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Arguing a point when speaking to a judge is “presenting your argument” or “making your submissions” on that point. You should refer to your submissions as “submissions”, rather than your “thoughts” or “argument”. So you should say “it is my submission that…” rather than “I think that…” or “I am arguing…”.

When you are beginning your submissions you could say “I respectfully submit that…”, and when you end your submissions you could say “If Your Honour/the Court does not have any questions, those are my submissions”.

There is no universal format for submissions that apply in every type of hearing. Essentially, what you need to do is set out what your argument is and why. The ‘why’ of your argument would need to make reference to both evidence and law in most cases. Sometimes, however, the parties are in agreement about the evidence but not about what it means in law, or in agreement about the law but not about the evidence. There may not be any need to make reference to agreed matters in such cases if it is plain to all concerned. It is always worth double checking that with the judge rather than making an assumption though. It could be very dangerous to assume the judge appreciates the legal consequences of evidence at issue for example.

A format for submissions that could be applied in many hearings:

1. Introduce your argument.

Give a brief summary about what you are arguing about and what your position is. Avoid going on and on about details at this point. You will go into detail as you explain your argument later on. At this point you should simply tell the judge what the point of all the detail will be.

An example for a plaintiff:

“Your Honour this is a case about whether the defendant is liable as a guarantor. It is respectfully submitted that he is. Guarantees must be in writing and signed by those who give them. Here the defendant signed a document that, in my submission, amounts to a guarantee.”

The plaintiff usually sets out the background of the case has addressed the defendant’s position to some extent before the defendant has had an opportunity to argue. The defendant could therefore get straight to the point.

An example of an introduction for a defendant:

“Your Honour it is respectfully submitted that the document at issue does not identify what if anything the defendant had actually agreed to. Any agreement about a guarantee therefore fails for want of certainty.”

2. Explain your argument

This part makes up the bulk of your submissions. It would go into detail about the evidence and the law that supports your position, as well as addressing argument against your position.

For plaintiffs, a helpful way to structure this part of your submissions is to use the “F.I.L.A.C.” sequence:

Facts: First you address the facts that are relevant to the issues in the case. You would usually address who the parties are, how they are related to each other, what led to the dispute that the case is about and what evidence supports your position.

Note this text deals with evidence at trial, specifically, in a separate part.

Issues: The next step is to identify the issues that arise from the facts. These could be issues to do with evidence or law or a mixture of both.

Legal principles: Once the issues are identified you would go on to discuss the legal principles that are relevant to resolving the issues one way or the other. ‘Legal principles’ may be found in authorities such as legislation, case law and legal texts.

You should carefully set out where you have found each legal principle you refer to.

An example of a reference to legislation:

“Section 27, subsection (2)(a) of the Property Law Act 2007”

An example of a reference to case law:

“Norman v ANZ National Bank Limited [2012] NZCA 356 (8 August 2012) at paragraph [37]”

However, note that you should not say “v” or “versus” in the Norman v ANZ National Bank Limited example if you were referring to that case orally. You should say “and” instead, so “Norman and ANZ National Bank Limited” if you were talking about that case out loud.

An example of a reference to a legal text:

“Burrows, Finn and Todd, Law of Contract in New Zealand (3^rd ed, 2007) at 10.6.2(a)”

Application: This step ties the relevant legal principles to the particular facts of your case. So you would explain how the law applies to the facts for each issue that is being argued about.

In the example of an argument about whether someone gave a guarantee:

1. The issue would be whether the defendant gave the guarantee.

2. The facts are, say:

a. There is a lease between a landlord and a tenant.

b. The defendant is not the landlord or the tenant.

c. There is a part in the lease that says “Guaranteed by”, and then the name of the defendant, and then “dated 1 January 2013”.

d. The defendant signed next to his or her name.

e. There is nothing else about a guarantee in the rest of the lease.

3. The law is, say:

a. Section 27 of the Property Law Act 2007 says:

“(1) This section applies to contracts of guarantee coming into operation on or after 1 January 2008.

(2) A contract of guarantee must be –

(a) in writing; and

(b) signed by the guarantor.

(3) Subsection (2) does not require the consideration for a contract of guarantee to be in writing or to appear by necessary implication from a writing.

(4) In this section, contract of guarantee means a contract under which a person agrees to answer to another person for the debt, default, or liability of a third person.”

b. The Court of Appeal in Attorney-General v Barker Bros Ltd [1976] 2 NZLR 495 at 498 to 499 found that contractual terms cannot be enforced if they are uncertain and there is no means or standard available to make them certain.

4. In applying the law to the facts the parties might agree that the Property Law Act requirements for writing and a signature were satisfied in this case. Their argument may focus on what was guaranteed. The plaintiff could argue that the defendant must have guaranteed all the obligations of the tenant because that is the only sensible conclusion to be reached in the circumstances. The defendant could argue you cannot tell what was supposed to be guaranteed from what was written down, so section 27(4) is not satisfied. The defendant might even go further to say the guarantee part fails for uncertainty given there is no writing that could help to clarify.

Conclusion: You would state your position on each issue at this stage. That is because it would not be sensible to arrive at a conclusion that is inconsistent with your position. If you did then you might have to concede the issue and never needed to argue about it in the first place.

There can be a degree of overlap between facts, issues, legal principles and their application and the conclusions they lead to from time to time, and it might be difficult to divide everything into separate categories as above. That should not be a problem so long as to do actually address each F.I.L.A.C step in the course of your submissions. The main thing is to make your position clear and the reasons why you have taken that position.

Defendants often structure their submissions using the slightly different I.R.A.C. sequence. This can be useful where there is little or no dispute over the facts or a case, and where the plaintiff has already set those out to the court.

I.R.A.C. stands for Issue, Rule (legal principle), Application and Conclusion. You would apply the I.R.A.C. sequence to each separate issue being argued about in a case.

3. End your turn

At the end of your turn to speak you would ask whether the judge has any questions and, when those have been addressed, you would say “those are my submissions” or “those are the submissions for (the party you are representing)”.

One way to go about it is to say:

“Unless Your Honour has any questions, those are my submissions.”

You would then sit down.

4. Replies

Submissions made by way of reply should only answer matters raised in a response that have not already been addressed. If you have already addressed the applicability of section 27 of the Commerce Act 1986 in your submissions, for example, you do not need to cover that same ground again by way of reply: You have already made your points so there is no need to make them all over again. If, however, the other party raises a whole new argument relating to section 36 of the Commerce Act 1986 by way of response, and that was not addressed in your submissions, you would be right to take the opportunity to address that argument by way of reply.

Replies should be limited to replies only, and should not raise new matters that could have been raised in submissions at the outset. However, new matters might be necessary or unavoidable in the course of a reply. In that case the other party might expect an opportunity to reply to the reply. The main thing is that the parties have an opportunity to respond to what the others have said.

You might go about a reply by identifying each separate submission that requires a reply and then addressing them in turn. You could begin your reply to each submission by saying something like “In reply to the submission that…”. You would then describe the submission you are referring to and then go about giving your reply to it.

Replies really are just more submissions, albeit in relation to new matters arising in the course of a response. See those parts of this text above on making submissions for how you might go about giving a reply.

At the end of a court fixture

The judge will usually comment on how he or she proposes to deal with or ‘dispose of’ the case when the last party to speak has ended their turn. The judge might decide the case at that point and advise the parties of that decision then and there. Alternatively, the judge might adjourn the hearing for a time and direct the parties to return to court later that day. The judge might then give his or her decision when the parties return to court. Another alternative is for the judge to ‘reserve’ the decision. That means the judge would give matters some further consideration and release a written decision later on. You might expect to receive a reserved decision within 3 months of the last hearing day.

In any event, at the end of the hearing and when the judge has said all he or she has to say, you could say “as Your Honour pleases” or “as the Court pleases”. You then stand for the judge when he or she stands to leave. Lawyers bow to the judge at that point and the judge bows back. All remain standing while the judge leaves the courtroom.

Note: This content was originally published by CourtKeys.com in 2015. Disclaimer

Making submissions