FOREWORD (page 2)

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This book too began as an in-house project to guide Troy Simpson’s staff and clients in the ways of maximising effective presentations before Australian courts and tribunals. The utility of the in-house guide was soon seen as something that might be useful, and marketable, for others. I applaud the willingness of the author to share his ideas with a wider audience. Progress in the law, and in other disciplines, depends on sharing the good ideas of master spirits.

In a time of rapid technological and social change, the past can be only an imperfect guide to us in tackling the present and anticipating the future. There is a lot of practical wisdom in Win More Cases. Each reader will read it with different experiences, different needs, different problems, and distinct expectations. I do not doubt that many will obtain a lot of use from this work—just as my own earlier endeavour gave its users the digested benefit of my industry and cogitation in the specialized field to which I thought my professional life would be devoted.

Of course, it is vital to appreciate that change is the constant companion of a life in the law today. When I began as an articled clerk in the 1950s, the Australian legal professional was small in numbers, strictly divided between different jurisdictions, protected by many monopoly arrangements, intellectually hostage to the judges of England, and still committed to jury trial of most causes and the unbroken oral tradition of the common law. Winning more cases in that context demanded skills different from those that are at a premium today. Now, an Australian lawyer is likely to think in national terms; to work with statute rather than common law; to practise in a national or international legal firm or private corporation; to avoid courts wherever possible by using alternative dispute resolution; and to be skilled in written work with only occasional visits to the orality of the courts. The big shifts in the way law is practised gives emphasis to written persuasion. This is a natural development for, on average, we can read four times more quickly than we can communicate orally.

Where endeavours to resolve disputes without any oral hearing (still less before a jury) have failed, written persuasion is now an essential ingredient of success. The skills in providing accurate, incisive, interesting, and readable arguments require special talents of the modern lawyer. The High Court of Australia⁵ can only get through its burgeoning list of applications for special leave to appeal by sifting out the cases deemed suitable for a 20 minute oral submission, based on the written arguments. It is now written persuasion, rather than flights of advocacy before entranced jurors and impressionable articled clerks, that tends to win cases and persuade over-worked decision-makers. This is not to say that a skilful deployment of verbal gems will be wasted in the current age. A felicitous phrase, an historical allusion, a touch of irony, or a brilliant digest of impressive detail will win the eternal gratitude of the judge, magistrate, or arbitrator, forever battling against the oncoming tide of papers and hearings.

There are differences too between legal practice in different national jurisdictions. To win more cases it is essential for the lawyer to become familiar with local demands and expectations. For example, Australian courts are much less willing to permit interveners and to use the submissions of amici curiae ⁶ than courts and tribunals in the United States of America. Oral argument is even more sternly rationed in that country than it now is in Australia. Yet recent trends indicate a broad convergence of professional methodologies.⁷

⁵ www.hcourt.gov.au.

⁶ Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2007) 81 ALJR 304, 322 [77]–[78]; compare Levy v Victoria (1997) 189 CLR 579.

⁷ Michael Kirby, ‘The Future of Appellate Advocacy’ (2006) 27 Australian Bar Review 141.