Written by former Commonwealth Solicitor-General David Bennett, this article descibes some of the history and practice of arguing a case before the High Court of Australia (Australia's highest court). Several important changes to High Court practice have been made since the article was published in 2001, so you should check the Court's current rules. Even so, the article provides a fascinating look at the history of argument before the Court and makes useful contrasts with the practice of other courts, notably the Supreme Court of the United States.
The article comes from The Oxford Companion to the High Court of Australia. Thanks to David Bennett, the General Editors of the Companion, and Oxford University Press for permission to reproduce this article. The Companion is available online through Oxford Reference Online. Read Argument Before the High Court >
In this excellent article from the University of Toledo Law Review, Sarah E Ricks and Jane L Istvan explain recurring brief-writing errors and misconceptions, which can assist lawyers to assess the effectiveness of a brief from the judge's perspective. This article can help lawyers to avoid 10 of the most common ways to write a bad brief. Reproduced with permission. Read Effective Brief Writing >
In Step 9 of our Toolkit, we provide a workbench of techniques that lawyers use when confronted with an unfavorable precedent. Do you ask the court to overrule it? Do you argue that the relevant part of the precedent case was merely obiter dicta? Do you try to confine the precedent strictly to its exact facts? Do you challenge the precedent's form (for example, is the precedent value of a case weakened if it is delivered ex tempore)? Reading this encyclopedic entry by Emeritus Professor Tony Blackshield from the Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007) may spark some further ideas on how lawyers (and judges) may file a precedent to "razor thinness" or expand it "into a bludgeon" (Karl Lewellyn, The Bramble Bush (1930)). Read Precedent >
In this article, Emeritus Professor Tony Blackshield writes about the way judges decide cases. The article comes from the Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007). Many of the ideas in the article will sound familiar to readers of our Toolkit. In particular—
- the way that the legal analysis phase and the legal writing phase of legal problem-solving interrelate (see:
- "the task of reducing one’s thinking to writing is itself an aid to thinking, and sometimes a decisive aid".
- the interdependence of ascertaining the relevant facts and the relevant areas of law:
- "The first rough apprehension of the fact situation will already trigger tentative intuitions of the area of law that might be relevant—prompting scrupulous attention to some aspects of the facts, and dismissal of others as irrelevant. But as a fuller picture unfolds, those initial impressions may change. Different configurations of the facts may suggest different legal issues, in turn suggesting different perceptions of what are the relevant facts."
- the strength of "cable-like" arguments compared to the more common "chain" analogy:
- "John Wisdom, in 1944, found ‘not a chain of demonstrative reasoning’, but ‘a presenting and representing of those features of the case which severally co-operate in favour of the conclusion … The reasons are like the legs of a chair, not the links of a chain.’ Chaim Perelman, in 1958, compared a persuasive argument to ‘a piece of cloth’, with a total strength ‘vastly superior to that of any single thread which enters into its warp and woof’."
Thanks to Tony Blackshield, the General Editors of the Companion, and Oxford University Press for permission to reproduce this article. The Companion is available online through Oxford Reference Online. Read Judicial Reasoning >