Tips on preparing Written Arguments

A civil case essentially is all about claim of some legal right by one party and the denial of it by the other party, resulting in a judgement by a dispassionate judge functioning as an arbiter or umpire. 

In a criminal case, the prosecution charges the accused guilty of some criminal offence punishable under the penal law and the accused defends the charges, ending up in a judgement of either conviction or acquittal.

What is an argument?

When we think of a system of written arguments it is better for us to have some clarity on what an argument is.

The word "argument" is often used to refer to a heated dispute, a quarrel, or a shouting-match. But the term argument essentially refers to "a set of propositions, or statements, which are designed to convince a reader or listener of a claim, or conclusion, and which include at least one reason (premise) for accepting the conclusion." 

An argument is "a claim or proposition put forward along with reasons or evidence supporting it."  It is "an attempt to support a conclusion by giving reasons for it." 

In short, an argument is a collection of statements. It should have a conclusion the argument attempts to establish. The others in the collection are called the premises, which are supposed to lead to convince that the conclusion is true.

Oral arguments in hearing

Hearing in a court case, in which each party puts forth his arguments, takes place at the last leg of its proceedings.

Normally the plaintiff begins the presentation of his oral arguments in a civil case. However, the defendant has the right to begin the argument if the defendant admits the facts alleged by the plaintiff, and contents that the plaintiff himself is not entitled to any part of the relief which he seeks.

On the day of hearing, the party having the right to begin states his case and produces his evidence in a civil case. The other party states his case and produces his evidence in support of his case.

The party beginning the case may then reply generally on the case. The parties can address oral arguments before the court and submit written arguments with the permission of the court.

In criminal case, the prosecution produces evidence to prove the allegation of crime beyond all reasonable doubt. The defendant’s duty is to disprove what the prosecution charges against him and nothing more.

Submitting written arguments

A party to a case can submit written arguments in support of his case to the court before he concludes his oral arguments, if the court permits. The written arguments thus submitted should form part of the records of the case.  

The Order XVIII Rule 2(3A) of the Code of Civil Procedure, 1908 (CPC) recognizes submission of such written arguments. The provision is in force since 2002. The provision says any party can address oral arguments in a case and before he concludes the oral arguments shall submit the written arguments in support of his case to the court, if the court so permits. The written arguments shall form part of the record.  A copy of the written arguments is to be simultaneously furnished to the other party.

The Section 314 of the Code of Criminal Procedure, 1973 (CrPC) also provides for filing written arguments, before concluding one’s oral arguments, to the court in a criminal proceeding. The Section says a party to a proceeding may after the close of his evidence address concise oral arguments. Before concluding his oral arguments he may submit a memorandum to the court which would form part of the record of the court. A copy of the memorandum shall be simultaneously furnished to the opposite party.  No adjournments shall be granted for the purpose of filing the written arguments unless the court considers it necessary and records it in writing.

A broad outline of written arguments

In general the written arguments, like the oral ones, must include the following essential ingredients:

State the facts: you must state the facts of your case, back and forth, based on the record.

State the law: You must be able to state how you want the court to adopt and apply the law. If you want your client to win, you must state how you want the court to apply it.

State why your client should win: You should state in your arguments why your client should win. You must give some coherent reasons for that. An advocate’s job is to convince the court that your client ought to win, and give the court a legally-permissible route to do that.

State the court what you want it to do: You must be able to state the court what you want it to do. You should convince the court it can do what you want it to do.

Arguments need to be concise and brief

The pattern of written arguments may vary from case to case. But in general the written argument note should set forth concisely and under distinct headings the arguments in support of the case. The note should be brief and concise and should come with distinct heads. It should include in it the list of dates, the admitted facts and the disputed ones.

Submission of argument note is a mechanism to assist the court too. Therefore simply filing a list of connected judgments and attaching Xerox copies of them does in no way assist the Court in its adjudicatory process.

Similarly filing long-winded arguments, without proper structure and arrangement, does no good to the court.

Stress on key points

The key issues to be decided in the case by the court should be duly formulated as questions or propositions. The note should stress on those propositions or issues.

In case the issues have been framed, distinctly reasoned arguments on each issue should be included in the note of arguments.

However two or more closely intertwined issues can be conveniently addressed together, as you can see in some judgements.

Structure of the arguments

On each issue, the fact relating to every issue should be stated in support of every proposition (a statement that affirms or denies something) at first. That means for each proposition, the arguments should start with facts on which proposition or issue is grounded.

Then, the statutes applicable to that particular issue should be cited with excerpts from closely relevant - only relevant - judgements. That should then be followed by citation of closely connected case-laws - both for and against.

The case laws in favour of and against your arguments should be included so as to make the note properly balanced. Otherwise, the note containing one sided arguments cannot be treated as a proper one.

Cite Supreme Court judgements first

The judgements from the Supreme Court must be placed first. Then the judgements from the High Court under which your court comes must be placed next. Finally those judgments from other High Courts must be placed thereafter.

In each group of citations, the judgments are to be arranged in the reverse chronological order (the recent one should come first) so as to make out the precedence easily.

For each important case you want to rely on, a brief resume of the factual scenario in which the judgment was rendered, must be stated and that should be followed by the excerpts of the relevant portions.

The old judgment, which has been cited and reaffirmed in a later judgment, need not be cited. In such a scenario, the later judgement alone needs to be cited. But if the later judgment merely follows the old one and says absolutely nothing new, then the old judgment, which lays down the law and carries the reasoning, should be cited as the first. The later judgment ought to be noted as the one that simply follows or affirms the earlier judgment. In such a citation, the earlier judgment may be excerpted or discussed together with a brief resume of the factual scenario in that case.

After the judgments have been cited or portions excerpted, the ratio-decidendi ( it is the reasoning part based on which the conclusion is arrived at) of the judgment needs to be stated. It is, in fact, the ratio-decidendi, but not just the conclusion (or the obiter dicta), that forms as the binding precedent.

Include contention of the other party

If the opposite party has raised some contentions, they must be answered in your argument note. Such contentions shall not be left ignored for the court to find an answer. Of course, it is the court’s duty to choose between two contentious points. But the duty of the advocate is to assist the court in finding the law and reasoning.

When all the issues or propositions have been stated, the arguments should be summed up in such a way that the Court can get a fair idea of where the arguments are leading to or rest.

Throughout the written arguments, the reference and page numbers of every document or judgment must be given in such a way that it can be easily referred to for confirmation.

Keep the arguments short

It is always better to keep the arguments so brief. Submitting a long mass of incoherent arguments will not be appreciated. The structuring of the arguments (what comes first and what comes next and so on) is of great importance.

The written argument note in an ordinary case may not normally exceed around five pages so as to be brief and readable. Of course there are exceptions. The copies of the judgments accompanying the written arguments should have relevant portions highlighted for easy use of the court.

The photocopies of the relevant pages of the documents already on case record with relevant portions highlighted should also be attached to the written submissions for easy and convenient referencing by the Court.

If such an approach as stated above is followed, the Court can save its precious time for quality work. Then there should be little possibility for the court to land up in appalling errors in judgement.

Some general tips on how to write

Always keep written arguments simple, plain and effective. It is better not to write like an articulate lawyer. Rather it is always well paying if you try to make the note simple enough in such a way that a stranger could read and understand it. 

Use a style which is clear, concise and focused. Use language that is active, all-inclusive (covering every aspect), and visual (that provides a mental picture) in such a way it gives the readers a vivid picture of the things with colour, context and action.

While writing the arguments think like a judge and then write them for the judge who is going to read and act upon it. Judges are under heavy time pressure due to overwork. So avoid placing hard-to-read materials in the form of argument note before him.

In the argument note you should try to appeal to the judge’s sense of reasonableness and fairness. Please provide enough explanation that could go very well with their perceptions and attitudes. You must anticipate the Court’s concerns in all possible ways and provide some persuasive answers to each one of them. You must start with the strongest point and then move on to the weaker ones down the line.

Use a short overview that tells the court in a nutshell what the case is all about. The overview should contain the point you are trying to make in the case. You need not put all your supporting arguments there.

First find the key theme of your case and stick on to it.  Every case should have a central theme and some sub themes revolving around it. You must find the central theme of your case based on the facts and applicable laws which will create a strong case for you. The theme may have two contrary issues, creating a duality.

While writing imagine as if you are telling someone what your case is about and why they should care. Use a method of disguised story telling along with providing proper reasoning. Such a method will draw the attention of anyone so naturally.

Let a second person have a look over your note. Ideally this should be someone who has a critical mind to cut the clutter and cull out the unnecessary ones from the numerous arguments.

The appearance of the note is important. Remember that the first impression counts. A good-looking document will help its reader get the point quicker and retain it longer. A well-organized, easily-accessible reader-friendly document is persuasive. To sell your idea you must use a tantalising pack of arguments.

You must include a clear and detailed “Table of Contents”. Make headings meaningful. Avoid long paragraphs. Use bullets or other aids to make the document visually easier one to read. Use white spaces in text for making reading still easier.

Avoid writing too much or too little. Find a meaningful balance between both. Avoid using legalese (the term legalese refers to a style that uses the abstruse technical vocabulary of the law). Use ordinary, simple-to-understand language. You must try to think professionally, but still keep conversational and unpretentious style. Avoid acronyms, clichés and verbose fillers as far as possible.

Additional Reading

1. Mst. Kiran Chhabra And Anr. v Mr. Pawan Kumar Jain  available at https://indiankanoon.org/doc/164999544/
2. Oral and written arguments in Higher courts ( The Report No 99 of Indian Law Commission) available at http://lawcommissionofindia.nic.in/51-100/Report99.pdf
3. Written arguments by Prof Anbazhakan in Jayalalitha case is available at  https://www.thehinducentre.com/multimedia/archive/02129/3__Written_Argumen_2129205a.pdf

The author, now practising at Thrissur District Court and can also be reached at rajankila@gmail.com