The Predictable Path: Navigating the Court Action Process
Mastering the Art of the Succinct and Appealable (in your favour) Legal Position
Preparing for a court action, whether you're filing a petition, a motion, or an application, is actually a very predictable process. The rules of court provide clear guardrails or a very distinct path that you're supposed to follow. While surprises are possible, most of the time, there are none; the process is quite predictable. When you start reading through the rules of court as you prepare to file, you'll find that the process is the way by which the court can act. You are essentially making an application to the court to do something for you, and this application is accomplished through a predictable form. Understanding this predictable structure is the first step toward building an effective case.
The Court Document as a Formula
The court document—be it a notice of application, petition, or motion—acts as a formula. It's a basket that holds all the essential elements of your argument, relying on the facts, the law, and jurisprudence. While the title of the document might be slightly different depending on the jurisdiction, they all accomplish the same purpose.
Laying Out Your Case in Sequential Manner
The required form lays out in a sequential manner what you are seeking from the court. This document also requires you to state the authority you are moving under, such as the rules of court, statutory authority, case law, or precedent. All of this is laid out in the document that is the court action.
Components of the Court Action
In the court action, you must lay out your basic legal reasoning. This includes identifying who the parties are and, most critically, presenting the facts that actually matter for the judge to come to a conclusion. This focused approach helps you get your thought processes in place and prevents you from overwhelming the judge with superfluous details.
Identifying the "Turning Facts"
The facts that should matter are the ones by which the case turns on. These are the facts that, when answered in a positive or negative way, will cause the decision to go in your favor or against it. If a specific statute requires a fact to be established, that fact is a turning fact in the case. If you establish it as true, you win.
The Strategic Purpose of the Notice of Action
The notice of action allows you to gather the relevant facts and present them in a very succinct manner. This process helps to organize your thought process and your understanding of the law and the rules of court. It also forces you to decide whether you even want to move forward—if you don't have a very clear win from the document's layout, you may need to withdraw or change your strategy.
Exploratory Research and Prevailing Law
Part of this organized process allows you to do exploratory research into what the prevailing case law is, for or against your position in the matter. This research is vital as you decide whether to move forward.
Page Limitations and Practical Constraints
In many jurisdictions, you only have a limited amount of space, often around ten pages of writing. A page is usually taken up by the header and the style of cause, and the last half-page is filled up by the clerk's office for bureaucratic information. This means you typically only have about nine pages to lay out what you are asking the judge to do and what specific judgment or order you are seeking.
Convincing the Judge to Grant an Order
If you are asking the court to make a specific order, you must convince the judge of three things: that they have the jurisdiction to do it, that it is in the interest of the parties to do it, or that it is in the interest of justice to do it. You must provide every reason for the judge to find in your favor, according to your legal reasoning, to prevent them from finding reasons not to rule in your favor.
Creating an "Appealable Situation"
A key strategy is to create a position so strong, based on the facts, the law, and the precedents (jurisprudence), that if the judge rules against you, you have an appealable situation. The goal is to show the Court of Appeal that all the facts, law, and jurisprudence lined up in your favor, and for the judge to have ruled against you was an error in law or an error in fact.
The Strategy of Succinctness
The ultimate strategy is to create a slick, minimal document that contains everything you need to win without being verbose or overplaying your hand. You want to be as succinct as possible while thoroughly arguing your point. Sometimes, if space permits, you can argue against an alternative point, but you usually only have the space to argue your point in the affirmative.
Avoiding Superfluous Evidence
You must be careful not to overload the file with redundant, duplicate details. For example, if you need evidence to prove a single point, you may only need one witness, or perhaps two or three if it fortifies your position. Having the same fact sworn out by ten people is not really moving your position forward. Every time you file and serve a motion, it's a gamble. If you do not provide enough, you can lose; if you do too much or fill the file with superfluous details, the judge might get upset or lose the point, and you can still lose.
The Value of Experience
As you go through this process, with every experience in front of a judge—positive or negative—you learn something and gain confidence. Over time, this learning will make the process less intimidating. You will be able to express yourself succinctly and clearly to communicate effectively to the judge. The target audience for your document is always the judge. You are trying to convince them of your position so they will sign the orders you wish, and you are fortifying your position so that if they don't, you have created a highly appealable event. Ultimately, there is no substitute for experience in learning what is necessary and what to avoid.