Criminal Law

Writing a compelling, effective factum for an appeal

By Rob Lamberti, Contributor

Writing in a compelling manner that is straight to the point is a necessary art in crafting an appellate factum, Toronto criminal lawyer Melanie Webb tells

This is one of the top 10 tips the founder and principal of Melanie J. Webb Barrister offers on writing an effective factum for an appeal panel.

Her checklist for counsel:

1. It is essential to carefully review the relevant provisions governing appeals applicable to your province and level of court, Webb says. For indictable appeals in Ontario, this would include the Criminal Appeal Rules and the practice directions posted online at the Court of Appeal (OCA) website.

For summary conviction appeals in Ontario, review Rule 40 of the Criminal Proceedings Rules for the Superior Court of Justice and particularly Rule 40.11 regarding the general requirements of the factum, she says.

2. There are many excellent primers dealing with appellate advocacy available, Webb says. One paper written by OCA Justice John Laskin found on the court's website, is a “must read,” even for lawyers who have been writing facta for years, she adds.

3. It is helpful to use headings and subheadings to organize sections of a factum, she says. Lists also help by clearly grouping together the points that support an argument. They will visually break up a lengthy block of writing, give structure to the factum and make it easier to read.

4. Focusing on the facts that matter to the appeal is key, Webb says. It can be challenging not to waste too much space on the "Summary of the Facts." To adhere to the strictly enforced page limit, there will be little room for legal issues if too many pages are devoted to summarizing the evidence, she says.

"An excessively lengthy summary of the facts is unlikely to be either useful or compelling to the court," Webb says.

5. Lawyers should be fair and even-handed in dealing with the record while acknowledging points that go against their argument, Webb says. Those points should be addressed in a measured way in anticipation of the opponent’s argument, she adds.

6. Submissions should be concise without flowery or over-the-top language. "Do not use more words than necessary," Webb says.

7. It is critical to provide accurate transcript references especially if a witness addresses an important issue more than once in the course of their evidence, she says. "Similarly, ensure accurate references to the 'Appeal Book' are provided where necessary, such as when referring to specific exhibits or other documents," Webb adds.

8. It is helpful for counsel to prepare a transcript summary for themselves, especially for lengthier cases involving several days or weeks of evidence, she says.

"This can be useful for preparation of both the factum and for oral argument, and can save you time in locating transcript references and inserting them into your factum," Webb says.

9. Asking a colleague who specializes in appellate litigation for an example of a solid factum may be of assistance, she says. "Everyone has his or her own writing style. This is not to suggest counsel needs to mimic someone else’s writing, but rather they may use it as a helpful template," Webb says.

10. Having someone you trust review the draft can also be beneficial, she says. Fresh eyes can help identify where excess can be trimmed and where elaboration is needed, provide feedback on how the factum flows, and catch bad writing habits, Webb says.

"But more importantly, a reader new to the case can follow the argument and help determine if it is persuasive," she adds.

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