 141.
8 See, for example, Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain Language (2006) reviewed (2006) 80 Australian Law Journal 623.
9 Al-Kateb v Godwin(2004) 219 CLR 562, 589 ; compare 617 .
10 Lawrence v Texas539 US 558, 576, 586 (2003); compare Michael Kirby, 'International Law—The Impact on National Constitutions' (2006) 21 American University International Law Review327, 356.
11 Now available online through Oxford Reference Online (www.oxfordreference.com).