42. The Overview

The OVERVIEW

(as viewed by Jim Raymond)

"Jim Raymond, an English professor at Alabama, is the head of the judgment-writing course for federally appointed judges in Canada. He is also the co-author of an excellent book on good legal writing called "Clear Understandings"1. The subject of Professor Raymond's lecture at our judgment writing school is: "The First Page Says It All". Whether you are writing a factum or a judicial opinion, Raymond recommends that you begin with an overview statement, which tells the reader what the case is about, who did what to whom, the issues and your position on them - all in no more than a page. Raymond's view reflects a fundamental principle of persuasive factum writing: put context before details. The principle of context before details is also an important theme in a superb book on good legal writing, Thinking Like a Writer: A Lawyer's Guide to Effective Writing and Editing, by Stephen Armstrong and Timothy Terrell.

The overview statement has been used for several years by all good counsel arguing criminal appeals in our court, even though it is not required by the criminal appeal rules. The criminal bar has simply adopted the overview statement as a technique of good written advocacy.

Effective January 4, 1999, the Rules Committee amended the factum rules for civil appeals to our court to require an overview statement in Part II of the appellant's factum and in Part I of the respondent's factum.

Although the overview statement is now mandatory, you need to know why it is important. The overview statement is important because it provides a road map for the rest of your factum. It gives the judge the context for your appeal, and with the context the judge can better absorb and understand the details to follow. I consider the overview statement the most important part of the factum.

I have these suggestions for writing effective overview statements:

(i) In the overview statement you must begin persuading the court of the rightness of your client's cause. Tell your story in human terms, that is, appeal to the human being in the judge. Forget the legal jargon. Pretend the judge is just your well-informed next door neighbour. Engage the judge, capture the essence of what the case is all about and communicate the justness of your position. In other words, solicit the judge's affection for your cause.

(ii) State the key issue or issues on which the appeal turns in your overview statement but be careful not to state the issue or issues too broadly. If you state an issue too broadly, then your factum will be too long because the amount of detail is tied to how narrowly or broadly you state the issue. Worse, we judges will not know what to look for, what facts are crucial and what facts are background. For example, if you are attacking a municipal by-law, stating the issue as the validity of the by-law is too broad. Better to say that the issue is whether the by-law is invalid because it was passed in bad faith.

(iii) The overview statement should contain just enough facts to give context to the key issue and to preview what is to come. Most counsel do not give enough facts in their overview statements. You should front-load but not overload your overview."

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Superior Court Case #10-49776 -

 The Overview

(by Jan Steen)

With a clear and final understanding, the Contract serves as written 'Proof of Fact' between 2, or more, parties. 'The Statement of Work' is an on-line Contract between a Web-developer and its Client. Above the signatories, it states to be legally binding. In case one of the parties upon the contract's due-date completion decides part, or all, of its factor items have not been complied with, or completed, that party may file a claim in a Court of Law, challenging the other party. During the due diligent process of the Court's format, according to the Rules of Civil Procedure, the validity of the claim will be determined. Or so one expects.

Created by the very most senior appointed Court Officials, these Rules are set in stone. They leave little room for subjectivity. In 2010 the Rules were further 'tightened.' An even greater specificity towards succinctness was applied. During the process of Discovery, the former "semblance of relevance" was shortened to "Relevance." The phrase "relating to any matter in issue" became: "relevant to any matter in issue."

It can be appreciated by this Claimant, whose original Claim for contractual non-compliance was filed in a British Columbia court, that 'the best Defense is a good Offense' (As the cliche goes). Defense, after consultation with Counsel, in self-interest, may well decide to evade the facts, since scrutiny may not favour that course  - i.e. to argue the facts as implemented by contract. By rendering persuasive rhetoric with the aid of available, effective ploys, such as the filing of a Motion to dismiss, including hints the Respondent Claimant is half dead old, recalcitrant, irrational, vexatious, emotionally involved, lives in a distant province, on an Island to boot, and has a frivolous claim - an over-worked Court Official together with the Jurisdictional physical Presence of Defense, may, in time, begin to show certain positive enhancements. 

So indeed finds this Jurisdictional distant Respondent/ Claimant has become the case. After some 2 years dilly-dallying, the matters at issue, i.e. the original claim, have yet to be addressed. And, AYE, here lies the rub. Defense has cleverly managed to avoid the issues at hand; what, under the Rules should be relevant, and addressed, as 'product liability', by clever slight of chess, in full view and acceptance by the Court, has become the rhetoric of a case law's stretched IR-relevance! Much costly court time has been taken up, with no regulation or adherence to the Rules in sight. 

I have come to the conclusion legal procedure is not about justice. It is about best using the tools of persuasion and amenities at hand to gain the upper hand. Statistics state that only some 5% of all claims manage to reach Trial. By knowingly obstructing the implementation of the Rules as set out in the Rules of Civil Procedure, this Plaintiff's continued abidance by the Master's orders, would have shown flagrant disrespect for the Rules. 

The last 'Long Motion,' with new Defense Counsel in tow, requested continuing demands for more IR-relevant answers (in this Respondent's view). New, old questions were re-entered. Again "In the circumstances," all were ordered relevant by the Master. The respondent still awaits explanation of "In the circumstances." The Master's Endorsement had set out grave conditions for the Respondent/ Plaintiff. Non-compliance would lead to the case dismissal. With this, in fact, Defense would have at long last achieved their objective. Although this is clearly clever Defense, as I see it, it does not reflect well on our Courts of Justice, and its ultimate bottom line: The Rules of Civil Procedure. There is a self-defined, 'je ne sais quoi," bitter irony to this matter. "Civil Procedure" indeed!

The Judicial Oath of Office states: 

                      "I, ______________, swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ______________, and will do right to all manner of people, after the laws and usages of this province, without fear or favour, affection or ill-will; so help me God.".

Thus I concluded I could no longer comply with what I decided to be a blatant obstruction of both Oath and Rules. As such, with my conscience clear, but acknowledged sheer attrition by exhaustion, I was willing to surrender this chapter. In the War of legal chess, I now proceed with my next move: A Divisional Court's Appeal, as well as an application for a Judicial Revue.

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This too shall pass...