A practical and essential guide for carrying out effective family law advocacy.
Hello and welcome everybody very pleased to welcome you to today's session through Data Law. This is the four part of course over a period of two hours where I'm going through with you somebody elements surrounding carrying out effective family law advocacy with giving you An essential guide. So this is session one of four. Any session is around 30 minutes in length, so I'm softer. Mahmoud, I'm a solicitor, author and lecturer in family law predominantly, and I'll be taking you through this area with a beauty giving you hopefully some useful tips in so far as conducting family law advocacy across the various courts. Now, what I'm going to be doing then in covering that is to go through a number of slides with you that are prepared and first slide really I just wanted to set out for you is really the aims and objectives of this course. And as you can imagine, many practitioners sometimes do feel quite overwhelmed with having to conduct family advocacy. Uh they won't necessarily know where to start when it comes to preparing the actual hearing itself, the pre hearing discussions discussions with clients and also the follow up work thereafter. So, what I'm going to do is giving you hopefully useful, practical and somewhat straightforward account of how to go about firstly, preparing for the advocacy. Uh and in particular preparation appearing discussions discussions with clients, making submissions, and also dealing with live evidence of course, cross examination. Re examination and examination. Chief. Okay, so I'll be going through that with you. I'll be going through preparation dealing with in chief cross examination and re examination and also looking at the position with submissions and speeches in that regard. Now, the nature of this course is that I'll be concentrating more so on uh those elements of advocacy which relate to injunction proceedings, whether that's going to be a without notice application or unnoticed, uh and therefore injunctions of personal protection and also Children law proceedings, predominantly private and public law proceedings. So essentially care proceedings and on the on the on the whole. So I'll be going through those elements with you in terms of the advocacy predominantly for those areas. And I will be referring to case law and statutory provisions. And I have made this provision here for you for acknowledgement of case law and statute insofar as that is concerned. So you've got the elements there. Right. So, Throughout the course of the two hour session and told her, even though it split Up into four parts, I'll be looking at somebody main areas to cover. So, are we talking to you about good preparation and also when to start preparing for hearings. So, I'll have a look at that and we'll be dealing with matters related to opponents. So, the kind of uh relationship we should be having underway. We we certainly yeah, work with other lawyers and also litigants in person and also I'll be taking you through live evidence, will be looking at both submissions and also live evidence in chief cross examination where as I've said here do not get cross when you cross examining, so to speak. And also, Since we've had the onset of COVID since March 20 20 the way in which we conduct hearings, of course, is very different to now to what it was pre March 2020. And therefore we need to understand how remote hearings work and what the expectations are on all of a sudden, as the President of Family Division, Sir, Andrew McFarlane said recently in the recent views from the President's remote Chambers of July 2021. His Lordship's vision is that he even when we come out of um the restrictions as as they are and as they've been lifted to a certain degree, they were still going to be a need for remote hearings. Post Covid uh restrictions and in any event. So therefore, it's something that we do need to be familiar with in that regard. Yeah. So, what I want to start with then is thinking first and foremost about elements as to rights of audience and also who the judicial officers are that you're going to be appearing before. Now, many of you who will be listening um will be solicitors and therefore with that in mind. Bear in mind, of course, the code of conduct that you'll be banned by then, is the solicitors called the conduct. Of course that applies not just as solicitors, but of course the firm, so therefore regulated bodies and practices. So therefore within that it will encapsulate independent solicitors. The local solicitors to train need a paralegal. Okay. And those of you who are charted legal executives or graduate members will be aware that even though silex is your governing body, of course, a lot of the principles in terms of the conduct rules will be uh those based upon the uh s sorry this list as regulation authority in terms of the code of conduct there. And then of course some of you who will be listening, who are barristers, then you've got the bar standards board and the conduct rules are very similar to what we had for the the code of conduct for solicitors. And one of the things to bear in mind with that is about rights of audience as a solicitor. For example, a solicitor is entitled Under the Legal Services Act 2007 to carry out regulated activities. And one of those of course, is to conduct uh rights of audience and therefore it's important to know about which course you have rights of audience before and in particular whether they feel training, for example, what type of hearings, then you may well be undertaken in those circumstances. And of course under the supervision and guidance of supervisors, making sure that one is assisting in the conduct of litigation Going forward. Now, staying with that. And I suppose if we look at family cases in particular since 22 April 2014, you'll be aware of the fact that we've had the merged family court sort speaks apply to that. We used to have hearings in the F. P. C. As we call it, which was the family proceedings court, that was that branch of the Magistrates called, that dealt with just family cases where you would appear before Magistrates or justices of the peace, as we say, or lay judicial officers and sometimes before district judges who were often Magistrates court. And then we used to have the county court of course, of course, which used to also have a family jurisdiction within it. And of course we did have and continue to have the High Court jurisdiction. But as from the 22nd of april 2014, the then president of the family division, Sir James Mumbi had the intention of merging the F PCS with the family jurisdiction of the county court To bring together together with some elements of the high court, a single family court. And that's what we have. Of course today, as of August 2021 we do you still have that residual part of the High court inherent jurisdiction. Uh And that still remains to be heard within the High court, the family division of the High court. So some of you will appear before a judge of the High Court or what's called a section nine, Judge, Section nine of the Supreme Court Act in 1981 which may well be a circuit judge, for example, who would then sit in. He's a her capacity as a section line judge. And that's where you can be inviting that judge than to hear applications fire the inherent jurisdiction of the High Court. Uh In in the concept of Children series, the most common application would be where you're involving. You invited a court involved the warship provision via section uh one 100 of the Children Act through the inherent jurisdiction. And a common application which some local authorities may well make is a dollar application of deprivation of liberty application via the inherent jurisdiction of the high Court. It is an application that may well be made via the invoking of the inherent jurisdiction. So what we need to be clear about is these various judicial, these various hearing is that we're going to be doing, we need to be clear about who are before. Do we have rights of audience and what do we call the judicial officers before whom you are making at the application. And with that in mind, uh You've got to schedule 10, Section 31 c of the crime And course after 20 13, which then sets out the judges of the family court. And there's a range of judges who could then sit in the family court. So of course, the President family division, he could decide to sit in these courts. Of course, he will sit in the family court and make judgments uh and decisions. Judges of the court of appeal can set their judge of the high court, a circuit judge who's in theory is sitting in circuit and therefore move between the various circuits and the recorder is a part time judge who will also have jurisdiction to deal with some of the more complicated matters as well. And then you've got some of the other judges who you will appear before. So you may well have a district judge who sits in that area or Deputy district judge, a judge of the tribunal. And what used to be a judge, district judge or the magistrate called the old F. P. C. As we used to call it is now of course still a district judge, but now he's sitting in the family court but used to be a judge of the F. P. C. Sitting as a district judge, Magistrates court. We'll also have family cases heard before what was known as the justice of the peace Lay, just laid magistrate now officially referred to as the lay judicial officer. Okay now of course we also have hearings before legal advisers. Uh Clark two justices as they referred to in family in criminal cases, even though they are not officially regarded as as a judge of the family court today. Nonetheless do carry out significant judicial functions. Of course they do have the authority to carry out certain judicial functions and we need to be clear about what we refer to these various personal as. So if you're before lay justices for example a judicial officers. So say you're doing a hearing in the family court before late judicial officers. So Magistrates then you'd be referring to them as a chairperson. So it's Sir madam or Mom. Okay. So if you got three Magistrates and say you've got to female Magistrates and then you've got the chairperson, the person in the middle who is male, then technically you are making your representations to the male Magistrates. So they could be Sir having said that some lawyers feel more comfortable referring Their submissions two or 3 and I do that. I prefer to do it that way and therefore I would refer to them as your worships. I would address or three. Or sometimes people even say your colleagues. Okay. So it depends on how you feel, how comfortable you feel some lawyers will address. Just a chairperson. Other lawyers will Address all three and it depends on how really how you how you view that. Um If you're before deputy district judge or district judge or master for example another type of cases then it will be Sir madam or Mom again as the case may be. Uh So it could be madam or Mom depending on how you how you feel about that and how comfortable you feel using either term if you're before a circuit judge or a recorder. So like say a part time judge then it will be your honor. Okay? So you're you're referring to them as your honor. You do need to try and avoid using the word you if you can solve, for example, if you're before and I just make it up say you're before. He's on a judge smith, for example, today and you were before the same judge, say two weeks ago. Then when you're uh informing the judge or the fact that the matter came before the judge two weeks ago, you shouldn't be saying your honor. This matter came before you two weeks ago. You should be saying you're on a this matter came before you're on a two weeks ago on the 18th of August 2021 or whatever it was. Okay? So try and avoid using the word you try and use their title if you can. It just was that extra degree of respect for the judicial system. Okay? Uh and then if you've got some of the other judges in terms of mode of address, then if you're appearing before High Court judge, so it be my Lord and my lady as the case may be okay. And this is where you'll be saying, would my Lord wish me to address the court in relation to this issue? My lady wished for me to address the court on this. And sometimes you may say when you're responding to a judge may say your lordship May. Can I invite your lordship to look at this? Or can I invite your lordship to consider this point or your ladyship as the case may be when you're before court of appeal in Supreme Court, be my Lord, my lady or your lordship or ladyship as the case may be. Okay. So those are the various elements of mode of address. Yeah, now preparations. So as I mentioned right from the outset, when you're doing advocacy preparation is key as you can imagine, you've heard the expression Preparation is 90% and presentations temps that you will have heard expressions ladder and there is a lot of truth in that the more you prepare in advance, the better you will be at your advocacy, the more confident you will be in your advocacy. It goes without saying practice makes perfect, you know, and and that's what it is. So there's a lot to be said about that. So the more you prepare your case, the more confident you will be and become okay. And I would suggest that preparation starts not from when you open a bundle and you start reading it and and really reading what the facts are about. But even before then, when you actually preparing the documents, so when you actually take on the case, when you actually take on the case on behalf of the client, I would suggest that, you know, that's where the preparation for advocacy comes in preparing court bundles Now, so I would suggest that if you're preparing the preliminary documents, if you are preparing to court bundle and therefore if you are preparing, for example, the case summary, the position statement at the essential reading list. The chronology then part of your advocacy preparation starts at that stage because as you'll be aware, many of you will be aware of the fact that would be practice direction and bundles. Practice direction 27 A which was updated in july 2018. There is an expectation to ensure that those documents are not only filed and served of course, but also to make sure that they are not corners with the page length and what's expected to be contained within them. So putting that together in so far as those documents are concerned. First and foremost, there's a case summary. So they should be able to date case somewhere in the background to the hearing. Such now what's relevant? So to give you an example, if I was they're acting for the father for example, let's say it's a private Children will matter and he's lodged an application for a child arrangements or to specify spending time with otherwise having contact and let's say we are now at the stage where we have a dispute resolution hearing, then I was preparing on his behalf and the case somewhere. So in the case somewhere, I should be setting out what's happened even before we started proceedings. So I could go back to when the position with the difficulties arose between he and his former partner uh what temps? He made preparations to try and resolve matters using non court dispute resolution? So for example was doing attempt at mediation was their parenting plan with the negotiations with the discussions there. So we would we would wish To put that in. And of course in the case on me setting out what applications is lodged on what date. So if it's AC 100 when Dana lodge that and when was the first hearing? So for example, if there was the federal the first human dispute resolution of the first hearing to date for that and in the case summary would wish to set out. Uh but by where summary what the main directions were at that hearing. So at least the court is familiar with what the key directions were. So for example, did we have to schedule two letter in terms of the safeguarding checks And if not was it adjourned after they would have to be done? The court director section seven report or was it wishes and feelings report that the court decided to list a matter of percent impact destruction 12 J for finding a factoring and so forth. So giving the judge's summary of what's happened, not only helps the judge to think right, this is where we are today, but secondly what it does, it helps you as the lawyer to prepare for your advocacy. So when you do then go before the court and the judge says, Mr Mahmoud, can you bring me up to speed or can you tell me where are we? Can you give me a background of where we are, why we are at the stage we are at least a case summary helps me to be able to give the judge that background. But because I will have prepared that case on me in readiness for that hearing, I've actually partially prepared my advocacy as well. All right. So, it's very, very important to make sure that your advocacy prep starts from when you actually preparing the documents, not from when you pick up the bottle and you start reading it. Mhm. also practice stretching 27 8 and talks about the other documents that should be in the bundle. So, state of issues. So, what the issue is to be determined at the hearing and therefore what's agreed. What's not agreed and what are the particular issues that you would be invited to court then to make a determination on at that particular hearings? That's the other thing. That of course, the court would find really necessary. And as you know, with these hearings, we need to have a position statement by each party which summarizes the order they're seeking or direction seeking not just for that hearing, but also at any final hearing. So very, very important to make sure that position stance are found. So that if I'm for, say the applicant to have then fired my position statement on behalf of my client. But I've also got the position statement respondent at least I know what their position is then. So therefore I can preempt that and that that enables me my submissions that are making in my advocacy to preempt what the other side is going to be saying in terms of their position and to be able to deal with it. So to give you an example, let's say, I am dealing with a return date for a personal protection injunctions to say. And for the applicant we've got a without notice normal station order, let's say. And the matter is that listed for return data have to say a few weeks so that at that return date my instructions are to pursue a longer term normal station order. But I'm also instructed to apply for and to pursue an occupation order for which we have lodged an application also. So the respondents been served. The respondent turns up at court has got the benefit of lawyers and respondent through their lawyer, has in fact fired a position statement and end up position statement prepared by a lawyer. The respondent is suggesting that rather than having a contested hearing rather than having to go and give evidence, the respondent is suggesting that dramatic can be dealt with by way of the respondent giving an undertaking to the court pursuant to section 46 of the Family Law Act of 1996. Now, because the position is timed refers to that, and and therefore, enables me to know what the respondent's case is going to be. That internal allows me to take instructions from my client to see what he's a her view on this is and of course, even though the undertaking isn't something that is dependent upon the other party accepting an undertaking is given to the court. So, it's the court decides whether to accept it or not. At least I can give my clients view as to whether she would suggest or he would suggest that the court should or should not be accepting the undertaking. So, because the positions types have fouled and I know what the other side's cases in my therefore, submissions. When I'm therefore before the court advocating, I would be able to say to the court in my opening and uh my submissions, I would be able to say something along the lines of you wanna. The applicant understands from the response position statements that the responses suggesting that uh the court should be accepting He's undertaking pursuant to section 46 your honor, the a position of the applicant is that although of course, it's a matter for the court to decide whether to accept the undertaking, bearing in mind that the respondent has the applicant would say used or threatened violence towards her, and that it would be inappropriate to accept an undertaking, given that that's the position, the applicant would put it, the applicant does instruct me that the court should in the circumstances not be accepting the undertaking. And therefore my instructions are that the court should be minded to make the normal station or two in the circumstances Pursuant to Section 46 3 a. or the family law from 1996. So many of you will know about section 46 3 a. Which which looks at that element. So you can see by knowing what the other side's cases. It enables me to be in a much stronger, more confident, more able way to be able to put forward my arguments, but also to preempt what the other side is going to be saying potentially and therefore to address that as well. So again, like I said earlier, your preparation starts from when you're preparing the documents, not from when you're reading them from that stage. And also the you practice direction does say that there should be fired and up to date technology if the case will be referred to is insufficient. Okay, so those are somebody political documents, but then there's others as well. So if you know that the matter is going to be contested and there is a need in appropriate cases then to file a skeleton argument that should be in a separate lever arch file. And also it should be containing the authorities that you're relying upon. So if you for example, referring to case law, it's very important in your uh separately for each bundle then or electronic bottle if you're doing that to make sure that you pull you put the full case law, throw it in there. So if you're referring to say the case of re Bs for example which many of you are familiar with is a huge case that we use in public child care proceedings. Re B. S. It's a case of june 2013 by the court of appeal leading judgment handed down by the then President of family division Sir James Mumby then if you're referring to that then and you're doing skeleton arguments then you should be printing off a full copy of the whole judgment which is a very lengthy one and you should be putting that in the leave large. Okay not just the head note, not just a summary of it, not just a page or two of the bits you're using should be the whole judgment because of course the bit that you feel maybe relevant may not necessarily be what the judge or the others I think so. Hence why it's important to ensure that the full judgment is printed and then import in the bundle. You should also be filing the list of essential reading so what the key documents that you would wish for the judge to read for that particular hearing and also setting at the time estimate. So like I say you should be setting out copies of any authorities relied upon in a separate composite bundle and agreed between the advocates if possible. And then the other thing which uh the Practice direction 27 8 provides for which was the amendment that came in July 2018 Is these polluting documents are not to be exceeding a certain length unless the court says otherwise. So, for example, if I'm preparing my clients witness statement states in a private Children or case and we're doing a narrative witness statement, then it shouldn't be exceeding 25 pages excluding the exhibits unless the course as otherwise. So again, very important to make sure that we can be as concise as we can be when we're preparing for these hearings. Now, one of the other things in readiness for the advocacy when you do go to court is like I say, a lot of it is not just reading a bundle at that stage, but it's beforehand. So, if you know that you're going to be going to court and you're going to be instructed seeking to instruct an expert, then, of course the preparation of the advocacy is from the point at which you want them putting into motion the steps with a view to an instruction that expert. So, for example, have you complied With practice direction 25 B 25 c in particular with supplements part 25 of the family procedurals. Iii have you approached perspective experts. Have you got CVS from the have you exchanged those with the other parties? Have you spoken to the proposed expert about whether what you wish to instruct the monies within their remit? And if so, have to confirm that. Have you asked them the particular questions that you're looking to seek permission to instruct? Have you spoken to about the cost ing's is the costing within the legal aid eligibility remuneration guidance? Or do you have to be looking to apply for prior authority? Have you liaise with the other parties to see if they will agree? Have you looked at the law on this or that? Because you may well be contested? And we looked at the law to remind you about what the test is, that the judge will have to consider this island whether to lay to instruct the expert. So this is where, like I say, your advocacy, the prep for that comes from not the point at which you're reading the bundle, but in fact, even before then, when the necessary paperwork is being compiled. So, like I say, the point at which you Are then comply with part 25. So, getting the letter together, getting the application lodged liaising with the other parties, uh being aware of the test, which essentially could be that you Are looking to instruct the expert pursuant to section 13, subsection six of the Children Families Act, where you're needed to satisfy the court that the instruction of that expert is necessary to assist the court to resolve to pursuing is justly or is it an application under 38 6 and that's where in a Children Law case, for example, in a public Children Law case, you need to be clear in your mind that is it an assessment principally of the child? And is it an assessment as opposed to therapy otherwise? And if its principle of the child and arguably it would be within 38 6 using the test under section 38 7 B of the Children Act. Whereas if it's not an assessment principle of the child, but say, of the parent takes a psychological or psychiatric assessment of the mother, For example, then that would be pursuant to section 36 of the CFA. 2014. So as I said, you got to be clear with the funding and what are you going to do if the expert is going to be charging more than what the remuneration guidance provides for? How will you deal with that? Have you applied for prior authority? Are you looking at alternative ways to fund it? For example. So you got to think about that as well. Now, once you get to court, one of the other aspects to bear in mind, of course, it's very, very important to ensure that there is appropriate discussions at court and negotiations that court, I find that certain in care cases, for example, because there's a number of lawyers there and you get to know the lawyers after a while because it's, it's often the same lawyers on different cases because you find cape settings it's a very specialist area would suggest that family law and sometimes you do have the same lawyers who will be often do dealing with these cases. Even though that's an advantage. That can also be a disadvantage because then you get to know people you get obviously friendly with people. And that's where sometimes in court without even realizing it, you could be mixing inappropriate with other lawyers. So it's very, very important to ensure that you keep your business strictly separate from your friendship and associations with other professionals. So when you are in court and I appreciate since March last year, many of us are not doing as many in person hearings because of covid and more and more people are doing remote hearings. Although no, we're doing more hybrid hearings in in person hearings. And removing that way as well. But when you are in court, of course, people will see each other. They'll have a discussion. They'll see what they've been up to. But remember when you got clients that it's very important not to send them the wrong message. So if I was so representing mother, he would be wrong for me to go and huddle together would say the local authority lawyer, the child's list and so forth. Because what message does that give to mother? So I need to show that level of independency when I'm in court do negotiations be prepared to set out what your client seeks in terms of all the sort and why? So obviously need to be robust when you're setting out your position and don't commit to anything significant doing discussions and negotiations without your client's consent. So, for example, if your for a local authority and you're in a meeting at court pre hearing discussions and but there is a request to increase the contact and say the social worker is not there at that stage. Of course he shouldn't be committing to that unless you've taken instructions. You may say, look, I'll take instructions, hopefully shouldn't be an issue. But I will speak to my client and I come back to those are the kinds of things you need to be doing and take copies of relevant case law authorities relied upon if necessary. The judge may need you to refer to those and hand in any documents there. Okay. Not that even if the parties are agreed as you know, ultimately, it's up to judge to decide what order if any, to make. So sometimes when I've gone to court either remotely otherwise and we've agreed, I make the point of saying to judge that we have used the time constructively we have come up with a number of possible orders or directions, but I do also make the point that of course it's even though this a tentative agreement, uh we are invited to court to approve the terms of the order. So we have to bear in mind that even though we've agreed that the lawyers between ourselves, it doesn't mean that the judge would ultimately agree. And of course, therefore, it's very important for me to take the judge threw the order and make sure that the judges contained with the various elements of that and the directions. And therefore, as I am in court, very, very important to discuss with the other parties as to what directions are required. So I should be drawing up some agreed directions for the court and in handy knows in so whether I hand that into the usher in court, whether email it in nowadays, of course, with the increase in use of technology, many of us are taking our laptops and ipads and other documents into court. So uh many and therefore because of that, typically when we're doing a hearing will be doing the order on our laptop and then once we've agreed elements of it as far as we can, we'll email it into the judge and then we'll have that order in court and I'll be taking the judge threw that literally through the laptop. So that's what we would be doing as opposed to traditionally, whereas, you know, we would be writing at the order in in pen and then we'd be going through that way. So as you can see, obviously technology has helped massively going forward in that regard. Now, when when you are in court, uh then let's assume that you're now doing a hearing. So the applicant will open the case. Okay. So what I would suggest, it's very important when you are then over the case, whether this is a directions hearing, whether this is a case management hearing, whether this is a contested hearing. Otherwise, these principles that are going to be going through with you very much apply across the board and therefore you'll open a case. You need to ensure that even though if you're in court, the usher may have taken down the names of water lawyers, it's always very helpful to invite the judge uh as to whether or not you should be introducing the parties. Of course, let's say you before circuit judge or recorder in the courtroom. So I'll be standing the other lawyers will be seated and I would open by introducing myself and also inviting the judge as to whether it would assist the court if I introduced the other parties or the other lawyers. Representative, respondent parties and then the clients and the other parties in court. Now when you are doing the hearings, it's very important not to give your own personal opinions in most cases. So a lot of the time when you're making submissions, you're making submissions on behalf of your client. So that's why it's very important to be able to use words like I submit or the applicants cases or the respondent would say or the respondent instructs me what the respondent would response cases or my instructions are because remember you are the mouthpiece for your client. Okay. The case isn't about you, it's about your client. So there for your submitted on their behalf. So try and get into that mindset of doing just that. Having said that, they will sometimes be situations where we will be giving your personal opinion. So for example, if I'm before the judge and let's say it's a case where saying a care case, for example, we've assessed the grandparents as potential special guardians but we are very close to Expire of the 26 weeks that many of you will be familiar with. Now I'm suggesting to court if I'm for local authority that we need a period of testing. So we want to wish to place a child with the perspective special guardians For say eight weeks and that will inevitably mean that we won't be in a position to be able to say whether we support the placement with the perspective special guardians uh until that testing period of some eight weeks has been utilized and that's where the question is, do we extend the proceedings. So if the judge was to ask me to say, Mr Mahmoud, can you help me with this? Do I have jurisdiction to extend the proceedings or what's the current position on that. Now, that's why I shouldn't need to turn to my client and take instructions on that because that's a legal issue. That's based on legal guidance principles. So I should not alone many of you who do care proceedings will know that the leading authority on that issue is the court of appeal judgement in re PS. It was A case in July 2018 where the president of the family Division Sir James Mamby at that time made it very clear that in a situation like that there are no if somebody is if there is a need to test the placement and it's a legitimate exercise of the courts need to do that then we should be extending the proceedings. We shouldn't be concluded on for example a care order on that basis. So I should be able to quote the law, should be able to tell the judge the law and I should be giving my view based on my reading and interpretation of the law as to whether the judge can or cannot do that. Okay, so there will be situations, we will of course give your personal views as well. So as I said, when you are in court, very important to discuss with the other parties as to what directions are being sought and try and agree as much as you can and then email it in or handed to the usher to put forward under the judge. Okay, now as you are doing the hearings, as you'll appreciate you may well be nervous. That's clearly understandable, but try and relax as best as you can. So if you're standing, what you're gonna be doing with your hands, you shouldn't be putting in your hands in your pocket for example. So do you clasp your hands like I've done here for example, that's what I tend to do or clasp my hands to avoid me fidgeting too much and doing this for example, some lawyers will hold a pen for example but try not to fiddle with it. Okay, so initially something some lawyers may put one arm behind their back for example and hold hold a pad with the other so you need to be in some kind of a comfortable setting. Okay? So try not to fiddle with your pan and so forth because other people will notice. Okay, when you are referring to the court to any aspect of the bundle of papers, then refer them to the bundle, reference the paragraph number and so forth and wait for them to turn to it. If it appears that they are turning to that they may not always do so, but give them time to turn to that if needs be make it very clear what bits from the bundle you are specifically referring to and also ensure that you have found a relevant reference before you proceed on that basis, that kind of ties in with that right now a good, when you are making your submissions, some lawyers take the view that they need to write out a lot of their submissions or any type it out. The problem with that is you're not really going to be able to read out your submissions in that way. Okay. Because if you imagine if you've got a set of documents that you're prepared, then if you imagine you're literally reading through that and its monitoring and it's, you know, the international voices are saying and the judge, you may lose a judge, you may lose your audience and your struggle to be able to put your point across. It's better to have a list of main submissions if you can and then cross reference with page references to bundle support keywords in. And then that enables me you then to expand on those things as you're making your submissions. It allows you to make eye contact with the audience with that in mind as well with the judge. And also what it does is if the judge has questions that they wish to ask you and of course by then making submission by having keywords and main submissions there. It allows you to be more flexible in terms of answering that question than going back to your uh your submission. So that's another way to do it. Sometimes it's helpful to highlight text. Maybe use a subject divider. Maybe use yellow stickies or the holistic is maybe highlight for example. So try and keep a fairly structured format as you can because that just makes you a lot easier as you do in the submission rather than just a lot of paper there, which can of course make it very difficult then to be able to use that. All right, whilst that court make sure you leave room on your preparation also has to add an extra material given in a conference and also during the hearing. So for example, if you're going to court, sometimes it helps to literally divide your page uh that you're writing on half uh in the middle, so that on the left hand side you would be writing out my questions, my keywords, my submissions and keep bullet points. And on the right hand side of that page, I would leave blank. So as I'm asking the witness questions or or as I'm making certain submissions and then there's new information that's come to light or the judges asking questions or the other side is raising things than the blank uh page on the right hand side enables me to put some information in there. And I tend to do that using a different color pens sometimes just to make it a bit easier. So wide margins and a line down the middle of the page so that on the right hand side you can then put some notes and is often a very useful tool to use very important to listen two the evidence and take a note in examination Chief, as I mentioned later, because you may have to use that later and cross examination. Okay. And when you are making submissions at court, it's very, very important to be clear as to the law behind you arguments. Okay. So, you need to use the law. You need to be clear about what submissions you're making. Now, advocacy is not an exam you're not required to know and quote complex areas of law by heart necessarily, although it does help to be able to have the law at your fingertips without going to look it up in research it. But the judges are necessarily expecting you to quote everything by heart. But at the same time, what the judge doesn't want is for you to have to refer to legal textbooks or legal material during your submissions. The judge needs to know that you're, well, first of the relevant areas. So that's where you'll be referring to case law. You'll be referring to regulations. You'd be referring to other elements which will be coming into play in due course. And, uh, your submissions, as I mentioned earlier, your submissions and your advocacy to get confidence in it. It starts from when you start preparing your documents, but also to give you confidence, the more you are aware of the law keeping up to date with the law, it's going to be much easier for you than when you're making your submissions to justify and argue those points bearing in mind that, you know what the law is behind that. So, you need to have a very good draft of the interrelationship between the legal principles without the likes a hammer to refer constantly to your notes. Now linked with that very, very important to ensure that there is good eye contact. Okay? And it's very important with remote hearings. It's I would suggest not as easy because many of us won't necessarily be staring at the camera, because it's only when you stare at the camera, like I'm doing now that you've got immediate, you've got perfect. Uh I contact in which the audience, but of course, staring at the camera means you're staying at that light, as opposed to maybe the audience seeing them your notes, your what if it might be your statement and so forth? Was it when you in court? Of course, it's easier to make high contact in court because you're actually looking at the other party. But I contact is very important at the same time, try not to stare at the person. So make contact and then you'll be looking at your notes and and make eye contact and do it that way. And I always find that in preparing for advocacy, you obviously need to know the relevant law. You need to know the facts and you need to be apply applying that. Okay? So, you need to know what it is applied to facts and come up with some kind of a reason, suggestion going forward. And sometimes it does therefore help to write at key points of what you intend to say. But as I mentioned, try not to get into the habit of writing out your four speech because you won't be able to say what you want in that order. Okay. So be prepared to vary your submissions in light with how the matter develops and hence of fluid range of key submissions with references to bundle page numbers is much better. There will be areas that are very much in dispute from the outset, which may only be resolved at court. So there will be some matters when you go to court where you simply haven't been able to resolve the matters and that's where there is inevitably going to be situations where you can only deal with that by, uh, thinking on your feet. Why is you in court? Okay, so bear that in mind as well. Right. So that brings this first part of the, the full part session to an end where I've spent some time looking at preparing for advocacy and a leading opportunity and uh, doing the, the opening the case as well. So I hope that's been quite useful four years so far. So what we'll do is, uh, let you take a break and then hopefully then you can put on session two and then we'll follow and continue from there. So thank you very much indeed for listening. and I'll speak to you soon. Thank you very much. Bye for now.
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