Written Pleading
A Written Pleading
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What is a written pleading? What is the function of the pleading?
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Your understanding….
Function of Pleading [EU]
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Your thoughts
The ECJ
Regardless of the nature of the proceedings concerned (direct action, reference for
a preliminary ruling, appeal), the purpose of the written procedure is always the
same, namely to put before the Court, the Judges and the Advocate General, an
exhaustive account of the facts, pleas and arguments of the parties and the forms of
order sought.
In that connection, it is important to note that the entire procedure before the Court,
in particular the written phase, is governed by the principle whereby new pleas may
not be raised in the course of the proceedings, with the sole exception of those
based on matters of law and fact which come to light in the course of the procedure.
The procedure before the Court does not therefore have the same flexibility as that
allowed by certain national rules of procedure.
A Reference…Know the Procedure
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What is a reference?
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What is the procedure?
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What function does the written pleading serve?
Reference
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The reference for preliminary ruling forms part of the procedures which may be exercised before the Court
of Justice. This procedure is open to all Member States’ national judges. They may refer a case already
underway to the Court in order to question it on the interpretation or validity of European law.
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Article 19 TEU
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Case 166/73 – Rheinmühlen-Düsseldorf and Einfuhr- und Vorratsstelle für Getreide und Futtermittel
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C-415/93 Bosman
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C-14/86 Pretore di Salo
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C-206/01 Arsenal FC v Reed
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Cases: 244/80 Foglia v. Novello, C-83/91 Meilicke
THE UNITY OF EUROPEAN LAW AND THE OVERLOAD OF THE ECJ – THE SYSTEM OF PRELIMINARY
RULINGS REVISITED, Koen Lenaerts
Some Rules
Know Your Audience
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In all writing, the first rule is to know your audience. If you are
communicating to a court, know the court—be familiar with the local
rules and practices, the members of the court, and preferences of
those individuals. The first question is all writing is: For whom are
you writing?
FRONT-LOAD YOUR DOCUMENT - CONTEXT
BEFORE DETAIL
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As with all writing, organize your document to be front-loaded. That
is, educate the reader as to what is coming. Put the important
material up front. Readers understand much more easily if they have
a context. Because readers understand new information in relation
to what they already know, tell them a piece of new information that
relates to their presumed knowledge. Then, build on that information
with each new piece you add.
FRAME THE ISSUE IN FEWER THAN 75 WORDS
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The most important part of your pleading, is framing the issue. What
is the question you are trying to answer for the court? What do you
want the court to decide?
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Do not start writing your pleading until you have a succinct
statement of what the case is about. And you must do this in 50-75
words. If you can’t explain the case in 75 words, you do not
understand it very well, and neither will your reader.
STATE THE FACTS SUCCINCTLY
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You have already told the reader what the issue is and generally
what kind of case it is in your 75 word—or 57 word—statement.
Then expand on that. After you have done your short statement of
facts, you weave them into the discussion section of your opinion—
and you can add and expand there if you need to. Your first
statement is to give context—a roadmap.
HEADINGS ARE SIGNPOSTS - THEY SHOULD
INFORM
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As part of the “container,” have headings that tell the reader what is
coming. If possible, headings should convey information. “Facts”
conveys nothing. “The Fire and Aftermath” tells the reader the nature
of the facts that are coming. Headings are signposts that guide the
reader.
WRITE SHORT PARAGRAPHS
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Short paragraphs give the reader a chance to pause and digest
what has gone before. If you put three or four sentences with new
information in each paragraph, that is enough.
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And remember each new piece of information should build on the
old. You have probably seen where paragraphs are diagramed so
that each sentence refers back to something in the last sentence.
That is called building on context—building on prior knowledge.
EDIT, EDIT, EDIT
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Edit, edit, edit, and edit again. Typos, bad grammar, and misplaced
paragraphs simply take away from your argument.
WRITE SHORT SENTENCES
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Write short, crisp sentences. What is the most underused
punctuation mark in legal writing? The period. The most overused is
easy—the comma.
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More periods, fewer commas—sentence length should average no
more than twenty words. Eighteen is better.
AVOID UNNECESSARY PREAMBLES
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Cut the useless preambles. Unnecessary preambles can weaken or
hide the point they introduce. Some unnecessary preambles:
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It is important to add that...
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It may be recalled that...
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In this regard it is of significance that . . .
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It is interesting to note that...
THE PARTIES HAVE NAMES
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Don’t go through your whole pleading calling parties appellant and
defendant, or the like. Appellant would be enough, but it is better to
call the parties by name. Using names also humanises your client even corporate names, e.g., “Smithco,” sound much more human
that “Appellant and Defendant.”
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Be sure to be consistent and not switch back and forth between
“appellant,” “Jones” and “Defendant.”
USE PERSUASIVE LANGUAGE
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Use persuasive language. If you can’t explain your case, how can
you expect the readers to understand it? Similes or metaphors are
very effective to illustrate your analysis.
CONTINUE YOUR RESEARCH
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Continue your research! You might file a memorandum or a brief
months before it is argued before the court. Check every citation
periodically, and again the day before the case is argued.
Other Considerations
The Cycle
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As a lawyer you must be able to communicate effectively in writing. The ability to
write and draft skilfully is essential. Good writing and drafting requires a four- stage
process:
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(a) research/preparation, research the law, know the facts;
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(b) planning select the best structure and decide on the appropriate content;
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(c) drafting clearly and concisely set out the information/points you have planned;
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(d) checking cross-check your document to ensure that it is correct, clear,
unambiguous and meets your client’s objectives.
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Omitting any stage in this process reduces your chances of drafting or writing well.
Planning
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Consider using a skeleton argument to start planning your case
theory
Drafting
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Having carefully planned the content and structure of your
document, you can confidently begin to draft. Your document should
be as easy as possible to read and understand. It is essential that
everything you draft is precise and unambiguous. You should try to
be as concise as you can. Concise documents are easier and
quicker to read.
Guidelines for Using Definitions
It is usual to give the definition a capital letter and to use it with the capital letter throughout
the document. This alerts anybody reading it to the fact that a particular word or
expression has been given a particular meaning by the document.
(b) A definition should only define.
(c) If you have a definition, do not forget to use it when you are drafting the rest of the
document.
(d) When you use a defined term, check that it makes sense within the sentence.
(e) In a definition, do not define by reference to other, undefined terms. Padding/superfluous words
Cut out unnecessary phrases which lengthen the sentence while
adding nothing to its meaning. For example:
‘in the circumstances’;
‘in this instance’;
‘the fact that’;
‘of course’.
Tautology
Tautology or saying the same thing twice using different words should be avoided. For example:
‘unfilled vacancy’; ‘true facts’;
‘now current’. Similarly, avoid excessive use of adjectives which do not make the meaning more precise. For example: ‘grave and fatal error’;
careful and detailed consideration’.
Have a Method
I.R.A.C
Issue. Rule. Application. Conclusion
2
Relevant Rule
1
Identify the
relevant issue
3
4
Reach a
conclusion
Apply the rule to
the issue