BETTER ADVOCACY

Heads of argument in
courts of appeal
By LTC Harms, Deputy President
of the Supreme Court of Appeal

H
eads of argument win raised. Consider that the client is paying you In addition, and to emphasise the point,
to make value judgments and not to say what the rule requires the heads of argument to
cases on appeal; and lose
comes into your, the client’s or the attorney’s be clear, succinct, and without unnecessary
them. These truisms are head. Remember that one court has already elaboration.
not generally accepted. Counsel heard it all and has expressed reservations Some years ago two tax appeals were
believe that they win cases by that may have merit about some of these. A heard on the same day because they raised
case at the appeal stage is not the same as the same legal issue. One appellant’s heads
the force of their personality
when the trial began or even ended. were in excess of 200 pages while that of
and oratorical skills. They forget Shaw QC, for the other appellant on the
Importantly, contemplate how to make the
that courts of appeal have the case easy for the court. If you help the court
same point, was less than 20 pages. The court
habit of reading the record and was more interested in Shaw’s argument and
the chances are that the court will come to
it is unlikely that the judges had studied the
heads before a hearing. In fact, your assistance – to the extent it can. Think
longer heads in any detail. (Come to think of
the Constitutional Court rules of the judgment that you would like to see:
it is it because of Shaw’s influence that KZN
structure your heads so that they can form the
state that counsel has to assume heads are usually brief and that as a result
basis of the judgment. Remember that you of Suzman QC’s legacy Johannesburg heads
that they have been read. Judges have to deal with the issues. Don’t skirt them are anything but?) Judges have to read a lot,
consequently tend to form or hide them in verbiage. Brevity may take mostly irrelevant material, and it does not do
prima facie views – sometimes longer to achieve, but it makes one think, and a case any good if the heads are difficult to
it leads to easier understanding of the issues. digest, either because the dish is unpalatable
fairly strong ones – about the
or the plate is heaped.
strength and weaknesses of the The purpose of heads of
case. Rather mould the court’s argument Typing is another issue. The rules require
double spacing – not triple or quadruple. The
views instead of attempting to The purpose of heads of argument is to con- font size is also important. Judges of appeal
change them. vince the court of appeal that the court below are usually of a certain age and abhor the idea
has either erred or was correct. This means of reading with magnifying glasses. Footnotes
What follows are suggestions that counsel
that the judgment below has to be addressed. in particular should have a readable font size.
ought to bear in mind when drafting heads
Too often counsel simply ignore that judg-
for appeal purposes. Obviously not all are ment and reargue the case, quite regularly by
The structure of the
applicable in every case. The views are by recycling the heads used in the trial court. This
argument
their very nature personal but not necessarily approach is not only disrespectful towards Like anything else an argument must have
idiosyncratic. They have been formed over the court of first instance – it is also unhelp- a beginning, middle, and end. And all this
a period of 18 years as a result of interac- ful and misses the point that appeals are not must be divided into consecutively numbered
tion with colleagues at the SCA. And they re-hearings. paragraphs. Each paragraph must deal with a
conform to views that are generally held. In single idea but paragraphs that are too short
this regard counsel, who are interested in The nature of heads of or too long are irritating. For numbering do
persuading judges, are referred to Antonin argument not use, for example, ‘Part R par 21.1.1(a)’;
Scalia & Bryan A Garner’s recent Making Your The SCA rule requires the lodging of ‘main instead use 1 through to 1701 and consider
Case (Thomson/West, 2008). You may dislike heads of argument’. There is a clear distinc- the use of bullet points within a paragraph.
Scalia’s legal philosophy but you cannot fault tion between ‘heads of argument’ and writ- They have the advantage of pinpointing an
his insight into advocacy. ten argument – the rules do not require or argument. And they prevent you from read-
permit the latter. The operative words are ing your argument at the hearing.
The initial approach ‘main’, ‘heads’ and ‘argument’: To divide the different parts of the argu-
Before you sit down to dictate, type or write, ‘main’ refers to the most important part of ment consider the use of headings of the kind
refresh your memory by reading the rules of the argument; used in this article and be kind to the court by
court and the practice directions. Then take ‘heads’ means ‘points’, not a dissertation; providing a short table of contents.
time to think about the case and the point and An important matter concerns the naming
you wish to make, and ponder the value and ‘argument’ involves a process of reasoning of parties in the course of the argument.
purpose of some of the issues that have been that must be set out in the heads. ‘Appellant’ may mean the appellant in a lower

20 advocate December 2009

appeal court or the one in the particular court. And the term ‘respon- arate line or unnecessary detail. It usually suffices to conclude a state-
dent’ can also have different meanings in a case. For instance, in a ment of fact with ‘. . . (Plea 1/35/5-7)’ or ‘. . . (Ngubane 3/333/2-20)’
matter that began on notice of motion, and has gone through the full instead of ‘. . . (the defendant’s plea at Record volume 1 page 35 lines
court and then arrives on appeal, it may have three meanings. Rather 5 to 7)’ or the like. By the way, do not omit the volume reference unless
use abbreviated forms of the real names of the parties, excluding their it is a one volume record (as if we could be so lucky).
ID numbers. Or use something like ‘the Bank’ or ‘the surety’. But do not
use self created or unfamiliar acronyms like TSFPOTC for The Society The argument
for the Protection of the Constitution; ‘Society’ would do. The third part usually consists of argument, whether legal or factual. It
The introduction is not possible to be prescriptive about the form of argument but there
are certain aspects that ought to be borne in mind.
The introduction should preferably begin with a definition in one para-
The first concerns the sequence. Not only must it be logical. It must
graph of the issue on appeal. The definition should not be meaning-
begin with the main argument. Beware of alternatives. They tend to
less like ‘this is an appeal on sentence’; rather ‘this appeal raises the
weaken the more important points.
question whether a sentence of life imprisonment is appropriate in the
special circumstances of the case (the age of the accused) in spite of Then, as mentioned, meet the issues head-on. If you do not, the
the minimum sentences provisions.’ court will make you do so. Deal with the essence of the findings of
the court below and deal with your
The next paragraph should deal
opponent’s argument or expected
with the court’s jurisdiction: is the
matter appealable? Has leave been argument.
granted? Cite the statutory provision Thirdly, the argument must be
that deals with the issue and any par- clear and succinct. Do not clutter the
ticular case law. argument with unnecessary refer-
The third paragraph should deal ences. If the point is trite (e.g. ‘the
with the standard of review, meaning Plascon-Evans rule’), do not give a
the basis on which the court may deal reference. If it is not trite give one ref-
with the matter. Is the matter discretion- erence – usually the leading case but
ary (and if so, what type of discretion sometimes the latest. A line of cases
is involved)? Is the matter factual and if should only be quoted if the argu-
so, how should the court approach the ment depends on the development
factual findings of the court below? of the law through them. Again,
And so forth. The advantage of this is avoid footnotes. And give a common
that it concentrates the mind and the recognised citation, something the
heads. In many US appeal courts, this judge will probably have at hand.
paragraph is obligatory. Tell your junior to look up the neutral
If you intend to raise a constitu- citation; it is of great help, especially
tional issue, say so at the outset – and with foreign cases.
say it loud and clear in the fourth para- The UK courts have a useful rule
graph (unless you wish to raise the point for the first time before the that requires that the heads must state, in respect of each authority
Constitutional Court). cited, the proposition of law that the authority states; and if more than
one authority is cited for a proposition the reason for citing the addi-
The facts tional authorities. Follow it.
The second part of the heads should deal with the material facts in The rules proscribe (not ‘prescribe’) the use of long extracts from
chronological order. The emphasis is on ‘material.’ It is not necessary the record or from authorities. The eye tends to skip quotations. Rather
to give dates if they are of no or little consequence. Furthermore, omit summarise the extract or use bullet points for the sentences which you
unnecessary detail. A court is seldom, if ever, interested in the make or wish to emphasise.
colour of the car or its registration number or the time of the collision
or the name of the street corner if the issue is simply whether the light
The conclusion
was red or green. The final part of the heads should contain, in clear terms, the relief
The facts of the case are usually set out by the court of first instance. sought on appeal. It is not good enough to ask that the appeal be
Unless there are mistakes or omissions, why not simply refer to the upheld or dismissed with costs. More is usually required. If there is a
judgment below? And if the appellant has stated the facts, why does possibility of lesser relief it should also be clearly drafted. Set out the
the respondent have to repeat them? order that you want.
Record references for facts that are common cause should be given
and then . . .
to enable the reader to contextualise them. However, if the particular
fact is not common cause or if you are uncertain that it is, the record Heads, like good wine, have to mature. Leave them for a few days,
reference is essential. This must not appear in a footnote (many judges print them, and with a red pen revise them. If time permits revise
are allergic to footnotes, especially in heads) but does not require a sep- again.

advocate December 2009 21

If you are satisfied with your product turn to the practice note. You may simply copy and paste your argument and references into the
now know how little of the record is relevant. (Recently, on a point of judgment.
law, counsel said that all 19 volumes had to be read. When asked why,
he had a change of heart and, all of a sudden, nothing had to be read.)
Finale
Answer the question honestly. If you think that if you make the court Your attorney or client may not be impressed with the resulting docu-
read the whole record unnecessarily – in the hope that it might find a ment. They may think that the value of heads is measured in kilograms
point that you have missed – think again. or in reams. You ought to know that it takes more effort and time to
With this knowledge consider or reconsider a core bundle. You be brief, as Oscar Galgut J was wont to say, and that your time-based
should preferably agree on one with your opponent after both sets of fee will be higher.
heads have been prepared. You have to choose: who do you wish to satisfy foremost? If win-
Since you are in the process of buttering up the court, remember to ning the case is important consider the views expressed. If another brief
prepare a separate volume of authorities of those that are not readily from the attorney is foremost in your mind, bear in mind that attorneys
available. And while you are busy prepare a photocopy or a printout do not as a rule rebrief successful counsel in the belief that cases win
from an electronic database of those provisions of any statute, regula- themselves.
tion, rule, ordinance or by-law that are at issue. Bind them separately Before the hearing ensure that there is no new law (especially case
with plastic comb binders and do not use the same colour binding as law) on the issue. If there is, give the court due notice. ‘Due’ in this
your opponent has used. It helps if some pages are not bound upside context does not mean ‘at the hearing.’
down or in a wrong sequence. And if you lose the appeal in spite of all: consider that statistically you
If you also file a CD with your heads and authorities the court can only win fifty percent of your cases (if you are good).