Tips On Preparing Written Arguments

11/22/2019 Tips on preparing Written Arguments
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Tips on preparing Written Arguments

A civil case essentially is all about claim of
some legal right by one party and the
denial of it by the other party, resulting in a
judgement by a dispassionate judge
functioning as an arbiter or umpire.
In a criminal case, the prosecution charges the accused guilty of some criminal offence
punishable under the penal law and the accused defends the charges, ending up in a
judgement of either conviction or acquittal.
What is an argument?
When we think of a system of written arguments it is better for us to have some clarity on
what an argument is.
The word "argument" is often used to refer to a heated dispute, a quarrel, or a shouting-
match. But the term argument essentially refers to "a set of propositions, or statements,
which are designed to convince a reader or listener of a claim, or conclusion, and which
include at least one reason (premise) for accepting the conclusion."
An argument is "a claim or proposition put forward along with reasons or evidence
supporting it." It is "an attempt to support a conclusion by giving reasons for it."
In short, an argument is a collection of statements. It should have a conclusion the

argument attempts to establish. The others in the collection are called the premises,
which are supposed to lead to convince that the conclusion is true.
Oral arguments in hearing
https://www.lawyersclubindia.com/articles/Tips-on-preparing-Written-Arguments-10246.asp 1/13
Hearing in a court case, in which each party puts forth his arguments, takes place at the
last leg of its proceedings.
Normally the plaintiff begins the presentation of his oral arguments in a civil case.
However, the defendant has the right to begin the argument if the defendant admits the
facts alleged by the plaintiff, and contents that the plaintiff himself is not entitled to any
part of the relief which he seeks.
On the day of hearing, the party having the right to begin states his case and produces his
evidence in a civil case. The other party states his case and produces his evidence in
support of his case.
The party beginning the case may then reply generally on the case. The parties can
address oral arguments before the court and submit written arguments with the
permission of the court.
In criminal case, the prosecution produces evidence to prove the allegation of crime
beyond all reasonable doubt. The defendant’s duty is to disprove what the prosecution
charges against him and nothing more.
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Submitting written arguments
A party to a case can submit written arguments in support of his case to the court before
he concludes his oral arguments, if the court permits. The written arguments thus
submitted should form part of the records of the case.
The Order XVIII Rule 2(3A) of the Code of Civil Procedure, 1908 (CPC) recognizes
submission of such written arguments. The provision is in force since 2002. The provision
says any party can address oral arguments in a case and before he concludes the oral
arguments shall submit the written arguments in support of his case to the court, if the
court so permits. The written arguments shall form part of the record. A copy of the
written arguments is to be simultaneously furnished to the other party.
The Section 314 of the Code of Criminal Procedure, 1973 (CrPC) also provides for filing
written arguments, before concluding one’s oral arguments, to the court in a criminal
proceeding. The Section says a party to a proceeding may after the close of his evidence
address concise oral arguments. Before concluding his oral arguments he may submit a
memorandum to the court which would form part of the record of the court. A copy of the
memorandum shall be simultaneously furnished to the opposite party. No adjournments
shall be granted for the purpose of filing the written arguments unless the court considers
it necessary and records it in writing.
A broad outline of written arguments
In general the written arguments, like the oral ones, must include the following essential
ingredients:
State the facts: you must state the facts of your case, back and forth, based on the
record.
State the law: You must be able to state how you want the court to adopt and apply the
law. If you want your client to win, you must state how you want the court to apply it.
State why your client should win: You should state in your arguments why your client
should win. You must give some coherent reasons for that. An advocate’s job is to
convince the court that your client ought to win, and give the court a legally-permissible
route to do that.
State the court what you want it to do: You must be able to state the court what you want
it to do. You should convince the court it can do what you want it to do.
Arguments need to be concise and brief
The pattern of written arguments may vary from case to case. But in general the written
argument note should set forth concisely and under distinct headings the arguments in
support of the case. The note should be brief and concise and should come with distinct
heads. It should include in it the list of dates, the admitted facts and the disputed ones.
Submission of argument note is a mechanism to assist the court too. Therefore simply
filing a list of connected judgments and attaching Xerox copies of them does in no way
assist the Court in its adjudicatory process.
Similarly filing long-winded arguments, without proper structure and arrangement, does
no good to the court.
Stress on key points
The key issues to be decided in the case by the court should be duly formulated as
questions or propositions. The note should stress on those propositions or issues.
In case the issues have been framed, distinctly reasoned arguments on each issue
should be included in the note of arguments.
However two or more closely intertwined issues can be conveniently addressed together,
as you can see in some judgements.
Structure of the arguments
On each issue, the fact relating to every issue should be stated in support of every
proposition (a statement that affirms or denies something) at first. That means for each
proposition, the arguments should start with facts on which proposition or issue is
grounded.
Then, the statutes applicable to that particular issue should be cited with excerpts from
closely relevant - only relevant - judgements. That should then be followed by citation of
closely connected case-laws - both for and against.
The case laws in favour of and against your arguments should be included so as to make
the note properly balanced. Otherwise, the note containing one sided arguments cannot
be treated as a proper one.
Cite Supreme Court judgements first
The judgements from the Supreme Court must be placed first. Then the judgements from
the High Court under which your court comes must be placed next. Finally those
judgments from other High Courts must be placed thereafter.
In each group of citations, the judgments are to be arranged in the reverse chronological
order (the recent one should come first) so as to make out the precedence easily.
For each important case you want to rely on, a brief resume of the factual scenario in
which the judgment was rendered, must be stated and that should be followed by the
excerpts of the relevant portions.
The old judgment, which has been cited and reaffirmed in a later judgment, need not be
cited. In such a scenario, the later judgement alone needs to be cited. But if the later
judgment merely follows the old one and says absolutely nothing new, then the old
judgment, which lays down the law and carries the reasoning, should be cited as the first.
The later judgment ought to be noted as the one that simply follows or affirms the earlier
judgment. In such a citation, the earlier judgment may be excerpted or discussed together
with a brief resume of the factual scenario in that case.
After the judgments have been cited or portions excerpted, the ratio-decidendi ( it is the
reasoning part based on which the conclusion is arrived at) of the judgment needs to be
stated. It is, in fact, the ratio-decidendi, but not just the conclusion (or the obiter dicta),
that forms as the binding precedent.
Include contention of the other party
If the opposite party has raised some contentions, they must be answered in your
argument note. Such contentions shall not be left ignored for the court to find an answer.
Of course, it is the court’s duty to choose between two contentious points. But the duty of
the advocate is to assist the court in finding the law and reasoning.
When all the issues or propositions have been stated, the arguments should be summed
up in such a way that the Court can get a fair idea of where the arguments are leading to
or rest.
Throughout the written arguments, the reference and page numbers of every document or
judgment must be given in such a way that it can be easily referred to for confirmation.
Keep the arguments short
It is always better to keep the arguments so brief. Submitting a long mass of incoherent
arguments will not be appreciated. The structuring of the arguments (what comes first and
what comes next and so on) is of great importance.
The written argument note in an ordinary case may not normally exceed around five
pages so as to be brief and readable. Of course there are exceptions. The copies of the
judgments accompanying the written arguments should have relevant portions highlighted
for easy use of the court.
The photocopies of the relevant pages of the documents already on case record with
relevant portions highlighted should also be attached to the written submissions for easy
and convenient referencing by the Court.
If such an approach as stated above is followed, the Court can save its precious time for
quality work. Then there should be little possibility for the court to land up in appalling
errors in judgement.
Some general tips on how to write
Always keep written arguments simple, plain and effective. It is better not to write like an
articulate lawyer. Rather it is always well paying if you try to make the note simple enough
in such a way that a stranger could read and understand it.
Use a style which is clear, concise and focused. Use language that is active, all-inclusive
(covering every aspect), and visual (that provides a mental picture) in such a way it gives
the readers a vivid picture of the things with colour, context and action.
While writing the arguments think like a judge and then write them for the judge who is
going to read and act upon it. Judges are under heavy time pressure due to overwork. So
avoid placing hard-to-read materials in the form of argument note before him.
In the argument note you should try to appeal to the judge’s sense of reasonableness and
fairness. Please provide enough explanation that could go very well with their perceptions
and attitudes. You must anticipate the Court’s concerns in all possible ways and provide
some persuasive answers to each one of them. You must start with the strongest point
and then move on to the weaker ones down the line.
Use a short overview that tells the court in a nutshell what the case is all about. The
overview should contain the point you are trying to make in the case. You need not put all
your supporting arguments there.
First find the key theme of your case and stick on to it. Every case should have a central
theme and some sub themes revolving around it. You must find the central theme of your
case based on the facts and applicable laws which will create a strong case for you. The
theme may have two contrary issues, creating a duality.
While writing imagine as if you are telling someone what your case is about and why they
should care. Use a method of disguised story telling along with providing proper
reasoning. Such a method will draw the attention of anyone so naturally.
Let a second person have a look over your note. Ideally this should be someone who has
a critical mind to cut the clutter and cull out the unnecessary ones from the numerous
arguments.
The appearance of the note is important. Remember that the first impression counts. A
good-looking document will help its reader get the point quicker and retain it longer. A
well-organized, easily-accessible reader-friendly document is persuasive. To sell your
idea you must use a tantalising pack of arguments.
You must include a clear and detailed “Table of Contents”. Make headings meaningful.
Avoid long paragraphs. Use bullets or other aids to make the document visually easier
one to read. Use white spaces in text for making reading still easier.
Avoid writing too much or too little. Find a meaningful balance between both. Avoid using
legalese (the term legalese refers to a style that uses the abstruse technical vocabulary of
the law). Use ordinary, simple-to-understand language. You must try to think
professionally, but still keep conversational and unpretentious style. Avoid acronyms,
clichés and verbose fillers as far as possible.
Additional Reading
1. Mst. Kiran Chhabra And Anr. v Mr. Pawan Kumar Jain available at
https://indiankanoon.org/doc/164999544/
2. Oral and written arguments in Higher courts ( The Report No 99 of Indian Law
Commission) available at http://lawcommissionofindia.nic.in/51-100/Report99.pdf
3. Written arguments by Prof Anbazhakan in Jayalalitha case is available at
https://www.thehinducentre.com/multimedia/archive/02129/3__Written_Argumen_21292
The author, now practising at Thrissur District Court and can also be reached at
rajankila@gmail.com
K Rajasekharan
on 14 June 2019
Published in Legal Documents Other Articles by - K Rajasekharan

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Chandresh K. Shah  05 November 2019

very good explanation in simple & lucid language. To the Point Explanation. Thanks
V.N.K. MENON  23 October 2019

In a case both parties were asked to file synopsis. I had filed Synopsis. The Opposite
Party did not file their synopsis on 2 occasions. Fourth time they were asked to file
written arguments and imposed fine on them. Now they filed written arguments, copy of
which was sent to me. On a scrutiny it was found that what they sent is not the exact
copy of the arguments filed in the counter. NOW CAN I FILE COUNTER ARGUMENTS
SINCE THE WRITTEN ARGUMENTS CONTAINS SOME LIES AND DISTORTIONS.
AM I SUPPOSED TO FILE COUNTER ARGUMENTS. next date is in December.
Considered opinion of experts will help me a lot and I shall be much thankful.
TGK REDDI  22 June 2019

Filing of Written Arguments is mandatory. No question of Court's permission. Court's
permission, however, becomes necessary if any party desires to file revised Written
Arguments.
 Show more View All Comments :: 7
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11/22/2019 Tips on preparing Written Arguments

Home / Articles / Legal Documents

Tips on preparing Written Arguments

In short, an argument is a collection of statements. It should have a conclusion the

Oral arguments in hearing

Why this ad?

Submitting written arguments

A broad outline of written arguments

Arguments need to be concise and brief

Stress on key points

Structure of the arguments

Cite Supreme Court judgements first

Include contention of the other party

Keep the arguments short

Some general tips on how to write

Published in Legal Documents Other Articles by - K Rajasekharan

Download PDF - [Free]

Login to post comment

Chandresh K. Shah  05 November 2019

V.N.K. MENON  23 October 2019

TGK REDDI  22 June 2019

 Show more View All Comments :: 7

A few tips For Exam

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