A final written address is the last thing the court reads before it decides, and it is very often the first thing a tired practitioner writes badly. The temptation, after a long trial, is to narrate: to walk the court back through the evidence in the order it was given, witness by witness, and hope the conclusion suggests itself. It rarely does.
An address that works is not a summary of the case. It is an argument about which questions decide the case, and why the record answers them in your favour. Everything else is furniture.
Before opening the record, write down the questions the court must answer in order to give judgment. Not the complaints, not the grievances, not the list of things the other side did badly — the questions. Most matters have two or three. A matter with nine issues for determination usually has three real ones and six that are arguments about those three wearing different clothes.
This is uncomfortable, because the issues you can prove are not always the issues you feel strongest about. Do it anyway. A court that is handed nine issues will find the weakest one and use it to characterise your case.
Nine issues for determination usually means three real ones and six wearing different clothes.
Now read the pleadings, the witness statements on oath and the record of proceedings — but read them looking for answers to the questions you have already written down. Note the page and line of everything that bears on each one, in both directions. The evidence that hurts you is more important to find early than the evidence that helps, because the evidence that hurts you is what the other side will build its address around, and you want to have answered it before they have raised it.
By the end of this pass you should have, for each issue, a short list of references. If an issue has no references, it is not an issue. Take it out.
Research after the issues are settled, never before. Searching the law reports first produces an address organised around the cases you happened to find, which is a different document from the one the matter needs. Searching after produces authority that is actually on the point.
Read what you cite. A headnote is a summary written by somebody with no interest in your argument, and a decision that has been distinguished or departed from reads identically in a headnote to one that still stands. The moment to discover that an authority has been overruled is at your desk, not when the court mentions it from the bench.
Each issue gets the same shape: the question, the short answer, the evidence that compels it with its references, the authority that supports it, and the honest treatment of what cuts the other way. The treatment of the opposing case belongs inside the argument, not quarantined in a section at the end where it reads like an afterthought.
Keep the paragraphs numbered, keep them short, and let the headings carry the structure so the court can find any issue in a few seconds. A judge reading twenty addresses in a week will notice.
Which is, of course, the one thing nobody has time to do — and the reason this work so often gets written at midnight before a morning filing. If the day is not there, the honest options are an application for extension of time, or somebody else’s desk.
If you would rather hand this part over, that is what we do. Tell us about the matter and we will tell you what it costs.