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Written and recorded by Alastair Hodge
Hello. My name is Alice the Heart. And can I welcome you to this data law? Webinar on argument advocacy In the modern world, argument advocacy has taken on a totally different meaning. Yes, there are probably many advocates out there who can cross, examine, examining chief and re examine a witness. But one of the core fundamentals of advocacy is often for gotten that off the presentation off what is, in effect, an argument to a court or a tribunal. During the course of the next 30 minutes or so, I'm gonna be taking you on a journey on putting together the various component parts which go into making up an effective argument on thereby creating, if you like the perfect submission for a court or tribunal. Now, these skills are transferrable across all disciplines. What I mean by argument advocacy is, of course, the presentation off an argument to a court or tribunal. Whether that is an application for summary judgment, whether it is arguing for the exclusion of a piece of evidence on a watt deer in a criminal trial, or indeed, whether it's anything to do with appellate advocacy or any form of application that you may make the skills involved for the advocate are the same regardless off the exercise. What am I hoping to achieve today? Well, I'm really gonna break the webinar down into three parts. Firstly, I'm gonna look at what I mean by the argument. What is an argument? What goes into making a good argument, Then in the second part, we're actually going to look at how you prepare that argument. And I'm gonna give you a suggested approach to preparing that argument on once the argument is prepared. Once you have the materials to be able to present it, we'll look at the structure of the argument, how best to put it together in terms of what to tell the judge and when on then finally a little bit on the presentation of that argument. When you actually get into court off course, it's not for me to teach you a particular style of advocacy that goes back to if you've seen any of my previous whether now she will know that one of the second modern rules of advocacy is being true to yourself. I'm Therefore you can find your own style your own way of presenting the argument as long as you have the fundamentals. So let's start in the beginning. What is, in fact, an argument will. Any argument that you make to a court should really be, I suppose. Summarised as this. It is a Siri's off structured propositions. Those propositions are supported by reasons on those reasons will seek to persuade your tribunal as to your point of fact or your point of law towards your desired and go on. That really in summary, is what the argument is. How does the argument work together in practice? Will, of course, any argument you make, whether it's an application or a closing submission at the end of a trial needs to be based on evidence. It must also be based on legal principle. Andi, In so doing that theory that you put forward that argument that you present must be consistent with your analysis of the case. If you like your case theory on, indeed, consistent with the onus of proof depending how that falls in a particular case, As I've said already, general principles off effective argument, which is which are what I'm gonna deal within this webinar applied to, no matter what the argument you are presenting. This could be an interim application. It could be an argument about evidentiary issues in a trial. It could be a final speech. It could be an appellate argument. The principles, ladies and gentlemen, uh, the same. So what are the three types of argument? I suppose that one comes across most in practice. Well, firstly, on this is mainly for appellate advocacy or certain jurisdictions where matters of fact don't really come into play. That is where the argument is one off pure law. That is where you are seeking to persuade your court or tribunal off a particular interpretation of statute. It may be the applicability of certain case law. It may be some other legal principle or authority, but your argument is presented as purely one off law. Flip that on its head. You may have cases where the argument that you are putting forward is purely one off fact on again. One would find this mostly in submission, advocacy or speech advocacy in criminal cases, because what you are persuading the jury to do, or persuading a lay bench of Magistrates to do is to find factually in favor off your state of affairs for which you are contending on that, of course, is transferrable to other jurisdictions. You might be making factual arguments about the credibility off certain witnesses on then, of course, in terms of trial at because he probably the most common in my field of employment or one tends to find that this is the general form off a closing submission in a case in that it is a combination off both the first element and the second element. That is to say, you are making arguments about fact and what happened because you need to get those factual findings in order to win your case on Once you have succeeded in getting those factual findings, you then move on to the law. You then move on to the application of the laws of that factual scenario to get the desired end result. What, therefore, is the key to an effective argument? Well, I can sum it up in one word on this takes me back to the days when I learned advocacy under the the Great teachings off. She is now on a judge Joanna Corner on his honor, Judge Anthony Lend the key to any effective argument is persuasion. You must acquire the knack off persuasion because a persuasive argument is one that is more likely to be accepted by a court or tribunal, if I may, Can I quote from Justice A. F. Mason writing in 1984 in his book The Role of Council in Appellate Advocacy on Justice Basin said this on I apologize that my eyes will go slightly above the screen to my prompter because I haven't learned it off by heart. But Justice Basin said this to off council. Forget that advocacy is an exercise in persuasion rather than a defense or a statement. Off position Persuasion calls for not only a mastery of the materials but also for an element off, constructive imagination and boldness off approach, thereby bringing in. I suppose some of the things that many of us advocates would have learned in our junior dates about the effectiveness in our duties to the court on that we must pursue our client's interest with everything that we have. So how do we get a persuasive argument? Will. The easiest thing to do is to actually go long back long before my time and go way, way back in history to the writings of Aristotle on Aristotle, as you, some of you will know, wrote a very detailed text entitled Rhetoric on What Aristotle says in his work. Rhetoric is still most valid for us today. In terms off the construction of an argument for a court, Aristotle said that a persuasive argument should contain three things. Firstly, logos. That is, if you like logic, and I'll come to each of these components in more detail in a moment. Locals logic. Secondly, e thoughts or credibility on Thirdly, PAPELES empathy. And if any argument you make contains these three components, it will be an effective argument. So let's add a little bit of flesh to the bone off those. What about locals? Well, a persuasive argument should be logical in its reasoning. Andi structure it must be The various parts of the argument must cohere. There must be like a gearbox of synchro mash in order for the logic of the argument to be put to be conveyed to the court. This requires carrying out a process in your minds as the advocate off logical reasoning, that is to say, what are the logical strengths off your case, but flipping it on its head. Of course, what are also the logical weaknesses off your opponents? Case on? For those of us who have been around the block on advocacy circles, you will know that very often it may be the case of finding logical weaknesses in your own gets, because it may be in certain cases that you have very little to work with. In other words, the argument that you make should lead logically to the ultimate conclusion for which you contend. In other words, it's the because test, it's the white test. Not in a case saying, well, standing up and making a submission and saying, Well, in my submission, Your Honor, you should prefer the evidence of Mr Hodge to that of Mr Turner. Well, that is your submission. That is your argument. Yes, you want the judge to find that. But what is the what about the why I remember the why as to why the judge should actually find that on. There may, of course, be a particularly valid reason for that. Justice and Ainsley Wallets, who is a fellow venture off the temple, gave a lecture earlier in 2016 and made the most wonderful comment about what I would call the the antithesis off the good argument. And that is she referred to it as the Christopher Columbus submission Christopher Columbus call set out from Portugal or Spain or wherever it is he wants. And he went often discovered America. But think of the Christopher Columbus submission as the antithesis off the logical submission. Number one. When Columbus left, he had not the slightest idea where he was going. Number two. When he got there, he had not the slightest idea where he wants. On three, When he got back, he had not the slightest idea off where he had been on. That is the antithesis off the logical argument, because the logical argument will give the roadmap or in Columbus is case the see chart to show you where the argument is going. Of course, a logical argument is supported by the evidence you will need to intermingle the evidence into your argument, and that really come brings in the why Why should the judge prefer the evidence of Mr Turner? Oh, because off the chunk of cross examination that I performed at 11:37 a.m. when I put it to him on, he agreed that he had misled the court in his witness statement or whatever. It may be the structure. It is also important, as I've said, that Christopher Columbus antithesis structure means that the judge will never know where you're going. If you if you if you like, begin by giving the judge the roadmap, tell the judge what you're gonna tell them, tell them and then tell you what we've told them. That at least gives them the direction in which your argument is going and it will make it more attractive. It will make it more persuasive, however, if you simply begin with a statement of facts like John said. This and Mary said that. And Peter said this without any context to those statements without any conclusions to those statements, then the decision maker, I judge Will will not be following the argument. The benefits off the tell you to tell the judge what you're gonna tell them. Tell them and then tell you what you told them. The advantage of that structure is really fourfold. Number one. It's easy to understand that it is very easy for the decision maker to follow that particular argument. Secondly, it enables the judge to evaluate the supporting propositions when the conclusion is first stated. In other words, like case preparation, it's going to your end goal and working backwards. It also, and I know some of you will be scared of this and don't be. I mean, it's brilliant because beware the silent judge. You don't want the judge that simply sits there and speaks to you and says Very, very little. You want to encourage a conversation with the judge you want you want to engage with the judge on using this particular structure will enable you as the advocate to develop the argument for so much for logos, everything being logical. Let's move on to the thoughts now. Ethos refers to credibility. It's about correctness in light of human experience on knowledge, but not necessarily logical, because the two, if you like handed hat it is twofold. It is the credibility of the argument that you're presenting on the credibility of the person presenting the argument to that degree. In some jurisdictions, it may become quite a bit about reputation and character. In order for the argument to be credible it must be realistic and balanced. You know it can't be something far fetched. You can't sort of say that a particular collision was caused because a bus driver was distracted because there were two pigeons making love on top of a postbox 20 yards away. When there is no evidence of that on, if there is no evidence of that and it's a totally off the wall submission, it doesn't work. It lacks credibility. It lacks the thoughts. It has to also be consistent with human understanding and the way the human mind works. Because remember that judges are human. It must also be sensible. So, in other words, it whilst it needs to be attractive and will come to attractive ITI in a moment you can't push the boundaries too far on that. Just a few points, if I may, on the arguer the credible are cuma off course you Are you to be trusted by the decision making you need to have their confidence on. This entails general good court behavior, being respectful in dealing with your court and in dealing with your opponent. If the court is able to trust you, then great argument will be more, the other will become more persuasive to the decision maker. The common things that I see in court, which, if you like, destroy the credibility of the arguer, I could state them very quickly. Number one, of course, is key. Is lack of preparation where an advocate misstates the evidence or the law? If it has a lack of cohesive structure of The Advocate is overstating the argument if it's unbalanced, if it's unrealistic, or simply just pursuing totally unsupportable on unsustainable arguments will mean that the decision maker loses trust in you as the arguer off the government. Let me turn now to the third component of Aristotle's argument, that of path ALS. This is slightly will yer to describe, but nonetheless for still off significant importance. A persuasive argument must be empathetic, not sympathy it. So in some cases in jury Charles, you want sympathy, but it must be empathetic. It must involve you as the advocate making a serious connection and a realistic connection with the thinking. Andi, feeling off your judge whether that be a crime called judge, a high court judge, district judge or whatever on this regards. This requires a degree of sensitivity and tact on your part. You still have to commit to the argument, and you still have to show the passion for it. But don't obviously egg the pudding over egged. Putting tact is a wonderful thing for those of you who have seen having youngest 10 Commandments of Cross examination. You will note that there is a section in there where he talks about the effective argument to the jury that it must have a degree of tact, and he uses the example of a man who is on a murder charge on. He is running an insanity defense on the defense. Call the defendant's mother to give evidence at the trial, and Irving touches a little bit on the cross examination of the mother and how you would cross examined cross examined. But what he does, he jumps to the to the end result. When you're standing in front of the jury closing the case, what are you going to say to the jury about the mother who comes along? T give evidence in support of her son's insanity effects? You look at the jury and say she's a liar. No caution, all because that lacks tact. That lack sensitivity on the more persuasive argument will be the one that has that degree of sensitivity and tact on deserving goes young on to say, What does that advocate do in that situation? Well, he simply looks at the jury and said, Well, ladies and gentlemen, she's his mother. What? What else do you expect the mother to say in support of Assad? And you leave it at that? It doesn't need any more than that. The point is well made on deserving concludes. Which is rather amusing, he says to his audience. And what's the first thing the jury going to say about the mother when they go into their retirement? She's alive and she is misleading the court or whatever. It may be eso you need to have that degree off a passion. So putting all those points together, it's gonna be logical it's gonna have credibility on. Of course, I can't give you the right argument for every single case. I can't give you a cookbook of recipes for every single case you do in not every case will you find the best argument, but you do what you can with the material that you have got available, but the basis of the argument itself. Now we know about our structure, and our romance comes back to one word. And this word has been emphasised in recent times by again a fellow venture of mine at the inner Temple. The great Professor Sir George. Professor George Hampel QC. Now George at the moment is emphasizing the need in argument advocacy to deal with the concept of what he calls privacy. Now buy privacy. What we mean is nothing to do with the top of the food chain or anything like that. What George means is putting the most effective argument. You have the best argument that you have. First, it is starting with something in your submission that will engage the listeners attention straight away on it will also engage the listeners interest straight away on this really is. It's all about positivity. It's all about finding. And again I know there will be cases you do where it is difficult to find that point of primacy because maybe along the points are going to be against. But they'll be something there be something you can graveled that gives you a starting point that gives you a strength to begin with that will actually attract the listeners here. Be positive with it. Run with it. Be confident with it. Try at all times. Teoh again. The primacy argument will focus your mind on this. Don't try and avoid. Don't try and just simply repeat your opponent's argument to deal with it that gets, you know where you need this degree of positivity. You need a a positive point that you can make to the judge off course within that I don't demean this in any way. In certain cases, you will have to deal with the weaknesses in your own case on you. Deal with those to the best of your ability, with the materials that you have without inventing evidence and without doing arguments that lack any form off credibility. So we've got the argument. We've got the structure of the argument. We know what we're gonna go. How do we do it? How are we going to stand there and actually present? Well, a few tips from me. We've got our progressive structure again. It's that road map. It's that see charters, telling the judge what you're gonna tell them telling them and then telling them what you've told them on that opening section is very important, and it's very important because you can do it almost in in bullet point fashion, Your Honor. There are three reasons why the claimant should be successful in this case. 123 and then add the flesh to the bone. Then add the detail to each of the points that you made by weaving in the evidence, and then concluded one thing that I see quite off advocates who do not treat their tribunal or court as a first time listening. Yes, in certain cases, it will be true that after having heard all the evidence that the judge will almost have the same degree of knowledge on awareness of the case, as you do as the advocate, the very often judges won't you have to remember sometimes that judges will have an exceedingly long list of cases they may not have had on amount of time to read the material in the same depth as you have read the material so at every stage of your submission, unless you get the indication from the judge. Mr Hodge, I've read the pleadings. I've read the witness statements. I read your application notice. I've read your skeleton. Can you just take me to your main points when you get that indication from a judge than you're home and dry? Because you know that the judge has read everything. But if you But if on until you get that indication from a judge, always treat your judge as a first time listener that they are coming to this with fresh eyes on at the end of the day, you still know more about that case at this point than the judgments. Obviously, there will be complex arguments that you will have to make. Try if you can, to reduce those difficult factual arguments in those difficult legal arguments to very simple propositions that takes experience that takes time on. There is no easy way to do it. What I often think about in terms of this simplicity is to actually on. You wouldn't obviously sit with the judge with a pint of Harvey's best bitter, but very often you can acquire a degree of simplicity is an advocate by using a technique off telling a friend down the pop or a wine bar, or wherever you may be about a particular case because the person you're in the public probably isn't a lawyer, and they don't understand the law. They don't understand how the process works on. Therefore you have to. When you're explaining you're argument to them, you have to reduce it to its most simplest so that they will understand the argument that you are making reiterating something I've already said. Of course, you state your argument and then you sort of bring in the reasoning that support or whether that be legal reasoning or factual Recent Again, I restate in terms of the presentation. Be open to your judge. Listen to what the judge asked you. I'm often asked on. This is an important point. I'm often asked. Well, what happens if a judge decides in the middle of your beautifully flowing submissions to interrupt you on toe, ask you a question to which you do not know the answer? Well, firstly, two things two things will happen. Number one, you're standing there in court and you will freeze. It's happened to us all. I've been there. You stand there and you sort of almost of Mr be next, although not quite Mr Being you stand there and you go on inwardly, everything is checked because the judges raise something off the top of your head. You simply do not know the answer to that particular question. What do you do? Well, the first thing you do is you don't pack. Easy to say, far less easy to do. But the second thing you do is you say to the judge, My lord, may I have a moment now? Buy a moment. I don't mean 10 minutes. I don't mean in a German. What? I mean, here is between 10 and 20 seconds thinking time because it may well be. And in my experience, in 90% of occasions when this happens, if I don't instantly know the answer to a question off the top of my head, a short bit of reflection, a short bit of thinking time, I will be able to answer the judge's questions. If after 20 seconds you are still none the wiser, then it's better. Ladies and gentlemen, to be cut to come clean on Just saying, My lord, I'm afraid I might able to assist you further on that point on that, if you like, is code between advocate and judge that I don't know. I can't help you any further on it. And you move on to the next point. Lord Justice Laws gave a talk many years ago, the inner temple and he he raised what one thing which I always love to throw in here on Lord Justice Law says in terms of a palace was appellate advocacy. But if But if he raised something with an advocate, he would absolutely love it where the advocates said, My lord, I'm gonna deal with that later Now Muster Laws was not keen on this particular turn of phrase for two reasons. As he pointed out, Number one is the advocate. You don't want to be there later. You want to be back in chambers away from the rough off the court of appeal. And secondly, as Lord Justice Law said, Hey doesn't want to be there later. The reason he's asking the question there and then it's quite simple. He wants to know what the answer. It's so always ask what always answer questions, if you can. When asked, Avoid, of course. And I said I wasn't gonna teach your style, but avoid ation of lecturing or rhetorical style on that will get you nowhere. It can show a degree of arrogance, and maybe such things are reserved for the more senior advocates. But try always to remain measured. Pace and timing are important as well. You cannot deliver your submissions to quickly. One of the techniques that I use with junior advocates in an attempt to slow them down to make them deliver more slowly is twofold. Firstly, imagine that your judge or tribunal who are sitting ahead of you imagine that they are in their mid to late eighties. Sometimes it's very difficult to do if you got young judges. It's very difficult to imagine them with silver hair and wrinkles and all that sort of thing on the other thing to do. Combining it with that is to imagine that the tribunal or your judge is slightly hard of hearing. Now. I considered look at my screen there and I can chat away and no imagining that somebody is 80 or slightly hard of hearing. But if I do, if I go to my grandfather's care home in Beautiful In Purchase, where he's residing for seven years, great man, my grandfather, 98 years old now 99. Next year, third looking forward to the celebrations. But when I speak to him, I slow down and I very my pace accordingly, and I make I take care to enunciate every syllable. I take care not to speak too quickly and with a bit of luck using that pace. Imagining on octogenarian who was slightly hard of hearing the submission comes out in a measured way. Of course. Don't take this to its extreme because sometimes, and I've seen advocates do this, it becomes what's known as the care home routine. Hello. How are we feeling today? No, you don't want that because the judge will sit there and go. Mr Hodge, what's wrong? Because that's what judges will do if you go too far in terms of authorities of your referring to legal principle, obviously, state principles for what the case stands, rather than reading chunks of a judgment. If you are going to cite passages from a judgment, try and be as concise as you possibly can actually find the rial words that matter to your case, Uh, on that will stand you in good stead when dealing with authorities. So there we are that really? In a nutshell is are the rudiments off arguments? Advocacy? Let me therefore closed by giving you a quick checklist, things that you can do in your daily lives that will improve your your argument. Advocacy. Remember, apply logos, ethos and pathos. If you can get a bit of logos, ethos and pathos into every submission, you make so much the better, and you will grow as an advocate, you will be nurtured. You'll germinated. Receive on you will blossom into the great flower that you see before you on the screen today. Structure your argument. Don't just repeat your opposing argument. Get the structure together so it gives the judge the roadmap. Apply the principle of primacy. Remember, primacy is key. Get the strong point out first that will attract the listeners attention. Always keep an eye on your judge very apace. Listen to the judge. Respond to questions and use a conversational style. It's an engagement between you and the judge. Be tactful. Remember what I said about tact? Very often. The most effective argument advocacy eyes tactful on obviously speak at a pace at which the judge will either to be able to take a note or be able to follow the argument that you are making. If you go too fast, then obviously the judge may miss key points that you always she to make. Ladies, gentlemen, I hope you've enjoyed the last half hour or so. I wish you well in your advocacy careers. And I look forward to speaking to you against
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Written and recorded by Alastair Hodge
Hello. My name is almost the heart. And can I welcome you to the first in a series of four webinars in connection with the data Log course on high rights of audience qualification? The first webinar is going to be dealing with a case preparation in case analysis, because without the fundamentals, the building blocks. I personally don't think you can be on effective advocate on what you'll see throughout the course of this. Webinar is how those fundamentals fit into each other, how they relate to each other, Onda. As part of it, I'll be giving you a suggested approach to preparing each case that you have to undertake whether it's part of this course or indeed part off the larger world. So what I'm gonna do, firstly, is deal with a little bit of history of advocacy training on sketching a bit of background on. Then I'm gonna move on to that preparatory process which will lead us to the formulation of a case theory for the purposes of preparing a case on, then a bit on performance preparation. So, firstly, I mentioned a little bit of history. Let's go back in time if you go back to the 19 fifties or the 19 sixties, it was thought that advocacy as a skill could not be taught. It was something that advocates learned on the job. You went in front of a judge and you were beaten to death or your limbs were severed and there was blood all over the walls. Those were the old days, But in the 19 sixties, there was a seed change in two jurisdictions in particular firstly, in America, there was a gentleman who had served as a judge on the New York bench for many years by the name of Irving Younger Irving Younger gave up being a judge, his rationale being that he had seen far too much bad advocacy over the years. On that he was determined to set the record straight. He therefore set up the National Institute of Trial Advocacy, or Nita, as it is known back in the 19 sixties. At the same time, there was a sea change in the Australian jurisdiction. Professor George Hampel, Queen's counsel who is still alive today on Indeed, I've had the privilege of teaching with George on a number of occasions. He led the way for modern advocacy training. But in this country, in our jurisdiction, it wasn't really until the 19 nineties that it was appreciated that advocacy as a skill could actually be taught and come back with me to 1997 on when? When Anthony Leonard Queen's counsel is he, then Waas now Judge Anthony Leonard QC sitting at Southern Crown Cordon on about to go to the old Bailey gave a lecture on advocacy training on Anthony Nicking. If you like Tony Blair's famous speech from 1997 when he became prime minister, he said, Education, education, education, setting out the three priorities off the new Labour government off 1997. Well, Anthony Leonard took this speech. Not that I think he's a lover of Mr Blair in any shape or form on Turned it into the three rules off advocacy on the Three Rules of advocacy are these Number one is preparation number two is preparation on number three is preparation. Ladies and gentlemen, I have taught advocacy all over the world, and I am totally persuaded that Anthony Leonard is correct. In this, I could take a group of amoeba from Saturn with absolutely no knowledge of our judicial system. No knowledge of our way of that litigation works on giving them a means of preparation and teaching them how to prepare a case. I could make them effective advocates. But even since the 19 nineties, things have now moved on and changed on. Can I commend to you please by way of the foundation's what I consider to be the six modern rules off advocacy? The first, of course, remains preparation. It is the cornerstone. It is the foundation upon which all good advocacy is built. And I will be returning to the concept of preparation a little bit later on in this section. The second rule of advocacy is be true to your personal brand. Now, what do I mean by that? Well, what I mean is is that if if we were to grab it clipboard, you know these people you see in the streets who have clipboards on they come up and they ask you questions and they all sound like Mr Bean. Well, they would probably come up to you. You got to somebody with a clipboard, and you say to them the word advocate on Ask them to say what the first thing that comes into their head is on. They would probably describe stereotypically a man wearing a gown, maybe a funny wig and a set of bands on. That's the stereotypical view of the person that you see on the street on. They would describe that individual maybe with a bit of a few teeth sticking out the front. Yeah, good morning, my Lord. How's your lordship? Today's sale. Nice to see your Lord again. At May I say this is my application for summary judgment, blah, blah, blah because that is the stare equipped, stereotypical view off what a member of the public would see as the Advocate. Why? Because that is what the members of the public see on the television. But for those of us who practice advocacy, for those of us who do it day in, day out, that is quite far from being the reality of the situation. Okay, yes, there are advocates who are like that because they have been educated at very favorable establishments. They've been born with a golden or platinum spoon in their mouth. Be that as it may. But the reality is that if every advocate were that stereotypical advocate, that the man or woman in the street perceives. Then judges would get bored. It would be like having a sea of clones in front of each judge. On every single case, everyone would be the same on. For those of you with the knowledge of Star Wars, you would know it would be like Episode two Attack of the Clones when Django Fed builds the clone army. So you've all got your own backgrounds. You've all got your own personalities. You've all got your life own life experiences. Bring yourselves to the party. Don't ever feel the need is an advocate to be something that you are not. Two reasons for that one. You might forget who you are unless you are totally schizophrenic like me and can become other people. But secondly and most importantly, judges. And I suppose although we're not dealing here with criminal and because C Juries, judges and Juries will see through, there will be a falsity that manifests itself through your advocacy on you will lose a degree of credibility with your tribunal. So be yourselves. Bring yourselves that party on. Your advocacy will flourish. The third modern rule of advocacy is keep it simple. I wish I had a pound or maybe even £5. For every time I've seen advocates in court who seemed to lack the degree of simplicity that is required in order to be an effective advocate. Because you can watch some of the Great Queen's counsel some of the great advocates from history, you will see them use plain and simple language when they cross examine their using plain and simple language and very short questions on the danger. And you see it within experienced advocates is they think, Well, I'm an advocate now. I need to be flowery. I need to use complex sentence structure. I need to use complex language. Well, it doesn't work like that, and it never will work like that because the most effective advocacy is the simplest. In my view, this is probably the rule that is most contravened amongst inexperienced advocates on. I'm sure that when you get down yourselves to doing some of the advocacy exercises on the course, you too, will fall foul off this particular rule, Rule number four is that every case you do will be won or lost on its own facts. Some of you out there may be brilliant lawyers. You may have a mastery off legal principle. You may be able to cite Lord Atkin. It laid from Ben and Lever Brothers in 1932 on the doctrine of mistake in the Law of Contract. A doctrine I should say with which I am still Aziz, yet unfair milieu and unconvinced having when studying at the university had not the slightest idea what the doctor meant in any shape or form. But that's a side issue but don't become over consumed as the advocate with the law. Why? Because the law, as it exists, only comes in a latter stage on. We'll see during the preparatory process that I'm going to suggest you how the law comes in at a later stage of the process you must as an advocate, whether it's an application, whether it is a trial of fast track trial, a multi track trial, it does not matter. But you, as the advocate must must every single fact that there is in a particular case because only if you win the case on the facts, will you then go on to have a chance of winning it on the law on. In most cases, there is always going to be a dispute of fact, and you'll see, as I say, how my case preparation process allows you to master those facts before you apply the law. Part of the fifth rule is stick to your case theory. I'll come onto what I mean by case theory a little bit later on in the preparatory process. But once you've analyzed case, once you've got your theory of the case. Once you know what your angle is to win an application or to win a particular case, you stick to it on DNA. Nothing will deviate you from it. That is your end goal. You work the way you work your way back. To find the information you need to get to that end. Goal on. Nothing will distract you. You don't put in any ancillary arguments or any supplementary material. You must be meticulous in your preparation that will lead you to the case theory. And once you've got it, you stick to it on the final rule that I would commend to you is this. Write it out. That's the six rule of advocacy. I'm not expecting advocates with little or limited experience to what I would call fly from day one. There is no point in asking you to do that. So if you are having to deliver a closing address to a judge, a closing submission in the Civil case, by all means, write it out. But, of course, don't read it, because if you read it, you put a barrier between you and the judge. Up comes the page. You're simply reading from the written page, have it written out. But, of course, have it up here so that you're able to have eye contact with the judge and develop a conversational style on day wrap. Or with that particular a judge. The classic example of this from recent times will be a criminal case. Was the current chairman of In a temple advocacy training, Tracy ailing? She was defending a case last year in Darby Crown Court. On. If you walked into that Crown Court in Darby and watch Tracy deliver her closing speech to the jury, you would have seen on her lectern a file of paper on that would have been her closing speech to the jury written out of the beta. Did she ever use it? Did she ever referred to it? No, of course you didn't because she's an advocate because it's up here. But never be afraid of writing it out, whether it's a speech and application or indeed a piece off witness handling, because when you cross examine or examining chief a witness, you want to have some notes to make sure that you are. You know where you're going. So those are the six modern rules of advocacy. You will break them all. I can guarantee it throughout your advocacy lives. You will remember this. It will come to the point where you are doing a piece of advocacy and you remember the six rules of advocacy and you break one of them on two things will happen. Number one, you'll think, Oh my God, I've broken one of rules of advocacy. And secondly, because we're all friends is quite good. You will remember me, the madmen, looking at you through a camera lens, saying, Follow these rules off. I now want to move on to the second stage of this thing, this case preparation case analysis section to actually think about how we go about preparing a case Now, when I talk about case preparation, I am not talking about the moment in time where a client walks in the door off a firm of solicitors. This is not the time for taking a proof of evidence. This is where we focus on you as the advocate preparing a case for a trial. So we go from the assumption that there are statements of case. There is a set of particulars of claims defense. There may be a counterclaim. There may be a reply and defence to counterclaim. Following that, we also go from the standpoint that there is a bundle of documents. Most civil cases will always have a bundle of documents which forms the evidence in a particular case. And thirdly, I suppose to add this in the bundle is paginated and there are witness statements from each witness will be giving evidence in the case. When I was teaching in Malaysia in 2000 and 12 what one of the exercises that we did with the young Malaysian advocates was to do a brainstorming exercise. Now this is one of these modern hip and trendy things that people do to sort of get ideas up on a flip chart. I've never been keen on this tool. It's quite modern, It's quite trendy, and that just simply isn't me. But some of the things that the Malaysian advocates came out within this exercise were as follows that a good advocate has to have a knowledge of the facts. They have to have a knowledge of the law. They need to be well prepared. They need to be convincing, persuasive. They need to have a structured case. They use language in an appropriate way. They need eye contact, and they need passion on the flight on the way back from Malaysia, this was back in September 2012. I actually did a bit of thinking, and I looked at my notes from what the Malaysian advocates had come up with, and I made a list of all these things that we had in the brainstorming session and without actually thinking about it without actually setting out to achieve a particular goal. What those Malaysian advocates have done is actually, by rearranging the sort of things I've spoken about, they had actually created the proper approach to case preparation on that approach really is in four stages firstly, a knowledge off the facts, which is also known as Familiarize Asian. Secondly, case analysis. Which is, if you like, in basic terms, applying the law to the facts of a particular case, as well as in a civil case, the content off the pleadings. And I'll come back to these concepts in a bit more detail shortly. Once you've carried out your case analysis that will then lead you to your case. Theory your rationale as to why you should win the cakes. Why is it that a particular application should be granted in your favor or on the opposite side of the coin? Why is it that a particular application being made by the other side should be dismissed the final stage? So we've got knowledge of facts, case analysis leading to case theory. That's the third issue. The fourth issue is performance preparation on that, I suppose, is at the main focus off our time together as part of this higher writes audience. Of course, preparing you as the advocate to give that performance in court. Let's now look at each of those four components in a little bit more detail. The first aspect of the process is knowledge of facts or Familiarization on How do we as lawyers acquire a knowledge off the facts of a particular case? Well, it's quite simple. We use our eyes, we read, and we read What is there to be read in terms of the pleadings on in terms off the witness statements and any documents in the bundle that are referred to in those witness statements on when you go through this particular process of acquiring your knowledge of the facts? Can I commend to you the preparation of a document beginning with the letter C? The document to which I'm referring is, of course, a chronology. But this chronology to which I'm referring maybe slightly different, tow any chronology that you have ever prepared in the past, because the reality is is that it will end up looking like a trial bundle index off course. In some cases, it may. Your chronology may be very short. In other cases, it may be exceedingly long on that chronology should contain each and every factual element or factual event that you are able to discern from those papers on. As I say, it may be somewhat complex. It may well be on a particular date. 10 02 AM email from Alison two. John 10 04 AM Reply from John to Alistair. But you have to go through the papers and the evidence in a case in that much detail. Two reasons. One and it's slightly Donald Rumsfeld. Ian, you need to know everything because only when you know everything there is to know. Do you know when you don't need to know? I think yes, on The second reason, of course, is very often because solicitors barristers who prepare cases at the preliminary stage when putting together witness statements of bundles. No lawyer is totally infallible. Why do I say that? Because very often, if you're going through it in this type of meticulous detail, you will see things that are missing. You might very well read a letter that says further to your letter of the 10th of January. And you think, Well, hang on a moment. I haven't seen a letter of the 10th of January and my bundle Get onto the client, get a hold of a copy of it. It may well be important, so you need to know everything and this chronology may be, as I say, it may be vast. I get a cases in Leicester Employment Tribunal A few years ago on my chronology at this initial stage of the preparatory process ran to some 817 pages. Now that is not a short chronology, but there was a lot of stuff in in that case that had to be analyzed in the world factual events, the of which I needed to know. When you get to the end of this process, when you've read every document in the bundle, maybe a first or second time, you've analyzed what is missing. What do you do when you hit the button? Mutt save and you say that chronology to your hard disk or your floppy disk or your blueberry or your strawberry or whatever it may be or your flash drive. If you're using a Mac posh, people use Max on you. Save it because that will be your working chronology. And, of course, it can cross refer to the paginated bundles so that you can find bits of evidence relatively easy. Only when you have completed that stage do you move to the second stage of the process which is the case analysis on. As I said earlier, This is where you apply both the law on the content of the pleadings to the facts of the case. Why is that important? Well, for a start, think of the law. Let's deal with the law first. The law in terms of litigation very often assists us because law in base terms is quite formulaic. If you like, take an example of a negligence case. The first thing you have to claim it has to establish in a negligence case. Is the existence off a duty of care? The second thing is that what is the standard of that care very often forgot the standard of care. The third thing that has to be established, of course, is the breach on then causation and then remoteness and then defenses if applicable. So if you like, it's like a Siris of hurdles over which a grand national runner will jump in order to succeed on win the race or in in our purposes, the case concerned equally, applying the pleadings to a case you will narrow the issues that exist between the parson's because obviously the particulars of claim will have set out in some detail what the claim is about. On in the defense there were a member of defendant can do one of three things in any defense. They can admit a particular paragraph of the particulars of claim they can not admit, which will put the claimant to prove. It's just that they have no knowledge to be able to say yea or nay on. Then the third aspect of it. Of course, a defendant can deny that a particular event took place there by putting the claimant again to proof off that and where you've got where you got admissions by a defendant in a defensive calls, if a particular fact or event or whatever is admitted, then you don't need to worry about it because it's not an issue between the parties. So when you apply the content of the pleadings to the massive factual scenario that you've identified at Stage one of the preparatory process on you, then applied the law because in in a most negligence cases, the thing existence over a duty of care is not gonna be in dispute. The standard of care is really gonna be in dispute, probably what is most likely to be in dispute between the parties is the question of whether there was a breach of that duty of care on whether there was causation. Once you've done this process of analysis by applying the law by applying the pleadings to particular case, the eggs durable thing that will happen to your chronology is the little gets more because many of the factual things that you have identified will actually be irrelevant to the issues in the case. On your chronology becomes shorter, it becomes a working document. When you get that shiny, beautiful chronology that amended chronology on your computer screen. Remember to hit the button marked Save as on to Save it is chronology number two. And as a matter of good practice and courtesy, that will be the chronology that you hand into the judge. Maybe is part of the with your skeleton argument that chronology that you handed into the judge at the start of a trial, or indeed, in advance of the trial. If there has been a direction or order that skeleton arguments on a particular matter are to be filed on served before the case takes place, the other aspect of this is once you've applied the law, you should be in the position to know which which points are your strongest points and which points are your weakest points on. You'll know where your case is at its most vulnerable. You'll know your case is at its strongest on in effect. This leads you to the case theory, your rationale, the why the court should find in your in your particular favour on As I said earlier, everything that you're gonna do from this point onwards is gonna be consistent with that case theory. Your case there is gonna be realistic. It must be logical, Andi, we'll talk more about that in the argument advocacy webinar on it must be symbol. It must be something that everyone congrats with a degree off simplicity on this will be mentioned again with the argument advocacy. But think of it this way. At this point, you need to know everything there is to know about your case and have that case theory, which I have said is that why, on its the rationale behind everything that you do think of the Christopher Columbus submission. What you're after is the antithesis off the Christopher Columbus submission because when he set out from portion, he had not the slightest idea where he was going. When he got there, he had no idea where he waas and when he got back, no idea where he'd been. You cannot, as the advocate be in that position that Columbus was in when he sailed across the Atlantic and discovered America or whatever it WAAS. So when you've got that case theory, when you've got it in your mind, what your end goal is, why you're gonna win the case for why the other side should lose the case, you then move to the final stage, which is the performance preparation on the performance. Preparation really involves a number of things. It involves knowing how to ask questions where you're gonna know how to ask questions. Because in the second webinar in the series, which deals with witness handing, I'm gonna teach you how to ask questions that I could do very, very easily. You want to think about how you're gonna develop that case theory, you're gonna lay down a marker earlier on in your evidence to show the judge where you're going. In other words, the antithesis of that Columbus submission that I was talking about. If you become higher rights advocates on, if you find these webinars painful and dull, which I hope you won't remember two things at this stage of the process for the purposes of your cross examination, a trial, I want you to remember what does not need to be challenged on what must be challenged. Because those are the linchpins of your preparation. Certainly in terms of your cross examination by challenged, of course, I mean putting a point with which you disagree to a witness in cross examination. Now, why do I place so much emphasis on those two questions? Well, firstly, of course, time, maybe against you. You don't want to be wasting time. Challenging things in cross examination that is simply not within were not not within the issues in the case. It may be that that particular issue is agreed and you will fight. If you're in court, the judge will do what I call the left elbow routine. The head will go on the hand and the judgment start to fall asleep because he or she will know that you're cross examining on irrelevant material. But the best way to illustrate to you how this actually works in practice in terms of your preparation for the performance is to give you an analogy. Let's take an alien being from the planet March. Some of you may have seen the most wonderful Bugs Bunny Roadrunner movie at the start of that movie, there's a small character called Marvin. The Martian is a small chapel. It skulls. He has a shaving brush on his head. Fine little chap. And he's on the planet Mars. And one day he's bought and he decides, I'm gonna come down to Earth on. I'm gonna go and watch some civil litigation in the county court so he gets into its spaceship and he zooms down to central London. He comes out of a spaceship and he walks into Central London County Court on the receptionist is there and he says, Hello, I am Martian from Mars. I wish to observe civil litigation these and she says he has got a judge Friedman's called in court for on that little Martian goes in, and he's watching a fast track trial. What is that ignorant but intelligent life form actually seen happen in court. Well, I can tell you what he seeks. He firstly season advocate rights to their feet. This would be counsel for the claimant or the advocate for the claimant who tells the judge what the case is about. The judge listens on his or her opponent listens to the description that is given in open. Then this first advocate brings little people into a little box called a witness box. On in the witness box is a file of papers, a file of witness statements on each witness or the first witness is taken by that advocate to a statement in the bundle. And they're not their head. And they say, Yes, that's my signature on I believe the contents of that statement. True, on the other advocate looks of this and he knows his head. Then the Advocate sits down on the other applicants, stands up, starts pointing the finger and conducts a cross examination. Amazement maybe breaks the witness cry, and this happens for a little people. The advocate number one wants to bring in to give evidence. Then the process reverses itself, the other advocates stands up, and he brings little people into the box on the other ticket stands up on Cross, examines them, and then once everybody is everybody has been in the box a little people have said everything that they want to say. Then this advocate will. The the advocate for the defendant will rise to his feet and tell the judge what he should win in the advocate for the claim and rises and tells the judge where she should win. The judge then retires both and could sit there and pray on, and the judge comes back and decides the case. Opening evidence in chief Cross examination. Closing. That is the way that that ignorant but intelligent life form from Mars sees it played out in court. And if any of you with advocacy aspirations, which you must have because you're doing this course, if any of you thinks that's how the effective advocate prepares case at this stage of the performance preparation when you're doing it out backwards because every good advocate knows the proper way to prepare a case is to start with the closing. Remember, I've already hinted at it. It's going to that end goal. What is my end goal in a case and then working backwards. It's identifying the evidence from your own witnesses that will support that conclusion. It's then working out for cross examination purposes, the items of evidence on the other side that you need to challenge through your cross examination. And if you're with me that far, if that's coming as a surprise to you, then then so be it. If it hasn't come as a surprise to some of you that you go to the end goal and work your way back, then that's good. You would be doing it the right way in the advocacy you've done so far. But if you're with me that far, let me take it one stage further because the speech or, if you like, the closing that you prepare in advance of anybody saying anything in court, the actual closing submission that you deliver further down the line on the last day of the trial, the second day of the trial or whatever it is, that speech should be no more than 10% different from the one that you prepared in advance, I say 10% because very often in trials the unknown can happen very often. Those have been of late disclosure, and it changes the whole rubric of the case. But if But if the submission that you deliver at the end of a case is more in general terms than 10% different to the one that you prepared in advance, then you were not properly prepared because too much in that trial has come to you as the advocate that you should have been able to foresee. I'll give you an example, the less the case that I've already spoken about. I was fortunate after, have a lot of preparation time for that case. And I was able to weeks before the trial started to stand in front of the mirror in my spare room, which I love doing because I could do my hair and get my makeup on. Just generally exotic on. I delivered that speech to the mirror on. It lasted 58 minutes and 17 seconds. The speech that I delivered on Day 24 of that case lasted only two minutes longer and bond to know why it lasted two minutes longer. You'll need to move on and watch the witness handling weapons. So there you are. Forget to your end goal and then work your way backwards. That is how the effective advocate prepares for trial. I hope that that is a bit of some use. I look forward to seeing you again in the witness handling webinar when will develop things a little bit further and obviously we'll come back to some of these core principles of case preparation that we've looked at. Because unless you're properly prepared, you are never gonna be a NIF effective advocate.
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Written and recorded by Alastair Hodge
Hello. My name is Alice the Hajj. And can I welcome you to this data? Lower webinar on skeleton arguments. Many of you out there watching will be involved in advocacy, whether in the Crown Court, the Magistrates Court, County Court or the high court, or indeed, any other form of Tribune on. If you have immersed yourself in advocacy over the last few years, you will know that the a concept off skeleton argument has taken on far more importance than it ever had. When I, for example, when I started at the bar in 1998 it is now a key tool in various jurisdictions, in particular apparent appellate jurisdictions, to which I will return a little bit later on what I'm hoping to achieve in the next half hour or so. It's firstly give you an overview off the girl. Good practice for skeleton arguments on weaving in a few amusing stories which will hopefully entertain you along the way in the second half of the webinar. What I'm gonna do is give you 10 suggestions for good practice, things that you should always bear in mind if you like rules that you should always have in your heads if you are called upon to draft a skeleton argument for an appeal or any form off advocacy that you may come across. So let's. Firstly, if we may spend a little bit of time breaking down the phrase if one can call it a phrase that two words skeleton argument into its various components. The first word I want to focus on is the concept off the argument. Many of you watching may already have seen the data webinar on argument advocacy on the principles that I set out in that particular webinar in terms off the presentation of an argument orally are equally relevant to skeleton arguments because at the end of the day, it is an argument it should contain the elements of logos, ethos and pathos as set out by Aristotle in his book Rhetoric. Why should it contain the logic, the credibility in the empathy? Because it will engage the reader off the skeleton argument on it will make the skeleton argument farm or attractive to them. But let's focus a bit on the argument. Everybody knows what an argument is for the purposes of a skeleton argument in court proceedings. Let me tell you what a skeleton argument is not. It is not simply a recitation off the facts of a particular case that will get you nowhere. The judge or tribunal in a particular case will know what the facts are. The judge, the tribunal have listened to those facts being brought out in evidence over the previous two hours or two days or two weeks, or have along the particular trials, lasts. They will be immersed in those facts, and the last thing they want to see when it comes to looking at your skeleton argument is simply setting out what actually happened in a particular case. The second thing that a skeleton argument is not is simply reciting the law again. Whilst we've looked at reciting the facts and telling Judge what happened in the particular case merely to set out the law almost like a university S a gets you nowhere, either allow the judge will do is go away and think, Well, I'm far better versed in the law in a particular area equally, and I saw this some years ago when teaching skeleton arguments and on argument advocacy, one of the students put in a skeleton argument for a particular exercise, which can only be described as a detailed and nonetheless riveting essay on the wagon Mound number two. It dealt in detail with great principles of remoteness, of damage. Aunt told me everything that I needed to know about the law on remoteness of damage. But of course, that had not the slightest relevance to the actual matters that were involved in the case on if you like, why the judge should find in the students favor on the particular application that they were making. So it is. It isn't reciting the facts. It isn't reciting the law on it. Isn't writing a law? S A So what is it? Well, it's an argument on. As I said earlier, if you've seen my webinar on argument advocacy, you will know what an effective armed human is, In essence, for the purposes of the skeleton. Let's take a trivial example if we may, that of an application for a summary judgment. It is, ah, a document that will tell the judge if you're acting for the claimant, by way of example, why the claimant should be successful in their application for summary judgment. Equally if you're acting for the defendant. It should be a document that tells the judge why he should dismiss the claimants application for summary judgment. In other words, the skeleton argument focuses on one word and one word alone or in fact, two words. The word because or the word why on never, ever forget. Ladies and gentlemen, the why? Because it is the why that is the key issue. Why is it that summary judgment should be granted for the claimant? Why is it that the claimants application for summary judgment should be dismissed? Why is it that a freezing order should be granted in favour of the claimant against the defendant? Why is it on a return date that the freezing order should be discharged? Never, ever, Ever forget that word? Why? Put simply, I suppose, looking at it from a different angle. It's why, in a particular case you should win on why the other side should lose. So much for the argument. What now? Off the skeletal parts off the argument? Well, when I think of the word skeleton, I'm taken back to third year or year nine. For those of you who are slightly younger than I am in terms of years school, but I go back to third year biology when I was taught by the enigmatic, charismatic on thoroughly brilliant Mr Matthews. Now, Mr Matthews was a biology teacher. He was He was a wonderful man. He was times a strange man, but he was a wonderful man on. I remember at the front of his biology laboratory, hanging from the ceiling waas a human skeleton. It was, in fact, a model off the human anatomy with various boat. And every time ladies and gentlemen, I draft a skeleton argument. I think back to 30 year biology. I think back to Mr Matthew standing in his white laboratory coat next to that skeleton that hung from the ceiling. Because that is what you are after in the skeleton. It has to be the bare bones off the argument. No more the flesh. If you like that, you will apply to those bones. You can add to that. You can add the flesh, the bones in your oral submissions. Once you're in court making your closing speech or making your application, it is simply a short, pithy document that sets out in grief and in concise terms why you are going to succeed or why the other side should fail on a particular application or course. So. In other words, when you're drafting a skeleton argument, basically, always ensure that Mr Matthews or that human skeleton is in mind. So how do you do it? How practically do we actually go about putting together a skeleton argument and actually preparing it? Well, the first with the way I do it and it's up to you to find your own way. But can I commend this to the first thing to do is to write the argument almost not in full longhand. But keep in mind brevity. Keep in mind that skeletal nature of the argument on set and committed to paper, set out your arguments on paper on DSO that it is there, maybe eight or nine or 10 pages of text on when you've got that argument. When you know that you've got what you want the court to know and you know how you want the court to find head the button marked Save on. Commit that to your floppy drive, your flash drive, your hard disk or whatever it is on their four, we've got the argument committed to paper. The next stage is to transform that written argument, which is Maura at this stage. A Siri's off written submissions, which have slightly more detail than they would otherwise need. The job for us now is to make that skeletal on the way I do it is by using a very simple method called the Red Pen test. What I would do is I would print off my document that I've prepared my 10 or so pages on. Then with a great degree of detail, I will go through that document on I will with my red pen actually physically on the page. Some of you may be better than me and do it on screen, but I will remove from that document by way of the red Pen things that I don't need, what one might call guff, things that just simply don't want to be there. The classic example that I see when I'm teaching advocacy and skeleton arguments is people that begin a lot of paragraphs with it is submitted that that's perfectly proper language for a total submission, My Lord, in my submission X y Z But in the skeleton argument. It's surplus to requirements. It doesn't need to be there they are words that are simply ot owes. You can get rid of them on if you want to. Quote Lord Justice Simon Brown from Rock Refrigeration and Jones, they're merely written water. They carry no meaning. They carry no emphasis on you can take them out, and you will find when you apply the red paint test that, in fact, the document actually shrinks quite nicely. You may have set out. For example, if you're doing a summary judgment application, you may be appearing in front of a district judge or a high court master. Those individuals will be well versed in the law relating to summary judgment and the key authorities that can be found in the White Book. Therefore, it would be if you have done it in your original draft. If you've set out the test, the summary judgment contained within the civil procedure rules do you really need it? The answer is no. Equally. If you are acting for a defendant summary judgment case, it would be rare to set out a few paragraphs on the facts. Unless, of course, the facts were very, very key to the submissions that you were going to make eso again when you depends which party are acting for. If you're acting for the Cleveland, it may be perfectly proper to set out a brief crazy of what the case is about on the factual background. If you're acting on the other side, you don't really need it. You can cut straight to the chase and get on with telling the judge why the application for summary judgment should be dismissed. And if you carry out that exercise, I say you will find that the document will get shorter. There is no hard and fast rule as to how long a skeleton should be. In some cases that I do, my skeleton may be no more than a page and 1/2. It maybe two pages. But invariably, for me, it would be rare for me to have a skeleton argument any longer than eight pages. The other practical point to bear in mind, which is an important one, is if you are handing in a skeleton argument to your court on the day, make sure you or your office or whoever have acquired the use of a very straightforward tool called a stapler. Trust me, paperclips are no use. You must use a stapler on ensure that your your skeleton argument is stapled together. Why? Because we know in the court system has a lot of paper going around and pages may go missing. You want to ensure that the judge has each and every page off your skeleton? Let me turn now to the importance of skeleton arguments in modern day trials. Litigation on advocacy. It is now in most appeals, perfectly possible to win your appeal by way off the skeleton argument on by Win the appeal. I mean, I get it allowed if you're acting for the appellant. Or indeed, if you're for the respondent to the appeal in having it dismissed, much can be said for trials as well. If skeleton arguments go in before any of the evidence is heard, it very often focuses your tribunal courts mind into your own end goal in that particular case on what you're gonna be saying at the end of the trial about the various different issues in the case. But there's a further practical implication that it's important to bear in might remember that judges are incredibly busy individuals. It may well be the case that a judge returns to their room after a long day in in court on doing some applications the next day. And there's a list of maybe 10 or 15 applications on the first application the judge picks up looks at is a lever arch file of paper. There is that amount of documentation in the fire, but on top of the file is a beautiful, short, pithy skeleton argument. What's the judge gonna read? Well, the reality is the judge is going to read this skeleton. He or she may dip into the documentation. But if you've done an effective skeleton that is gonna help the judge, it's automatically gonna put the judge on your side. I mentioned earlier about skeleton arguments being able to win you cases before you even say anything in court. That is absolutely true. I remember one of my first appearances in front of the Employment Appeal Tribunal in front of Judge Peter Clarke Andi, in accordance with the Employment Appeal tribunal rules. Skeletons had been submitted by myself on my opponent in advance off the particular case. Uh, clearly the Employment Appeal Tribunal, presided over by Judge Peter Clarke, had read those skeletons before we went into court. On it goes further because I stood up and wax lyrical for about half an hour on why my appeal should be allowed on. Then my opponent spoke for about 20 minutes as to why the appeal should be dismissed on what are what happened after that, ladies and gentlemen are the things that only dreams are made off because I will never forget this because Peter Clark looked at both of us and said, Take your gentlemen, we showed retired on. He and his fellow members stood up and they left the tribunal on. They retired for about four minutes, probably long enough for a quick swig of a cup of coffee and say, What are you doing this weekend, Etcetera? And they came back in on Peter Club Judge Peter Clarke on his desk. He had us a desktop computer with a bit of ah sort of arm thing, and he simply adjusted. The arm looked at us. Both smiled and began. This is an appeal from the Southampton Employment Tribunal, promulgated on the 31st of January of 2002 we shall refer to the parties as the claimant on the respond. The judgment was already written. It was already on the screen. They that the Employment Appeal Tribunal had felt able to decide the case based on the skeleton arguments that have been submitted in advance, in which they had read that ladies and gentlemen emphasizes the importance of a good skeleton. But some of you I hear you cry. Does that mean that Orel Advocacy is now dead? Does it mean it doesn't matter now? Of course it doesn't. Because, of course, what Peter Clarke didn't. My appeal was we've in some of the arguments that I made on the day into his judgment, he would finish a particular paragraph that have been pre written on screen on would do something like this on the 24th of February. Mr. Hodge, on behalf of the appellants, tells me today in aural argument that the tribunal failed to apply the second limb off the test in Latin Marshall. We reject that on the 24th of February of 2000 and three and so on and so forth, and he continues with the written judge. But don't Whatever you do take This is me saying that Orel Advocacy is dead on Diz after Net I I'm far from saying that the long before my time there was a story in relation to a criminal, a people that was presided over in the Court of Appeal by Lord Justice Hobhouse and two fellow Court of Appeal judges on the queen's counsel, who argued the appeal point in the morning wax lyrical from around 10 30 AM until 12:50 p.m. On the QC. Sat down was quite happy to have sat down and finished submissions. Lord Justice Hobhouse looked at the both parties and sort of said, Well, that looks as though it's it's clearly timeto have a spot of lunch on by their Lordships wrote on Lord Justice Hobhouse. The one thing about him was he didn't have a particularly quiet voice. Ondas. They exited the court and went down the corridor. He was heard to moon. Well, that's buggered up the judgment. Present it. We're gonna have to rewrite the draft because again they had decided the case based on the skeletons. But the aural advocacy of the queen's counsel on the day had persuaded them so or advocacy is still alive but mirrored by the importance off an effective skeleton argument in the time that I have left, can I now turn to some top tips from me about the drafting off skeleton arguments at the first? And some of these will be trite, and some of these will be second nature to many of you. But they are still mistakes that are made in practice, and it's very important that you don't make these same mistakes. The first matter I want to talk about is actually the naming off the document. It is of little use to a judge to simply head the documents. Skeleton argument. Indeed, if you're drafting skills are not yet developed, developed to the extent that they should be. It may well be that the judge will get so far into the document on not have the slightest idea whether it's actually an argument on behalf of the claimant or indeed, an argument on behalf of the defendant. So always make sure that your judge is not having to carry out the exercise of working out who submitted the skeleton quite clearly on the header. You can say skeleton argument on behalf of the claimant skeleton argument on behalf of the defendant skeleton on behalf of the appellant respondent, etcetera make it clear on the first page so that the note the judge knows exactly who has submitted at the argument. The second point I would make is really one of style. Again. A written skeleton argument should use numbered paragraphs, and it should be paged consecutively. Again. Watch the pagination of paragraphs I've done done appeals where I remember one in particular where my opponent had drafted a skeleton argument on the pagination. Off the paragraph numbering had gone awry. Thing sometimes happens. It's easier to do if you if you like me. You prefer not to use automatic numbering on guy Might. The course of my submission referred them to paragraph 12 of my opponents skeleton argument, which prompted a line from the judge. Which one? Ah, nice said. So I'm not with you, he said. Well, your opponent skeleton argument has three paragraph 12. So try and avoid that because obviously it doesn't look very good on you. It shows a lack of competence, a lack of care. A lot indicates that you haven't really read it with great care before actually submitting it. Some of the guides will have rules is to lay out Ah, good trick that I use is always to use double spacing between each line. That means that the judge or whoever can right in amongst the lines of your skeleton argument on a good practice is to use no no less than 12. See p I. Obviously we are judges are all human beings. I wear spectacles on smaller print is more difficult to read again. Put, make sure there's a decent space at the end of each paragraph so that the skeleton itself is aesthetically pleasing on the eye, the more aesthetically pleasing it is on the I, the more likely it is that the judge will want to read it. Good skeleton, And this is a requirement of some of the guides must also identify the advocate or lawyer who wrote it. In other words, do not simply think well, let's just put it in this skeleton and put nothing at the end or put the date put your name on it. It's your document, you've got care of it, and you're responsible for its contents. So in other words, It's not just a simple formality of putting your name to it. It does carry some weight under the rules I mentioned a moment ago. The date the date is also more also important because in certain larger cases, there may be multiple skeletons. It may be that over the course of a number of preliminary hearings that matters have changed on, it's important that the judge knows which skeleton is the most recent of the skeletons on. The easiest way to do that is just to make sure that every skeleton has a date s so that it's easier to follow equally if you're dealing with an appeal against various matters. And there have been different skeletons for different hearings. Having the date of the hearing to which that skeleton relate is also good practice because it means that the judge will be able to focus on the skeleton with which he or she is going to be concerned. I said a number of things about arguments style and telling the judge way you're gonna g o will turn the judge what you want, why you should get it and then telling him why he should grant it that sort of three faiths style. Again, any form of skeleton arguments should begin right at the outset by putting the judge in no doubt as to what the application is about. Therefore, the submission should summarize in no more than one or two sentences, right at the very start what the particular hearing for application is about. For example, this is a claimants application for summary judgment arising out of a hire purchase agreement dated 22 January 2015. No more, no less. The judge instantly knows its summary judgment application, and you will be surprised. Ladies, in general, when it comes to aural advocacy, how many people actually begin their submissions without actually ensuring that the judges aware what the application is on? What is going on again? Your skeleton should engage the legal and factual submissions that you are making. It's important that they're contained there in because they are the important parts off the argument. But again, I go back to what I said at the beginning. It's not simply setting out the facts, it's not simply setting out the law. It's remembering that question. Why? Why is it that the judge should find in your favour on a particular issue. Why is that? The judge should dismiss a particular argument that is contended for by the other site. I said a moment ago about setting out that the nature of the application of the very start of the skeleton. The next stage of that is actually to set out what you say about the particular issue in the case because of the end of the day saying that it's an application for summary judgment. Well, that could mean a number of things. What is it you actually want? So after you've set out in brief terms, what the case is about, what the applications about put your spin or put your side your sides cakes on the particular issues in the case. So, for example, in the case that might require a number of things for summary judgment, make it clear in the second paragraph in this application to claim it seeks summary judgment on the claim in the sum of however many £1000 delivery up of certain goods, whatever the orders, maybe, and make sure the judges crystal clear right in those 1st 2 paragraphs. One that it's summary judgment and secondly, what you're saying about the particular issues in the case authorities. There's there's a sort of mix thinking about how to deal with authorities. Obviously, if you are going to insert chunks off authorities into the skeleton argument that obviously takes up more space, it may well in some cases, be so fundamental that you need to know you should have the actual words of a judgment weaved into the skeleton argument. There's no right or wrong answer to this. Some advocates I know we'll keep the skeleton when it comes to referring to legal authority. They'll state the proposition, and they'll put the authority on. Then, in aural submission, they will flesh it out by going to the text of the authority. If, however, the point that you are making can be summed up in a minute, and by that I mean no more than five lines a minute, a piece of text. Then, by all means, feel free to site that particular passage of a judgment in the skeleton arguments. Now, some final points be fair. Fairness is one of those things that goes hand in hand with ethos back to Aristotle's arguing about credibility in your credibility as an advocate, Anderson argue. If there are authorities that exist that are inconsistent with the proposition for which you are arguing, deal with them, deal with the other side's case and try and set out with some confidence and authority why it is that the particular case should be distinguished, or why it is that your opponent is wrong to approach a particular point in a particular way. Fairness is everything on the court will love you for it. If you see that you are making concessions where possible, finally be persuasive. I know it's difficult to teach someone to be persuasive on a piece of paper, but there are various ways of doing it because a Z we know from Orrell advocacy brevity is everything. The most effective advocacy is the simplest short sentences very few uses of sub clauses and punctuation. Just keep it incredibly simple, uh, again on I emphasize this in the webinar on on argument advocacy you should always treat the court in the skeleton is that it's first time listeners a skeleton, the first time reader imagine that the judge is coming to this totally a fresh what are the key issues that you want the judge to know you're gonna be arguing for when it comes to the aural advocacy. It's very easy in a skeleton to assume knowledge and to assume that the judge will be able to follow everything that doesn't actually work in every single case. And if there were one other point I could give you, it's be concise. It's going back to Mr Matthews. It's going back to that skeleton on. There have been too many examples in recent times that court of appeal level, where judges have torm to shreds skeleton arguments For those of you with, you want to do some further reading. Just look up on Bailey. The Case of Robert Change its when it got to the Court of Appeal and in particular, the cost judgment on the changes case. Lord Justice Voss, Lord Justice Jackson and Lord Justice Lady. Just a sharp are the three judges on what you had in that case was a skeleton argument submitted on behalf of the appellant that ran to something like 37 pages. There was then a supplemental skeleton arguments submitted to the Court of Appeal, which ran to 40 pages so 77 pages off skeleton argument to put this in context. And Lord Justice Jackson makes this point. This is, in the context, off a judgment of a high court judge, Mr Justice Eder, that ran to some 11 pages. Now, ladies and gentlemen, that is total and utter overkill. There is no reason for a skeleton or supplemental skeleton to be off that length. Andi, from memory of that particular costs judgment where they dealt skeleton arguments through the talents, were refused the costs off those additional skeletons because the court took the view. It was totally unnecessary. So there we are. I hope that's giving you some pointers to go out into the big wide world. On draft skeleton arguments. I wish you well in your drafting on Look forward to seeing you against
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Written and recorded by Alastair Hodge
Hello, My name's Alice Hardin. Can I welcome you to this second Webinar In Serious for the data log Higher Rights of Audience Advocacy course this webinar concerns witness handling both in terms of examination in chief. On cross examination, you cry. There is 1/3 element to it that re examination, which I will touch on very briefly at the end. This is perhaps the most fun part off the entire advocacy process, whether it be dealing with one of your own witnesses or dealing with a witness for the other side on, Let's just refresh our memories, if we will, if we may, in terms of the various components, Examination in chief is the name given to the process whereby we take evidence from our own witnesses. Cross examination is where we would ask questions of a witness from the other side on the final aspect. Re examination. That is where you, as the friendly advocate, get the opportunity to explore with a witness matters that have arisen in cross examination. If need be dealing first if we may, with examination in chief, I can deal with this very, very simply for the purposes of this weapon, are that deals with civil advocacy. Why? Because in the majority, if not all, of civil cases now, all evidence in chief is given by way off witness statement. In other words, as part of the preparation for a case, a witness will have drafted a witness statement, which is accompanied by a statement. Truth that witness statement will have been exchanged with the other. The other parties in the case on a copy will also have been sent to the judge to allow the judge to read that particular statement in advance off at the hearing taking place on the the only advocacy of which you really need to be aware for the purposes off civil advocacy is how to put that statement in. So is to have it as a piece of evidence and standing as the witness's evidence in chief in a trial on you couldn't do that is the advocate very, very simply by asking a Siri's off questions. Firstly, you can get the witness to confirm their name and their address, then take them to the witness statement, then get them. Teoh confirm that it is their statement whether they've read it recently, to which hopefully the answer will be yes. And then get them to confirm that that's their signature. The date on that. The contents of this statement are true to the best of their knowledge and belief. And you can then indicate to the judge that you might want you asked the judge for that to stand as the witness's evidence in chief. So it might go something like this. And forgive me. I will play both parts of the advocate on the witness for the purposes of this demonstration. Can you give the court your full name, please? John Smith on. Are you still resident of 12 KCIA Gardens, Lester? Yes, I am. You made a witness statement in these proceedings. Could I ask you to turn to page six of the smaller bundle that's in front of you containing the witness statements? Do you have that? Yes. Is that a copy of your witness statement? Yes. Could I get you to turn to the last page and confirm that that's your signature and the date? Yes. And have you read that statement recently? Yes. On are the contents of that statement true to the best of your knowledge and belief? Yes, Your Honor, may that stand as the witness's evidence in chief. Yes, Mr Hardaker, very much, and that's really it. That's really the process by which you would put a witness statement into evidence. But it would be rude of me to stop there, because there may come the occasion in a trial where you would be required in a civil case to ask supplementary questions on. In order to our supplementary questions, you need to obey certain fundamental rules because this is examination in chief on, You'll probably learn more about this in your criminal advocacy course, But because it's examination in chief, you may not ask a question in examination in chief, which suggests the answer to the witness. In other words, every question you ask as a supplementary so as not to fall into that trap, which will annoy the judge you may have your opponent objecting to the question is to ensure that every supplementary question you asked begins with the words Who, what, why, where, when, how describe or which? Because those questions that begins with those words allow the witness to answer the question and give their story. There are, in essence, I suppose, three categories of question. There's the first, which is the fully non leading question, which you would be permitted to ask a supplementary. I take a trivial example to illustrate different types of questions so that prints of the permissible question to ask in examination in chief would be what is your name that allows the witness to answer the question. Alistair. Hotch. So the evidence is coming from the witness. The leading question is slightly different. The leading question, which you must not use in supplementary questions, is either this one, which is your name is Alistair Hajj, is it not? Because that suggests the answer to the witness Or indeed, is your name Alastair Hodge. That's the third category of question because that suggests an answer to the witness and for the purposes of supplementary is you cannot ask any questions that are like the Category two or Category three questions. They must all begin with who, what, why, when, where, how describable which, as I've already intimated the easiest way to remember this is that in the examination in chief, the evidence comes from the witness. The advocate is merely there to ask the question to get the story out of the witness or get the UN south of the witness in cross examination, which will come on to match a little bit later. It is, of course, totally different because you is the advocate. Want to ask the leading question in order to get in order to hopefully obtained from the witness A yes or no. So for our purposes, put this putting the statement in should be relatively straightforward for you. And if you ever do need to ask a supplementary question, always make sure that it begins with one of those trigger words. Who, what? Why, when, where, how describe or which. That's really all I have to say on examination in chief, because in the civil context it is very rare that you will have to deploy the skills which you will learn on the criminal advocacy course off conducting and on examination Chief in the old fashioned way. That's really it. Let's move to cross examination. Cross examination is the most fun part of the advocacy process. It's also been known as making people cry. But what? Let's start with some fundamentals. What is the purpose off cross examination? Well, the purpose I suppose, is threefold. Number one. It's to put your case. You have to to a witness where there is disagreement. Put your version of events to a witness as to how a particular factual matter happened. Because if you don't do that, what will happen when you make your closing Submission is the judge will say. Well, Mr Hodge, I don't recall you putting that in cross examination to the winners. If it's something about which you are going to comment in your closings mission, you must put it in cross examination. The second purpose of cross examination is to test the credibility off a witness. You may think that a particular witness is unreliable. They may have said different things on different occasions, and you want to highlight that lack of credibility to the judge during at the case. And I think the final purpose a cross examination one in which I've always believed is to make people cry. There is nothing more satisfying than an advocate thing, getting a witness to cry or to break them down and make them realize that they may have been telling a few Porky's along the way. So those the main purposes Cross examination. What of cross examination itself? What? A few preliminaries if I met. Most lawyers do it badly all the time. No lawyer doesn't brilliantly all the time on No lawyer, in my view, in the early stages of their advocacy careers doesn't well at all. The reason for this, I say, is because you have to be in it to be an effective cross examiner. You need tohave three things on. When I tell you what these during three things are, you'll realize why I say with some confidence that no advocate in their early years off cross examination, does it well at all. The first thing you need is a mastery off the loft procedure on the law of evidence to the jurisdiction in which you're gonna practice. So, in other words, a sound knowledge of the contents of the Green book, a white book, whichever procedural text you are using, as well as a command of the law of evidence, you need to know what things are admissible. What things are not admissible. But I couldn't take it for granted that you, as the potential cross examiner, can acquire those fundamentals. Firstly, by undertaking the course, and we will be on the course in life times that we're in the classroom, be looking at principles of evidence and procedure. So as the cross examiner, you can acquire those fundamentals either by listening to me when you actually do the course. Or indeed, heaven forbid by going to a library on reading. What is there to be read on the fundamentals of evidence on procedure? So much for the first requirement. The second requirement is experience again. Having taught advocacy all over the world, I am totally persuaded that the FN you can only be an effective cross examiner with experience on by experience. I mean 55 0 cross examinations under your belt, because only when you cross examined for 50 times do you get your sea legs. Do you become aware of how witnesses react to different types of questions? Two different types of style of questioning. It's not for me a zone advocacy training to teach your style if you go back to the original or the first weapon are that we had on this course. Remember, I talked about the Six Rules of advocacy on one was being true to your personal brand. I'm not gonna teach your style, be yourselves. But I suppose in essence, I do have three styles. Number one is myself. I will always cross examine its myself. Secondly, sometimes with a rather slippery witness, I do what's called the Hannibal Lecter routine. That is where I adopt the sort of style of Anthony Hopkins. And basically, what one does is one looks into the eyes of the camera or indeed, the witness, and tell them that they have a very attractive feature about their face and that you're going to eat it on. It seems to upset them and sort of shake them up a bit. If you tell the witness that you're going to eat well, I've never done that. I would never tell a witness that I'm going to eat their nose or things like that. But it's a very race of looky, very calm way of getting under the skin of the witness. And the third style I often adopt, which is very good for a cross. Examining general managers or managing directors who are accused of sexual harassment, is to actually adopt the Colombo routine because managing directors tend to know almost everything there is to know, or at least they think as witnesses. They know everything there is to know. And so you adopt the Colombo approach Peter found in the 19 sixties and 19 seventies. You'll remember, played the to Cheryl detective, who gave the impression that he had not the slightest idea what he was doing and when, in fact course he knew exactly what he was doing up here. So cross examination might begin with obviously losing the cigar that Peter Foul called Mr Witness Cat. Can you help me out here? I'm having a little difficulty following this, and maybe you could be of help on the witness that have looks at you and says over this Mr Hodges, and particularly good is he doesn't know what he's doing. But of course I know exactly what I'm doing, and you love them into a false sense of security on before they know it, they're partying, had so experienced 50 cross examinations under your belt, there's 1/3 thing you need is to be an effective cross examine. Maybe I shouldn't say it's maybe it's considered elitist now. Maybe it's considered un politically correct, but I don't care, because I think it's true. The third thing you need to be an effective cross examiner is talent, and you've got the talent or you haven't got the talent. When you all came out of your mother's wounds as babes in arms, either God was there to go cross examination talent or God was elsewhere in the world saving a rainforest or whatever is God's do so. So if I can't give you a mastery of the fundamentals of evidence and procedure, which we will, we will work on, you'll learn that for yourself. And I can't give you the experience. I can't replicate or recreate for you as part of the course 50 cross examination so as to give you the experience on a country that what some of you may think I am not got on. Therefore, I can't give you the talent. I don't have the power to zap you with talent for cross examination. So why I hear you cry? Alistair, do you dare try and tell us about cross examination? Well, I think I can say this much whilst in the time that we have together. Both is part of this webinar and indeed, on the life course in in due course in the fullness of time. Whilst I may not be able to make you a good cross examiner, I think I can stop you from being a bat cross examined on. That is my limited objective. Over the course of the next few minutes, how am I gonna do it? What? I'm gonna do it by giving you a series of rules which we call the 10 Commandments. I already mentioned in in the other webinar on case preparation. Thea American gentleman Irving Younger, who set up the National Institute of Trial Advocacy in America. Well, having younger came up with the original 10 Commandments a cross examination. But that was in the late 19 sixties. They were also American and therefore somewhat alien to our jurisdiction in this country. So what I've done is I've updated them. I've made them relevant to modern civil practice Onda cross examination, civil courts as well as criminal courts. That principles same on the message to send to you guys out there is when you're cross examining, never, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever violate any of these commands. Because when you do, two things will happen. Number one, You want the ground to open up, that you will sink in and you will never be heard from again. Number two You remember me? The madman glaring at you, telling you not to violate these commandments. And sure enough, when you break one, you'll think of me. But I'm a lovable chap on Maybe that's not such a bad thing. Of course, what I'm gonna talk about, there are exceptions. There are, of course, exceptions for the virtuoso cross examiner, the cross examiner with the experience with the talent, with the mastery of procedure and evidence, he or she will be at liberty to depart from the operation off these rules off cross examination with the click of a finger. Why? Because we can. Because we can do it because we know what we're doing. But for those of you who have not yet got the talent to require the experience, stick to these rules on do no violate them. How's it gonna work? Well, it's very simple. Each of the commandments can be simply stated so as to make it memorable. Each commandment I'll then sketching a little bit of background as to what I mean by the commandment on. Then there's a There's a story to accompany most of them, some from my own practice and some from the greater world of trials at large to illustrate how the commandment works in practice. So without further ado, let's now turn to those commands. The first commandment is be brief, short succeed. Oh, ladies and gentlemen, if I had again, if I had £5 for every time I see this in a court or a recent case that I'm doing, it's where you see opponents going on and on and on cross examination, asking questions that totally irrelevant dealing with issues that agreed between the parties. There's no need if if something is agreed, you just sort of you don't touch it very often. What you have to ask yourself at this stage of the process in order to comply with commandment number one is Do I actually need to cross examine because remember the purposes of cross examination. You're gonna put your case to particular witness, you're gonna challenge their evidence, you're gonna seek to destroy their credibility. If you don't think you need to do that with a particular witness. You don't cross examine it all but equally with some witnesses. You focus on that closing argument because remember, every question you ask in cross examination should have some relevance. It should have some bearing toe what you're going to say in your closing submission. Cross examination, ladies and gentlemen, is not the invasion of Europe. It is not a bunch of general sitting around a vast table moving a tank and inch closer to Berlin on a daily basis. That takes hours. That takes days. That takes weeks. Cross examination is a commander rate. I think back to 1981 when I was a primary school. Come back with me in 1981 and there were only four channels on the television. God, can you imagine a television with only four channels on it? BBC one, BBC to ITV and Channel four. And I remember I was a primary school and we had a television in the classroom on the picture was unchanged. It was of a white building on in the top, right hand corner of the picture. It said life and nothing happened a couple of hours. Then all of a sudden, groups came off the top of the building on these men, dressed all in black with big gas mask down the ropes and they kicked in the windows and the grenades went off. Boom on. Then, about 40 seconds later, all the hostages came out the front door with these men dressed all in black. Yes, ladies and gentlemen, it was the Iranian Embassy siege back in 1981 on that's cross examination. It's come under rate. You stand up, you put your questions and you sit down. Of course, there will be. Exceptions are longer. Cross examination may be required where there is a lot of factual matters upon which you have to cross examine. But always think back to what you're gonna be saying in your closing submission and keep it as brief as you can. The next commandment Commandment number two is goes hand in hand with a commandment number one, and it is one point per question. One point per question. This is where you need to acquire this skill off asking questions that are brief in terms of the length off. The question take is an example the cross examiner that would breach this particular commandment might ask the following question. Being cross examine eighth generation Miss Witness on the 20 fourth of January of 2017 year arrived at work at 9:30 a.m. On the first thing you did was park your car in the office car park, which is immediately opposite the office building on the other side of the road on having parked your car. You then got out, locked it on, then walked the 20 or so yards to the office building, which is a glass door. And you went through that glass door and said, Good morning to Allen, who was the security guard on duty that morning, Having said good morning to him, you they went to your office, which is on the ground floor on. When you went into your office, you saw on your desk that was an envelope, which he picked up, opened and read the contents inside. And it was a letter from your managing director inviting you to a meeting at 10 a.m. That's right, isn't it? Now, how is the witness supposed to answer that question? In other words, that particular question. What's 30 questions in one so you need to acquire the skill off. Asking that question one point at a time. Something like this. On the 27th of January 2000 fit 17 year arrived at work at 9:30 a.m. Didn't you? Yes. The first thing you did was park your car. Is that right? Yes. You parked your car in the office cup up, didn't you? Yes. The office car park is immediately opposite the office building, isn't it? Yes. It's on the other side of the road, isn't it? Yes. Having park your car? You got out of your car, didn't you? Yes. You locked your car, didn't you? Yes. And you then walked the 20 or so yards to the office building? Yes. The office building is a glass door, doesn't it? Yes. You went through that glass door? Yes. There was a security desk on the left, wasn't there? Yes. Alan was on duty that morning, wasn't he? Yes. You said good morning to our Yes. He said good morning to you. Yes. You fancy Alan, don't you? Oh, no, I don't. On having spoken to Avenue. Then went to your office, didn't you? Yes. Your office is a desk, doesn't it? Yes. On your desk was an envelope, Wasn't that? Yes. You picked up that envelope, didn't you? Yes. And you opened that envelope? Yes. And you read the contents inside? Yes. And it was a letter from your managing director, wasn't it? Yes. And that letter invited you to a meeting at 10 a.m. In his office? Yes, one point per question. Because if you go one point the question you will note that retains control off the witness. There's no way for the witness to deviate if you're going one point at a time. It also makes the questions crystal clear. It's also far easier for the judge to follow on, I suppose. The sort of yardstick for you when? When preparing any cross examination. Remember the sixth rule of advocacy. Write it out if you're gonna write out your questions and when you type them or write them in manuscript. If you find when you have written your question that a question runs whether in manuscript or typed 12 See P, I would have a fund you want to use. If it runs to a second line on the page, then arguably the question is too long. That question can be made shorter. It's containing too much information. So that's the yardstick, every question on one line only. So we're gonna be brief in the global context of things on. We're gonna go one point of the time. The next commandment is simple language. Plain words for those of you have seen the webinar relating to case preparation. You will know that the third rule of advocacy is keep it simple. You must acquire the knack of using plain and simple language when asking questions. I think back to an occasion when I cross examined the scaffold in the Carlisle Employment Tribunal. This was a man in his late forties who had left school at the age of 14 and had no qualifications. You cannot, when dealing with that type of witness, ask complicated questions. You can't use language that he may not understand. Therefore, you need to reduce everything to its most simple. Of course, there will be exceptions when you get to the stage of your careers, where you may have to cross examine an expert witness. Let's take a a surgeon who has carried out a new for ectomy by way of example, that's the removal of In a very insist you will need to know what a new for ectomy is. You will need to know what a parrot in the M is. You will need to know where the ureter is, etcetera, etcetera, technical language. But your expert will also have a grasp, a mastery off the language you are using on the problem that a lot of young advocates have it again. It's not being true to the personal brand. It's thinking that when I asked a question, I have to use flowery language. I need to sound exotic is the advocate in order to be an advocate? I remember when I started at the bar, I I used to cut my teeth in the early days on a number of road traffic cases, but I would go up and down the country, old and broaden stall Manchester all up in the north on only a handful of those cases. In the old style of examination in chief, I know this is an examination in chief. Our example. No cross examination, our example. But it illustrates the use of plain language in simple words. Only a handful of cases. Did I ever hear in advocates use the word car or bus or bike? It was always vehicle. Nobody ever asked the witness how you drive. They said no. So, Mr Witness, what did you then do with regards to the operation and control of your motor vehicle? Who hates it when I hear that is too flowery? Keep it simple on again your yard state for when you actually do it for really low yardstick on this is to carry out a cross examination. When you ask your questions on the witness on No occasion looks back at you and says, Sorry, I don't understand because if you can ask every question where the witness understands what you're asking, then you have kept to this particular commandment. The next commandment is only asked leading questions I mentioned a short while ago when we were looking at examination in chief. Remember an examination in chief? You're gonna ask questions that begin with who? What? Why, when, where, how describable which. But we're talking here about cross examination. The rule of evidence law in cross examination is that leading questions are permitted. But my commandment goes further than that. My commandment is that you will only ask leading questions in cross examination. In other words, you will never asked that question. What is your name? By way of a trivial example? You will say your name is Alice the hajj, is it not? You could also ask the category three questions. Is your name Alastair Hajj? But perhaps more forcefully for our purposes. In cross examination, we should stick to Category two questions. In other words, questions that suggest the answer so totally taboo in cross examination is any question that begins with who? What? Why, when, where? How describe a which. Why? Because when you ask that type of question, you passed the raise. The witness the witness runs away on the witness says what they want to say. That's not the purpose of cross examination. The purpose of cross examination is for you to get the witness what you want to say on by asking them a why or what? Or a witch or a wedding question, they can say what they want from your case analysis from your preparation, you will know what the witnesses likely to say in response to a particular question on those questions, must be leading. I'll give you an exception. There is an exception where you can throw it over to the witness. Teoh, explain something, or to tell you something where you know you're in a win win situation. A few years ago, when I get a case in Leicester, I remember cross examining the claimant on the cross examination had if it were to comply with this commandment of only leading questions, Will will have gone something as follows at Miss Smith on the 10th of January of 2010. You met with Mrs Cords, didn't you? Yes. The purpose of that meeting was to discuss your grievance, wasn't it? Yes. And we have a transcript of that meeting in the bundle. Don't way. Yes. Turn, please. To pay 6000. That is a copy of the transcript, isn't it? Yes. It contains everything that you said to Mrs Cords at the meeting, doesn't it? Yes. It says it contains everything that Mrs Could said to you. Yes. Here comes the If you like the leading form. Nowhere. In that transcript you suggested Mrs Cords that she should interview X no nowhere. In that transcript, you suggest that she should interview. Why do you know nowhere in that transcript, you suggestion interview that said no. But what I did was I turned around. I got to that point of getting her to agree. The transcript transcript was accurate on it contained everything that was said and I didn't ask it in leading form. I said, Where in that transcript do you suggest to Mrs quotes that she should interview X on what happened was, of course, she started turning the pages and the hand started to shake and she got very worked up because she couldn't find it and started screaming, It's in here somewhere. But of course it wasn't. Of course, there's a lesson there. You have to make sure you've gone through it in minute detail because the last thing you want the witness to do it. So So, yeah, pay 6002. Bottom line Death to the cross examiner and you lose credibility. So in some circumstances where it is a win win situation, you may want to ask an open question, but for our purposes might I suggest that you stick to leading questions ALS the time because it will retain control of the witness and you will be in charge of the cross examination. This little example of the nowhere in this transcript Does it say this leads us into the next commandment, which is? Listen to the answer, continuing my cross examination. Nowhere in that transcript do you suggest you should interview X? No. Nowhere in that transcript, Do you? Suggestion? Interview? Why do you know nowhere in that transcript? Do you suggest you interview said? Do you know, two weeks later, you send a further document to Mrs Cords? Didn't hear? Yes. Have a look at page 6000 and 20. Yes. That was the document you sent to Mrs Quids two weeks later. Yes, on that contained further information that you thought Mrs Cords would know should know. Yes, on nowhere in that document. Do you suggest to her to interview X? Do you know nowhere in that document? Do you? Jesse's interview? Why do you know? And they were in that document. Do you suggest you should interview said, Do you? So, ladies and gentlemen, I took a punt I took upon. I had nothing to lose. So I looked across the witness and said so, Miss Smith are you telling this tribunal you expect Mrs Cords to be psychic? What did she say? What did you say? She said yes. And very often, ladies and gents, witnesses will say the most extra ordinary things in cross examination. But you're too busy thinking about the next question or whatever it is you're going to say that you forget what the answer is that you don't make a note of the answer. You might as well be in a different court trying a case elsewhere. You must listen to every answer that the witness gives. And when you get that ridiculous answer, when you get the absurd answer, what do you do? You stop. Make a note of it. Make a note of the time of the question on move on to something else. The danger of following it up in a lot of young advocates when they get that. If they got that answer, would repeat the question for effect. They would say you're seriously suggesting that Mrs Quickly you want the tribunal to find that Mrs Could should be psychic on the witness will do. That's still usually say Oh, no, Mr Hodge. No. Sorry. I didn't mean to say that you're confusing me. You're winding me up, etcetera. Of course I meant to say no, but you just leave it hanging in the air, making most of it. And then you could make one of the use of it in your closing speech that you wish and think of the fun that you could have in your closing submission, as I did with that particular event. For those of you have seen the the webinar on case preparation, you'll remember that I referred to my my closing speech being 58 minutes and 17 seconds long. Well, the one that I actually performed was two minutes longer because of this incident, because I highlighted to the judge the lack of credibility that this particular witness had. I also did it in quite an amusing way. I said to the judge said, Sir, do you remember the question? I asked the claimant on day three of my cross examination to 11. 37 a. M on his best brew me accent. Did you just want Mr. But you haven't the slightest idea now that you mention it. But there we are. Park it on. Move on. Don't leave it to chance Because, as I say, if you do leave it to chance. The reality is that the witness is gonna try and wriggle out of it. The next commandment is probably my my favorite. I was about to say it's probably the most violated. In fact say they're all violated by inexperienced advocates. But I'm very certain not that I've ever seen. But I'm fairly certain that one can actually violate all 10 Commandments. In one question, that's probably true. But anyway, the next commandment is don't quarrel with the witness. Sometimes it seems like an attractive proposition. You're standing there in the witness is not playing ball and you engage in an argument with the witness. Now, aside from this being in it, lacking an actor activity is an advocate. You would you lose some of your own credibility. It just gets you nowhere. Quarreling with a witness usually arises in two different scenarios. Firstly, there is what I call the pantomime cross examination where it just turns into a little bit of a tennis match. You arrived at work at 9:30 a.m. Did you? No. No, I didn't. Yes, you did. No, I didn't Yes, you did. No, I didn't. Yes, you did. Pointless. The question has been put by the advocate. The witness has given an answer, and nothing on God's Earth is gonna persuade them that it was any time other than 9 30 off course. If you have got extremely, it's for other evidence to suggest that they didn't put arrive at 9 30 Then you put that to them. But for the purposes of simply putting the question, you need not go any further question has been asked. The witness has answered it so becomes a bit of a tennis match, and it's inelegant. Don't do it. The other area in which arguing tends to arise is where people forget that what we're talking about here is cross examination. Not examining crossly on this is really geared to the advocate that has an angry attitude. You must have done communicate. You could be firm, but you must adopt a measured attitude when cross examining a witness you'll know from the solicitor's regulation authority code of conduct. You'll know from the Bass Standards Board that we are not permitted as advocates to deliberately set out to harass or Arang or annoy a witness. That's not what we do. Yes, you may have to be firm, but usually one could be firm without being angry or without quarreling with the witness. The greatest example of this comes actually, from the end of the Second World War, there was a serious of trials many of you may know that took place in the town of Nuremberg in Germany. This was where the International Criminal Court was set up to try many of the Nazi elite who was still alive at the end of the end of the Second World War. There was a prosecuting team of four people. There was an American, Robert Jackson. There was an English silk. There was a Frenchman and there was a rush, for the Allied forces have had a prosecuting team on There was an English historian who was out of Nuremberg, who wrote a historical account. Of all the Nuremberg trials that took place on his name was John Wheeler Bennett, and he eventually produced his massive texts, Most of which is contemptible is literature. I'm not recommending it for that, but there is a section in it where he describes the cross examination off Hammond going now, Herman going for those of you who don't know was an exceedingly evil man. He was responsible for the deaths of many, many hundreds of thousands of Jews and homosexuals in what is now Poland. During the Second World War, he was, he was he was an exceedingly evil man, but he was also a brilliant. He was highly intelligent, although towards the end of the war, he going to put a bit up here with heroin, cocaine abuse. But that's neither here nor there. Here is at Nuremberg fighting for his life, and John Wheeler Bennett describes the cross examination as follows. First the American Robert Jackson. He described him as a Times brute, but at times he got into trouble going managed to get the better of it. Why, says John Wheeler, Bennett is a layman because he was not properly prepared. Remember, Anthony leads three rules of advocacy around with my first full of advocacy preparation. When Jackson got into trouble, it was the English silk who got him out of trouble. Then he describes the Frenchman scrap. Prevention was wearing a very smart grey three piece suit, wonderful to the wavy white hair, very attractive, very charming and totally useless is a cross examiner. That was French, then the Russians is the point of the story. The Russian He described his 32 stone off, heavy, going rushing tech on. Once this tank got underway in cross examination, there was nothing standing in its way on the Russians. Cross examination simply consisted of the Russian taking and document handing it to Gary on going to get going to read it. Once Gary had read it, he would shouted him at the top of the top of his voice. So Hammond going, do you know, confess yourself to be fascist beast? And he did that for day and 1/2 and it was very angry, and it was all very e t t. And of course, the reality. What's all going did sitting in the witness box, which just sit there going? No, that's examining Crossley on. You shouldn't do it. By all means. Be firm, But don't adopt that nasty, angry attitude. The next rule, The next commandment, is avoid repetition. This is to guard against the cross examination that simply repeats the evidence that has been given by the witness, either in their witness statement or live in court. There is a bit of psychology, a bit of a bit of brain doctoring, I suppose here that if you tell a judge something once he may believe that he may not tell a judge twice, you'll probably believe it. Tell it to him three times. You'll definitely believe it until it 1/4 time. Nothing on God's Earth will persuade him that it is anything other than the truth. This is because our brain, when it would here's things that we have already heard. It processes information and makes them more believable than if we only hear something once. So when you cross examine, you want to avoid simply in leading form, taking the witness through a passage of their witness statement and getting them to agree. Of course, that can agree. That's their evidence. Remember that cross examination is about challenging the evidence. You want toe challenge a particular piece of evidence. You don't get them to repeat it. You simply say it wasn't 9 30 when you arrived that morning, wasn't it was 10 a.m. That's challenging the point, and it's not just letting them tell the story over and over again. The next commandment has never let the witness explain anything that goes hand in hand. I know with some of the other commandments that we've looked at on. Of course, I should have said at the outset there aren't really 10 Commandments there. Probably only six or seven, but we spell them out to make 10 because that has a greater biblical in literary ring to six. Come on, eso There's never let the witness explain anything again. If you're observing the only leading questions commandment, then you will not find yourself breaking this very often. But it is not your job. Is the cross examiner toe Ask for the explanation. You might do a perfect cross examination, which takes you to a point. You're asking only leading questions and you destroy the cross examination by finishing off with or how come? How can that be asking for the explanation on? Let me tell you, ladies and gentlemen, if you ask a witness to explain something that is exactly what they will do, they will give you an explanation as to how something can be on. Therefore you must guard against it. You must try to stick built to a point, by all means with your questioning, but never rounded off by that. How come explain, because usually what? The answer that comes from the witness will destroy your cross exam. The next commandment has never asked a question in cross examination, to which you do not already know the answer. This is what this is quite an old one and has been around for many, many years again. This is really more geared to the preparatory stage. You must know the answer or the likely answer that a witness is going to give to a particular question before you asked it on. This will also stop you going fishing. Cross examination is no time to go fishing for further information from a witness at the time for disclosure, that's all past. You should know everything there is to know. If you don't know everything, there is to know that that's the fault of your preparatory process on. You should have flagged it up at that particular stage and obtain the information from your own witnesses that you need the final rule on again. This goes hand in hand with some of the things we've already spoken about. is avoid the one question too many. Develop a realization of when the job is done when you have actually achieved everything that you want to achieve in your cross examination. The classic example of this, albeit it's criminal case. Some years ago it was It was GBH. Case on the prosecution's case was very simple that there was a fight. In the course of the fight, the defendant got his teeth around the victim's nose and bill it off. So the victim's great victim turned up in court looking like Rafe fines. Is Lord Voldemort with no nose or or lead Marvin in that other film with No nos didn't look particularly nice, but good reminiscence of the Harry Potter films. Oh, and for those of you who do personal injury, what you will know that this is perfectly possible. The jaws are the strongest voluntary muscles in the human body on the knows very little bone. It's mostly made of cartilage, and if you if you do get your teeth around someone's nose, you can bite it off, exceeding me easily. The prosecution in this case calls an eyewitness. It takes place in the parking calls, an eyewitness Who says that? They saw it. Then comes the cross examination from the defense. And it goes something like this. You were in the park that day for your favorite pastime, wouldn't you? Yes. Your favorite pastime is birdwatching, isn't it? Yes. You're keen birdwatcher? Yes. On Birds live in trees, don't they? Yes. Come Have a look at the plan of the park. So they get out of the diagram of the pop. You can see on this planet all the trees in the park around the edge of the park. Yes. On the fight to place in the middle of the park. Didn't? Yes. And there are no trees in the middle of the park. Other? No. So you were looking at the birds in the trees? Yes. On the fight took place in the middle of the park. Yes. Stop. What is that? Defense lawyer can argue in his closing speech. The jury, quite simply, he's looking at the birds in the trees. He had his back to the assault which we know took place in the center of the park. Therefore, he had his back to the assault. He couldn't see it. But what is the advocate do know he breaks this commandment. He goes one question too many and he says this. So if you were looking at the birds in the trees and the trees around the edge of the park on the fight took place in the center of the park, how can you possibly tell this jury that you saw the defendant bite off the victim's nose? Quite simple, Says the winners. I heard a scream. I turned round when I saw him spit it out. Cross examination totally destroyed by one question too many. So those, ladies and gentlemen, are the commandments. Follow those and you will never, ever go wrong. Obviously, when we come to do the practical exercises in due course, I will be looking as your teacher for your advocacy trainer. Four Commandment compliance Because I say where you do violate the commandments, we do end up in a bit of hot water. The final thing I just want to touch on his re examination, the third part of the process and very rarely, in my view, where you need to know about re examination. That is because there are 22 rules. There's the golden rule and there is the platinum rule. The golden rule is don't re examine unless you absolutely have to. On the platinum rule, being a more precious metal than gold is don't re examined. I see far too many advocates on a week in week out basis. You think, Oh, it's reexamination of goto or something? I am proud to say, Ladies and gentlemen, of all the cases I have done, I can still count the number of times that I have re examined on two hands. It is only in the rarest of occasions where you would need to re examine if a judge invites you to do so. You simply say I have no questions there many reasons for this Number one, you can dig yourself into a hole in reexamination very, very easily. Number two, if your witness has been destroyed in cross examination, the last thing believe you me as a matter of practicality that witness wants is to answer more questions. They want to get out of there as quickly as possible on in theory, as the friendly advocate, you want to get them out of there as quickly as you possibly can. If you do find the need to re examine the same rules apply as apply in examination. In chief, you must not ask any leading questions. So therefore, in re examination, without back to who, what, where, when? Why? How? Describe which territory on you must acquire those those fundamentals in order to re examine. But in early stages of your advocacy careers, I would say, Don't do it. So there we are that hopefully has equipped you for the witness handling sessions that we will be doing on the course a few general points just to finish with. It will never be perfect every time. I don't think there is any advocate I know who are in every case with every witness performs the perfect cross examination. It simply doesn't happen. But if something does go wrong, you stick to your guns. If all fails, move onto a different point on. You have to go from a point of credibility. You have to remain calm on the outside, even though on the inside you may be actually going mad and the heart will be bumped, pumping blood like never before, and you'll be feeling quite nervous when it comes to the course itself. I'll be teaching way teaching it in groups obviously, look at the other performances by the other individuals on the practice days loan from the the advocacy reviews that they get s so that you can improve your own advocacy. It's been a pleasure talking to you, and I look forward to meeting you on the course in the fullness of time.
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