His Honour Justice David Boddice had “a word of warning” in regards to written advocacy to the audience at Friday’s Personal Injuries Law Conference in Brisbane.
The 2024 Queensland Law Society conference theme was the 3Ps of Personal Injuries Law: Preparation, Principles and Presentation, which His Honour and Barrister Richard Douglas KC addressed at Law Society House.
The Supreme Court of Queensland Justice addressed all three areas and had sage advice for practitioners in regards to the third aspect.
“Nowadays presentation involves both the written and the spoken word. Written advocacy is increasingly assuming a common place in all aspects of litigation,” His Honour said.
“It is an art which done well, can make the difference to a successful outcome; if done badly, it can often be a central feature in the reasons for failure of the proceeding.
“A word of warning – written advocacy is not to be undertaken on the basis that there is a regurgitation of everything that appears in the oral and documentary evidence that is no help whatsoever to the court.
“Written advocacy should be a means by which the issues are narrowed and succinctly addressed for the benefit of the court.”
His Honour said once the purpose of written advocacy was understood, oral advocacy became more focused.
“Addressing that which what needs to be responded to rather than a repetition of what has been said in writing,” he told the audience.
His Honour cautioned about the use of footnotes.
“Presentation, be it in a written or oral form, requires careful consideration. In the written form, that care includes basic things such as correct grammar, avoidance of spelling mistakes and a sparing approach to the use of footnotes.
“It is very unhelpful for your best point to be a footnote.”
Addressing the third P further, His Honour said ultimately structure “aids in persuasiveness”.
“Well-structured submissions crafted with an eye to what ultimately you would like the judgement to contain assists the judge,” he said.
“Junior solicitors may marvel at the suggestion that they are going to be involved in that presentation phase. However the art of presentation is best learned when young. It will likely shape the type of practitioner you will be when it is your time to mentor a young solicitor.”
Richard Douglas KC shared tips with the audience.
Mr Douglas also shared his knowledge on the 3Ps, presenting The Calculus of PI Practice – plaintiff or insurer which featured 25 tips including the importance of social media searches leading up to trial.
“Some of you will think ill of me,” he said. “But in every case I’m in, I ask my instructing solicitor … to do a … social media search several times over the point right up to the day before trial.
“I hate social media. I really do. I can’t stand it but I know probably know so much about it because of this, because people lie on social media.
“I don’t know why they do it. But they will often … big note themselves. It is amazing how often it arises.”
Mr Douglas also adopted a quote used by the chair Vanessa Herrmann, CEO of major partner Red Health Independent Medical Assessments, in her opening to the session.
Quoting former world champion boxer Mike Tyson, they both said: “Everyone has a plan until they are punched in the mouth”.
Mr Douglas emphasised preparation for trial.
“It really says it all about preparing litigation,” he said. “You’ve got to be prepared to be punched in the mouth. You’ve got to be prepared to be able to respond to that.
“The likelihood is you will be punched in the mouth. A couple of things about that, though. You’ve got to make sure you plant a few punches yourself, it’s a pretty good way to defend yourself.
“You’ve got to be prepared to feint, you’ve got to be prepared to get to the end of the round and you’ve got to be prepared to get to the end of the contest.”
Recordings of the conference, with major partners Red Health and Assessment Hub, will be available at the qls shop in the future.
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