Before preparing one’s heads of argument, it is important to consider several things. Firstly,
what kind of litigation is one pursuing? Is it an action or an application proceeding? This will
determine how one treats one’s evidence and structures one’s argument. Secondly, what
evidence must one lead? Is it admissible? The admissibility of evidence determines what one
may use to reinforce one’s application.
The first duty of any admitted advocate or attorney is as an officer of the Court. As an officer
of the Court, one is under an obligation not to mislead the Court. This means that one will
have to alert the Court to precedents and evidence which may be against one’s own position.
However, this does not mean that the case is over. The purpose of Heads of Argument is to
get around these difficult precedents and make a persuasive argument for the Court to find in
one’s favour.
The most important thing is for one’s Heads to be logical, structured, and persuasive, using
the law at your disposal to craft a convincing argument for the Court.
Each Court has its own rules about how to draft Heads. The Uniform Rules of Court are the
rules for the High Court, but each division has variations on the rules, called “practice
directives”. These directives will guide how the procedure for different matters in the Court,
for example, rules applicable to urgent applications, ex parte applications, etc. This is
something to consider even before drafting the substance of one’s Heads. It would be
catastrophic not to follow these rules, as it will cost one’s client and be a professional
embarrassment. The Judge’s focus must be on the merits of the matter, not on something else
like a mistake in Heads. Thus, before writing Heads, it is important to familiarise oneself with
these rules, which will also give information like format, deadlines, font, etc.
Once one has considered the rules, then one may think about the substance of the argument.
The first thing to do is to clearly identify the issues. What is the “theory” of one’s case? This
helps the judge to understand what one is addressing and what one needs to prove to be
successful. This is a “map” for the Court. The issues will depend on your position in the
litigation (as applicant or respondent). In this section, one will highlight who bears the onus
of proving the issues, which will influence how one frames the issues. Furthermore, the
standard of proof and whether one or one’s opponent has met the required standard will come
into play.
As much as Heads are a map for the Court, it is also a map for one’s own argument and what
one must elaborate on. Each point in one’s Heads will require oral arguments. One must
always have the end in mind and to lead that judge to that end by identifying the issue and
supporting that with the evidence of the case and the principles of law.
Don’t list alternative arguments in Heads. Heads should be short; 15-20 pages is sufficient.
One does the real work on one’s feet in oral arguments where the arguments in the Heads are
unpacked. Long Heads will inundate the judge with information and open you up to more
questions.
What one think of the case is irrelevant. One has a duty to one’s client to do as they instruct.
Do not try to work one’s own position into the Heads. One does not make a decision as to
how to work without the client’s approval. It is also unethical to try to influence the client.
Identify the best points in favour of one’s position and include them in Heads. But also
include the counter-arguments to address them. One needs to see where one’s opponents are
going and create a response to them. This gives the Court a clear indication of what one will
argue and why you think the other side should not succeed. Judges form prima facie views
about the strength of a case based on Heads. In oral arguments, it is easier for one to
strengthen the judge’s opinion that one’s case is strong rather than to change their mind that it
is weak. However, the response to one’s opponents should not be too long.
It is important to deal with difficult issues. Don’t skirt them or hide them in verbiage. Brevity
makes one think and it leads to an easier understanding of the issues and the case.
Heads will go through many drafts. Don’t be afraid of this. Legal writing takes time, which is
not necessarily a bad thing when lawyers are paid for their time! If one is delivering quality
work, it is worth what is charged.
Structure
The Harms article outlines nicely the structure of the Heads. Some of the Court rules will
detail how Heads should be structured.
The first paragraph is an introduction which sets out the issues in the case. The second
paragraph deals with jurisdiction and why that specific Court has authority to hear the case.
The third paragraph deals with the standard of review (how is the Court going to arrive at a
conclusion?)
Thereafter, stipulate the facts and one’s argument. This argument must be logical. Evaluate
evidence before moving on to the law. Keep sentences and paragraphs short. Only quote if it
is necessary for developing the law. In the conclusion, bring everything together and make
the final submissions.
Footnotes can be voiced in oral arguments instead of being written down.
It is advised to look up different sets of Heads and from them to develop one’s own style.
This will help in expressing oneself persuasively. This style should also be flexible to
accommodate different circumstances and scenarios.
As a disclaimer, this is only Advocate Samuels’ position. Every advocate has their own idea
of what an ideal set of Heads should look like.