- Know where you are going!
- Legal reasoning and argument
- Big picture
- Case theory & theme
- Witnesses of fact
- Opening submissions
- Examination in chief
- Closing speech
- Psychology of advocacy
- Advocacy in the Court of Protection
‘How are things down south Mr Rumpole?
Down south? Much as usual. Barristers lounging around in the sun. Munching grapes to the lazy sounds of plucked guitars.’
Forever Rumpole by John Mortimer.
‘Keep it simple. Give it life. Be brief… Irresistibility… is the hallmark of the truly great advocate. An irresistible argument is just that – an argument that is irresistible. The tribunal cannot fight it. It sweeps them happily, effortlessly, to your conclusions… To be irresistible, an argument is three things:
- Reasonable, not emotional
- Softly delivered, and
- Common sense…
[The] most persuasive feature of any case is if it accords with common sense. If you can find the common sense position in any argument, then you have the beginnings of something irresistible. You then weave around the common sense position careful words and a careful delivery… The irresistible argument is usually the easy, simple argument. Always ask yourself, what is the easy, simple argument? Where is the common sense in this case?’ (Morley).
‘Spontaneity is the key that unlocks the door of the listener, because that which is spontaneous is honest and is heard as honest. And if it is honest it convinces. If it is honest it moves the other side, to our way of thinking. If it is honest it wins. In the end, the product of spontaneity wins… When we’re tied to our notes, or worse, when we’re frozen in the words of a memorized script, the sounds, the language, the whole dramatic movement is lost… That which moves us is the inner voice that people hear in themselves and pass on to us.’ (Spence).
‘There are two basic aspects of good courtroom advocacy. First, is the ability to address the court using argument to persuade the court to see the case your way. Secondly, there is the ability to ask the right questions of witnesses to elicit information which strengthens your case or weakens your opponent’s in the eyes of the court.’ City Law School ‘Negotiation’ manual by Margot Taylor.
In his book the Business of Judging, the late Lord Bingham observed, ‘The common law judge… is not concerned with establishing the truth of what did or did not happen on a given occasion in the past but merely with deciding, as between adversaries, whether or not the party upon whom the burden of proof lies has discharged it to the required degree of probability… The Court of Appeal has none the less defined the English judge’s object as being, “at the end to make up his mind where the truth lies”… While the burden of proof always exists, few substantial cases turn upon it and in making his factual findings the judge is usually expressing his considered judgment as to what in truth occurred.’
‘After hearing the evidence the judge must decide where the truth lies, decide any points of law, and give judgment… [The] judge is guided by any inherent probabilities, contemporaneous documentation or records, any circumstantial evidence tending to support one account or the other, and impressions made as to the character and motivations of the witnesses.
Generally the judge is constrained by the pleadings, and has to make decisions on the pleaded issues. There are limited exceptions. A judge should not be deterred from deciding a case on the correct basis, where through incompetent presentation, the underlying legal cause of action has not been identified by a party’s representatives. The more usual course is to require the correct basis of the claim to be formulated through amended statements of case, which can be done even at the end of closing speeches. The claimant has the burden of proof on the balance of probabilities. It is for the claimant to prove the case, and the judge should be aware of too much speculative reconstruction. The law operates a binary system in which the only values are zero and one. There is no halfway house for the judge who concludes there is a real possibility that a fact in issue took place. If the party with the burden of proof fails to discharge that burden, the fact is treated as not having happened. If the burden of proof is discharged, the court treats the fact as having happened.’ (Blackstone’s).
‘Judges can be persuaded only when three conditions are met:
(1) They must have a clear idea of what you’re asking the court to do.
(2) They must be assured that it’s within the court’s power to do it.
(3) After hearing the reasons for doing what you are asking, and the reasons for doing other things or doing nothing at all, they must conclude that what you’re asking is best – both in your case and in cases that will follow.’ (Scalia & Garner).
Advocacy is the art of persuasion.
Being an advocate is about winning within the rules.
‘[Advocates] have two primary duties: a duty to represent the client and a duty to the court. “He wishes to promote his client’s interests. But he also”, as Sir John Donaldson MR noted in 1985, “has an interest in the proper administration of justice, to which his profession is dedicated, and he owes a duty to the court to assist in ensuring that this is achieved.” The duty owed by the advocate to his client is far from absolute. The scope of the advocate’s duty to the court is very significant in any assessment of the morality of his function. The potential and actual conflicts which these duties create, and the competing demands which they make on the heart and mind of the advocate, add to the terrors of the profession… Once the case reaches court, the advocate is required to keep his personal opinions of the merits of the case (legal or otherwise) to himself and not to make them the subject of his submissions. The advocate’s duty to his client authorizes and obliges the advocate to say all the client would say for himself (were he able to do so). This is often pitifully little once the relevant and the helpful have been stripped from the inconsequential or damaging aspects of the client’s account of the history of the matter. The advocate is entitled to take all possible points, bad as well as good. He has no right “to set himself up as a judge of his client’s case” and should not “forsake [his] client on any mere suspicion of [his] own or any view [he] might take as to the client’s chances of ultimate success.” As Baron Bramwell explained in 1871, “a man’s rights are to be determined by the court, not by his [solicitor] or counsel… A client is entitled to say to his counsel, I want your advocacy, not your judgment; I prefer that of the court”…
It is central to the function of the advocate that “even if a legal proposition is untenable, counsel may properly urge it in good faith; he may do so even though he may not expect to be successful, provided of course that he does not resort to deceit or to wilful obstruction of the orderly processes.” Of course, the fact that an advocate may properly take hopeless points does not mean, as any judge will make very clear, that it is wise or in the interests of the client to do so. And there are limits to the duty of the advocate to his client in this respect…
The advocate does not endorse the views or beliefs of his client. He is, as Lord Macmillan explained, there to “present to the court all that can be said on behalf of his client’s case, all that his client would have said for himself if he had possessed the requisite skill and knowledge… His duty is to see that those whose business it is to judge do not do so without first hearing from him all that can possibly be urged on his side….
While the case is in court, the opinions of the advocate are not of central relevance. The advocate is paid to argue the point, not to decide it. He should not assert a personal opinion of the facts or the law to the court unless invited to do so by that court. If so invited, he should politely remind the court that he is there only to perform his function as an advocate. He is therefore obliged to conceal from the court his own opinions (favourable or unfavourable) of the merits of the case, the veracity of the witnesses, the wisdom of the judge, and (subject to his duties to the court) subsume them all to the furtherance of the goal – victory for the cause, petty or wrongheaded, dangerous or wicked though it may be.’ (Advocates).
‘A trial is not an exercise designed to discover the truth. The rules of evidence are mainly designed to exclude. They often operate to prevent the evidence actually presented from showing the truth of the matter at all … The Judge is not an investigator but more like an umpire … What we are doing as advocates is trying to get the fact finder to arrive at an opinion, an opinion in our favour … our objective at trial is not the ultimate truth but an opinion in our favour…’ (Evans).
The aim of the advocate is to win at trial within the rules of law, evidence, and professional ethics. ‘The means of winning is by being persuasive… Rightly or wrongly, adversarial advocacy is not really an enquiry into the truth. Perhaps the adversarial system should be about finding out what really happened. But it isn’t. Instead it creates a polite contest. The contest is this: while a judge will seek out the truth as best they can, the advocates use their skill to test the evidence, and to control the way the evidence emerges, and then comment in closing on whether a case has been proved to the necessary standard of proof.’ (Morley).
‘The task of the advocate is to be argumentative, inquisitive, indignant or apologetic – as the occasion demands – and always persuasive on behalf of the person who pays for his voice …when making submissions to a judge … or cross-examining hostile witnesses, the advocate is required to entice, to flatter, [and within the boundaries of what is ethically permissible to ridicule and] to insult, all in order to advance the cause for which he is instructed The professional function of the advocate is, essentially, one of supreme, even sublime indifference to much of what matters in life. He must advance one point of view irrespective of its inadequacies. He must belittle other interests, whatever their merits … It is not for counsel appearing in court to express equivocation, to recognize ambiguity or to doubt instructions. His client is right and his opponent is wrong. The wider consequences can be left to the judge. The fundamental role of the advocate is not to enlarge the intellectual horizon. His task is to seduce, to seize the mind for a predetermined end, not to explore paths to truth…
But the Barrister knows that there are limits to acceptable advocacy, problems concerning the extent to which he can and should act as a mouthpiece of his client. He appreciates that there is a fine line between, on the one hand, brilliant advocacy which focuses on the strength of his case and, on the other hand, sharp practice and sham theatricals which mislead the court.’ (Advocates).
‘Although it is typically the position in an adversarial system that the parties decide what evidence to present to the court, the advocate cannot knowingly present false evidence nor withhold material evidence (at least it would have to be disclosed to the opponent before the hearing)… Rule rC3 makes it clear that the advocate must not mislead the court, knowingly or recklessly, or attempt to do so… Also, the advocate must not make submissions to the court or any other sort of statement which he knows are untrue or misleading. If his client instructs him to do this, he must refuse. This could cover both legal and factual points. More plainly fact-based is the requirement not to ask a witness questions which suggest facts that the advocate knows, or is instructed by his client, to be false or misleading (rC6.1). This is most obviously demonstrated in cross-examination, where the client is putting his client’s case to an opposing witness … It is important not to confuse knowledge with belief. The guidance under these rules (gC6) makes it clear that the advocate does not need to turn detective or pretend to be omniscient; you do not have to believe that what your client tells you in his instructions is factually true …
[Furthermore] the advocate must not abuse his role. This requirement is specifically stated in rC3.2 and expanded upon in rC7.1-4. It would be an abuse of one’s role to make a statement or ask a question merely with the aim of insulting, humiliating, or annoying a witness (or any other person). If you have a different aim but your question or statement may have the incidental effect of insulting, etc, you will not be prohibited from asking it.
[Barristers] must maintain the standards of honesty, integrity, and independence which run throughout [the provisions of the Bar Standards Board Code of Conduct for Barristers. Specifically] ‘In order to act with honesty and integrity, the advocate must not:
- knowingly or recklessly mislead anyone or attempt to do so
- draft a statement of case, witness statement, affidavit or any other document which contains;
– any statement of fact which is unsupported by his client or by his instructions
– any contention which he does not consider to be properly arguable
– any allegation of fraud, unless the advocate has
(i) clear instructions from the client to make this allegation and
(ii) reasonably credible material to establish an arguable case of fraud
– any statement of fact which is not what he reasonably believes the witness would say if giving evidence orally (when drafting witness statements and affidavits)
- encourage a witness to give evidence which is misleading or untruthful
- rehearse, practice, or coach a witness on the evidence that they will give
- communicate about the case with any witness (including the client) whilst they are giving their evidence, unless the opponent or court gives permission to do so
- make or offer any payment to any witness which is contingent on the evidence they will give or the outcome of the case
- propose or accept any fee arrangement which is illegal.’ [Ethics].
‘A great advocate is not one who argues loudly and with noticeably greater intellect. Rather it is the one who says things which seem right. Easy. Just plain right.
It is as if the advocate is not there. There is only one argument… and the answer to the argument is obvious… But of course it was wasn’t obvious, until the irresistible advocate explained why, and makes it look as if there was never an argument in the first place.’ (Morley).
As the late Mr Justice Hunt said, in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’,
‘Don’t [embark] on your case like Christopher Columbus, who on his voyage of discovery, didn’t know:
- where he was going;
- when he arrived, where he was; and
- and after he left, where he had been!
Know where you are going, and when you have got there sit down. Set out what you want in paragraph 1 of your skeleton argument, “the Claimant’s case is…” Set out your stall, what you are asking for and want the judge to do. Say to yourself – “what am I doing here? What is my case?” Your opening is the route-map for your case containing the clearest sign-posts to point the judge in the right direction.’
The following advice set out in ‘Court of Protection Made Clear’ edited by Mr Justice Keehan applies equally to civil litigation, and in particular to interim applications and case management conferences.
‘… if you are asking the court to give you sufficient time to determine issues then you have to arrive in good time so that the court, when the hearing commences, knows exactly what the issues are between the parties and how each party suggests they should be resolved. It may even be that agreement is reached between the parties before you go in and see the judge… The judge will expect you to have all communicated with each other before you go into court in order to try and narrow down the issues that the judge has to consider that day… You are simply wasting your time and ultimately the court’s time if you are not ready when the case is called in simply because no one has spoken to each other… Whatever the issues may be between you and the other parties, be pleasant to each other. Unpleasantness rarely produces positive outcomes for anyone. If you are pleasant and speak in a calm and rational manner you are most likely to engender support from other parties and most importantly the judge. Turning up at court being belligerent by not speaking to the other parties but saying you only want to speak to the judge will not help further your case. Politeness and manners cost nothing but the benefits may be immense… Ultimately remember that the court only wants to have to make decisions about matters which cannot be resolved amicably between the parties. Essentially it is the last resort if the court has to make orders. Attending court early gives you the opportunity to speak to the other advocates and parties in the case to see whether you can resolve what may have been fundamental issues between you… One of the first things a judge will ask all parties when they attend before them will be whether any agreement has been reached on the issues which the judge is being asked to decide. If the judge is told at that stage that none of the parties has spoken to each other prior to coming to court, you must expect the judge to show a level of exasperation. Remember court time is precious… It is equally important to remember that the order the judge may make may actually not make anyone happy. If a compromise can be reached that everybody can live with, that is often so much better as a way forward… If all the issues are agreed before the hearing starts, the judge may endorse a consent order that has been drafted by the parties.’
‘The truth is that in practical affairs – such as the proof of facts in legal actions – the mode of reasoning is not the same as it is in scientific subjects, where deductions are drawn from general principles. In geometry, for example, conclusions are drawn by strict logical deduction and are established by scientific certainty: in practical affairs the aim is to reach what is sometimes called a moral certainty – or a state of conviction – and in the process the weight of probabilities, or the convergence of probabilities, plays a dominating part. Probability, therefore, is an inherent factor in legal argument, and the appeal to probability is not accidental but inevitable… It is fair to say… that in any question of disputed fact the arguments will be based on probability… As an aid to the formulation of arguments [on the facts], it may be useful to reflect on the established facts from certain general points of view. For instance, useful starting points can be obtained from consideration of the motives and drawbacks of an action; from opportunity and method; from causes and effects; from antecedent and subsequent conduct of events; and from the collateral circumstances which distinguish a particular act or happening. In nearly every legal argument, the facts are approached from one or another of these angles… [There] are several courses which may be taken in refuting an argument based on probability. The facts on which it rests may of course be denied…The strongest argument of all is to raise a counter-probability…
Arguments on questions of law are a very different matter from arguments on the facts. No questions of probability arise here, for law is a science, that is to say a body of general principles, though it is not an exact science like mathematics… An advocate who is presenting an argument of law hopes that his submissions will form the foundation of the judgment of the court. Therefore the arguments should be sound and not specious, and formulated on much the same lines as the judge would formulate them in his judgment… The first stage therefore, is to formulate the general propositions of law which the court is invited to accept. The next stage is to offer an array of cases – or it may be only one or two – in support of these propositions. If cases have to be distinguished, they should be distinguished on principle, so as to show a clear dividing line with groups of decisions on each side of it. The only exception (distinguishing on the facts) is where it is submitted that a particular case or group of cases represents an anomaly, which is not consistent with the principle, but must be followed on grounds of authority, though it ought not to be extended. Failing any principle which governs the case, the best line is the argument from analogy… which is in fact the main builder of our common law… Often the problem is not so much to determine the correct principles of law as to apply them to the facts of the case: and this may involve questions of degree… Such [problems are] individual to the particular case [and] it is really a question of interpreting the facts in the light of known standards of law. The judge has to decide according to his practical judgment, and the proper course in argument is to suggest the sort of considerations, on the facts of the case, which will guide him to a sound conclusion…
By convention, the construction of a statute or a document is a question of law for the court, though in reality it is a question of fact – or the interpretation of a fact – dependent on the facts of the individual case, and the decision in one case is no more than a general guide in deciding another. The judge decides according to his own practical judgment, according to the various indications in the document… The groundwork in such a case is to outline the scheme and background of the statute or document. The rest of the argument will be taken up with drawing attention to the sort of considerations in the document on which the judge may act; and also to drawing out the various probabilities which can be raised in favour of the construction contended for.’ (Munkman).
An advocate’s arguments must make logical sense. His legal and factual premises must be well founded, and his reasoning must logically compel his conclusion.
‘Sound reasoning is the basis of winning at argument. Logical fallacies undermine arguments… Many of the fallacies are committed by people genuinely ignorant of logical reasoning, the nature of evidence, or what counts as relevant material. Others, however, might be committed by persons bent on deception. If there is insufficient force behind the argument and the evidence, fallacies can add enough weight to carry them through.’ (Pirie).
‘The very first step in making an argument is to ask yourself what you are trying to prove. What is your conclusion? Remember that the conclusion is the statement for which you are giving reasons. The statements that give your reasons are your premises… [A] properly formed deductive argument is an argument of such a form that if its premises are true, the conlcusion must be true too. Properly formed deductive arguments are called valid arguments… Using the letters p and q to stand for declarative sentences, the simplest valid deductive form is
If p then q.
This form is called modus ponens (‘the mode of putting’: put p, get q)… To develop this argument, you must explain and defend both of its premises, and they require quite different arguments. Modus ponens gives you a way to lay them out clearly and separately from the start. A second valid deductive form is modus tolens (‘the mode of taking’: take q, take p).
If p then q.
Not – q.
A third valid deductive form is ‘hypothetical syllogism.’
If p then q.
If q then r.
Therefore, if p then r.
Hypothetical syllogisms are valid for any number of premises, as long as each premise has the form ‘If p then q‘ and the q (called the ‘consequent’) of one premise becomes the p (the ‘antecedent’) of the next.
A fourth valid deductive form is ‘disjunctive syllogism.’
p or q.
A fifth valid deductive form is the ‘dilemma.’
p or q.
If p then r.
If q then s.
Therefore, r or s.
[Arguments by reductio ad absurdam, that is ‘reduction to absurdity’] (or ‘indirect proof’, as they’re sometimes called) establish their conclusions by showing that assuming the opposite leads to absurdity: to a contradictory or silly result. Nothing is left to do, the argument suggests, but to accept the conclusion.
To prove p.
Assume the opposite: Not-p.
Argue from the assumption we’d have to conclude : q.
Show that q is false (contradictory, ‘absurd’, morally or practically unacceptable… ).
Conclude: p must be true after all.
Many valid arguments are combinations of the basic forms… Once you have spelled out your basic idea as an argument, it will need defence and development. For anyone who disagrees… most of the basic premises will need supporting arguments of their own. Each premise therefore becomes the conclusion of a further argument that you need to work out… Too often, when we make arguments, we concern ourselves only with the pro-side: what can be said in support… [It is better to think about possible problems yourself] and to hone your argument- maybe even make fundamental changes – in advance. In this way, you also make it clear to your eventual audience that you have done your homework, and you have explored the issue throughly and with a somewhat open mind. So always ask: What are the best arguments against the conclusion you are working on? Most actions have many effects, not just one… If you are defending a proposal, it is not enough to show that your proposal will solve a problem. You must also show that it is better than other plausible ways of solving that same problem.’ (Weston).
‘We talk about the reasoning being valid and about the premises or conclusions being true. It is important to notice that the reasoning may be valid though the premises and conclusions are both false, and that the reasoning may be invalid though the premise and conlusion are both true. Valid reasoning from a true premise, however, must lead to a true conclusion. Invalid reasoning from a true premise may or may not lead to a false conclusion.’ (Emmet).
‘Whatever question or problem is in our mind, if we pose it as a legal question or problem, we seek a solution or answer in terms of a proposition that seems sound as a matter of law, at least arguably sound, though preferably conclusive. To check whether it is sound or genuinely arguable, or perhaps even conclusive, we think through the arguments that could be made for the proposed answer or solution. We can then test the arguments we have developed by constructing all the counter-arguments we can think of. If this be said on one side of the argument, that will be said on the other side. By thinking out what seems to be the strongest argument or strongest arguments on that side, we test the strength of the arguments on this side. By figuring out the counter-case they have to meet and, if possible, defeat it, lawyers get their arguments into the best shape possible. One’s opinion about the strength of a case depends on an evaluation of the rival strength of competing sets of arguments. It can also depend (when there is an issue concerning proof of facts) on one’s opinion as to the strength or weight of the evidence in relation to the facts that are in issue. It can further depend upon the probability that, as proved, they will fit well the legal argument one wishes to make…
The categories of interpretive argument are, first, those that appeal to the linguistic context itself as a source of reasons for favouring one interpretation or another (‘linguistic’ arguments’); secondly those that look at the legal system as the special context of the authoritative text to see how best to make sense of it in that context (‘systemic’ arguments’); thirdly, those that look to the end or aim of the authoritative text to see how best to make sense of it given that end or aim (‘teleological-evaluative arguments’). Not covered by any of these headings is a common further element in interpretive argument, namely appeal to an author’s (the ‘lawmaker’s’) intention as a guide to elucidating the meaning of the authoritative text. The problem about ‘intention’ is its ambiguity, for sometimes it means an objective intention imputed to an author, sometimes a subjective intention gathered from statements by the author. There can also be differences concerning the reference of the intention in question. Sometimes it may involve reference to the author’s intention about a term’s or sentence’s use in the legal-system context. Sometimes it may involve reference to the author’s intentions about the ends and values to be realised through legislation… The principal type of … ‘linguistic arguments’ concerns the appeal frequently made by lawyers to the ‘plain meaning’ of words used in ‘ordinary language’… ‘Systemic arguments’ are ones that work towards an acceptable understanding of a legal text seen particularly in its context as part of a legal system… it is the whole context that is significant and may have a different bearing in different cases. [For example] the argument from contextual harmonization looks to the way in which any statutory provision is to be found nested in a larger legal scheme, at least that of the single whole statute, often that of a set of related statutes. To argue from legal-contextual harmonisation is to contend that any problematic terms ought to be interpreted in the light of the whole statute or set of related statutes. This makes particularly relevant concentration on closely related provisions of the statute or other statutes in pari materia [on the same subject], and shows what is a more or less obvious ‘ordinary’, or respectively ‘technical’, meaning ought to be interpreted in that light. The argument from precedent says that if a statutory provision has previously been subjected to judicial interpretation, it ought to be interpreted in conformity with the interpretation given to it by other courts… The argument from analogy says that if a statutory provision is significantly analagous with similar provisions of other statutes, or a code, or another part of the code in which it appears, that is a good ground for supporting an interpretation that follows the analogy… The conceptual argument (known as ‘logical’ argument in those legal systems particularly influenced by Savigny) says that if any recognised and doctrinally elaborated general legal concept is used in the formulation of a statutory provision, it ought to be interpreted so as to maintain a consistent use of the concept throughout the system as a whole. At least there should be particular regard to conceptual consistency within any particular branch of the law… The argument from general principles of law says that if any general principle or principles of law are applicable to the subject matter of a statutory provision, one ought to favour that interpretation of the statutory provision which is most in conformity with the general principle or principles. Where they conflict or tend to different decisions, the typical problem has to be faced and resolved of seeking reasons why one takes priority over another, or outweighs it for the context of the type of case in view… The argument from history takes note that a statute or group of statutes can over time come to be interpreted in accordance with a historically evolved understanding of the point and purpose of the statute, or of the group of statutes taken together as a whole. Where that is so, then any provision of the statute or group of statutes ought to be interpreted so that its application in concrete cases is compatible with this historically evolved understanding of the point and purpose involved.’ (MacCormick).
‘[The] clearer the syllogistic progression the better. Legal arguments can be expressed syllogistically in two ways. Some are positive syllogisms:
Major premise: All S is P.
Minor premise: This case is S.
Conclusion: This case is P.
Others are negative:
Major premise: Only S is P.
Minor premise: This case is not S.
Conclusion: This case is not P.
If the major premise (the controlling rule) and the minor premise (the facts invoking that rule) are true (you must establish that they’re true), the conclusion follows inevitably. Legal argument generally has three sources of major premises: a text [e.g. a will or statute], precedent (caselaw), and policy (i.e. consequences of the decision). Often the major premise is self-evident and acknowledged by both sides.
The minor premise meanwhile, is derived from the facts of the case. There is much to be said for the proposition that legal reasoning revolves mainly around the establishment of the minor premise…
Figuring out the contents of a legal syllogism is a matter of finding a rule that works together with the facts of the case – really a rule that is invoked by those facts. Typically adversaries will be angling for different rules by emphasising different facts. The victor will be the one who convinces decision-makers that his or her syllogism is closer to the case’s centre of gravity. What is this legal problem mostly about? Your task as an advocate is to answer that question convincingly.’ (Scalia & Garner).
‘Analogical argument can be described as reasoning by example: finding the solution to a problem by reference to another similar problem and its solution. [In contrast a] deductive argment is subject to the rules of formal logic. According to those rules, an argument is either valid or invalid, and there is no more to be said one way or the other. An inductive argument is not formally bound in the same way; but the conclusion can be tested experimentally, and again, either it is verified, or it is not. The similarity at the heart of an analogical argument, on the other hand, does not display its validity… There simply are no rules that prescribe how much or what sort of similarity is enough to sustain analogies generally or to sustain a particular analogy. Nor can an analogy be tested experimentally, for the similarity on which it depends may be unquestioned but have nothing to do with the conclusion that is said to follow from it, whether the conclusion be true or false.’ (Weinreb).
Analogies only make sense if there are reasons of principle underlying them.
‘[Support] for the analogy on which an analogical legal argument depends is found in its legal context or, more simply, in the law itself. Those who insist there is no basis for validating a legal argument except by deduction or induction suppose that lawyers and judges make their arguments in a vacuum, as if they have no more reason to chose one analogy over another than the visitor from Mars who is asked to explain why the lawn is wet. But that is as false in law as it is in ordinary affairs… Some analogies are better than others, not just because they happen to appeal to one’s imagination or individual sensibility but because they correspond more closely to our experience and understanding… The legal knowledge and experience that lawyers and judges bring to the facts of a case tell them… that some similarities count for the matter at hand and others do not. Their ability to make such distinctions is no more mysterious in the one case than the other. If a legal analogy cannot be put to the test in the same way that a practical analogy can, it is nevertheless subject to tests of consistency and coherence with rules of law that together indicate the relevance of particular facts to the issue in question, although neither individually nor collectively do they prescribe conclusively for the specific situation.’ (Weinreb).
‘The analogical fallacy consists of supposing that things which are similar in one respect must be similar in others. It draws a comparison on the basis of what is known, and proceeds to assume that the unknown parts must also be similar.’ (Pirie).
Be prepared to argue your opponent’s case better than they can before you refute it.
‘Every argument is refuted in one of these ways: either one or more of its assumptions are not granted; or if the assumptions are granted, it is denied that a conclusion follows from them; or the form of argument is shown to be fallacious; or a strong argument is met by one equally stronger. One of the assumptions of the opponents is not granted when either what they say is credible is denied to be such, or what they think is a parallel case is shown to be dissimilar, or a judicial decision is interpreted in a different sense, or decisions in general are denied validity, or what the adversaries regard as sound evidence is denied to be such, or one or both horns of a dilemma are shown to be unsound, or an enumeration is demonstrated to be incomplete, or a simple conclusion is shown to contain a fallacy. For everything which is used in argumentation, either as a probable or rigorous proof, must come under one of these heads…’ (Cicero).
‘Aristotle observed that “in court one must begin by giving one’s own proofs, and then meet those of the opposition by dissolving them and tearing them up before they are made.” Anticipatory refutation is essential for five reasons. First, any judge who thinks of these objections even before your opponent raises them will believe that you’ve overlooked the obvious problems with your argument. Second, at least with respect to the obvious objections, responding only after your opponent raises them makes it seem as though you are reluctant, rather than eager, to confront them. Third, by systematically demolishing counterarguments, you turn the tables and put your opponent on the defensive. Fourth, you seize the chance to introduce the opposing argument in your own terms and thus to establish the context for later discussion. Finally, you seem more even handed and trustworthy. But anticipatory refutation has its perils. You don’t want to refute (and thereby disclose) an argument that your opponent wouldn’t otherwise think of. Avoiding this pitfall requires good lawyerly judgment… if you’re arguing after your opponent, design the order of positive case and refutation to be most effective acording to the nature of your opponent’s argument. Aristotle advised responding advocates to rebut forcefully in their opening words:
“[If] one speaks second, one must first address the opposite argument, refuting it and anti-syllogizing, and especially if it has gone down well; for just as the mind does not accept a subject of prejudice in advance, in the same way neither does it accept a speech if the opponent appears to have spoken well. One must therefore make space in the listener for the speech to come; and this will be done by demolishing the opponent’s case; thus, having put up a fight against either all or the greatest or most specious or easily refuted points of the opponent, one should move on to one’s own persuasive points.”
… If an opponent has said something that seems compelling, you must quickly demolish that position to make space for your own argument… Having made that space, however, you must then fill it. Proceed quickly to a discussion of your take on the case, your major premise, and your version of the central facts.’ (Scalia & Garner).
Common fallacies include:
Ad hominem – where your opponent has attacked the person of a source rather than his qualifications or reliability, or the actual argument he makes.
‘The fallacy of abusive analogy is a highly specialized version of the ad hominem argument. Instead of the arguer being insulted directly, an analogy is drawn which is calculated to bring him into scorn or disrepute. The opponent or his behaviour is compared with something which will elicit an unfavourable response toward him from the audience.’ (Pirie).
Ad ignorantium – arguing that a claim is true just because it has not been shown to be false, i.e. the Loch Ness Monster roams free because the creature has never been found.
Ad misericordiam – appealing to pity as an argument for special treatment.
Ad populam – appealing to the emotions of a crowd; also appealing to a person to go along with the crowd (‘Everybody’s doing it!’). These are bad arguments from authority as no reasons are offered to show that ‘everybody’ is any king of knowledge e.g. justification by reference to the ‘will of the people’ – e.g. intolerance of any criticism of Brexit on the grounds that any critical intellectual argument amounts to a betrayal of the ‘will’ of the people!
Affirming the consequent – a deductive mistake of form,
If A (the ‘antecedent’) then B (the ‘consequent’).
Begging the question/ circular argument – implicitly using your conclusion as a premise.
Complex question – posing a question in such a way that people cannot agree or disagree with you without committing themselves to some other claim you wish to promote.
Denying the antecedent – a deductive mistake of form
If A then B.
Therefore, not C.
Equivocation – sliding from one meaning of a term to another in the middle of an argument.
False cause – a questionable conclusion about cause and effect.
False dilemma – reducing the options you consider to just two, often diametrically opposed to each other and unfair to the people against whom the dilemma is posed.
Loaded language – language that plays primarily on the emotions. It does not make an argument at all, and is only a form of manipulation.
Non sequitur – drawing a conclusion that does not follow, that is, a conclusion that is not a reasonable inference from, or even related to, the evidence.
Over generalising – generalising from too few examples.
Overlooking alternatives – forgetting that things happen for a variety of reasons, not just one.
‘The presentation of only two alternatives where other exist is called the fallacy of bifurcation. Sometimes known as the “black and white” fallacy, it presents an “either/or” situation when in reality there is a range of options.’ (Pirie).
Persuasive definition – defining a term in a way that may seem to be straightforward but in fact is loaded.
Poisoning the well – using loaded language to disparage an argument before even mentioning it.
Post hoc, ergo propter hoc – assuming causation too readily on the basis of mere succession in time.
Red herring – introducing an irrelevant or secondary subject and thereby diverting attention from the main subject. Usually a red herring is an issue about which people get heated quickly, so that nobody notices how their attention is being diverted.
Straw man – a caricature of an opposing view, exaggerated from what anybody is likely to hold, so that it is easy to refute.
‘Effective trial advocacy relies on preparation which begins as soon as you are instructed as the trial advocate. Your aim should be to read the papers a minimum of three times before the trial. [1st] to identify the legal framework i.e. who bears the burden of proving what and what is the standard of proof which the decision maker will apply. In addition identify the issues which are in dispute. The 2nd read through of the papers should be used to analyze the facts, dividing them into good facts (i.e. those that help your client or argument), bad facts (i.e. those that harm your client/argument), fixed facts (i.e. those which are incapable of being altered) and changeable facts (i.e. those which as a result of further evidence or cross-examination, may be capable of being altered). Once you have carried out the fact analysis you ought then to go on to create a case theory, this being the essence of the closing speech you would wish to give if all goes according to plan in your trial. Finally for the 2nd read through you ought to then reduce your case theory down into a case theme. This is a short headline, similar to the headline you’d find in a newspaper, that summarizes your overall case strategy in one sentence… Finally the 3rd read through should be done just before the trial, after any further evidence has arrived. This should be used specifically to plan how you intend to cross-examine each witness to change bad facts to good facts and to have sufficient facts for your closing speech.’ (Cuthbert).
To see the big picture as early as possible, apply Keith Evans’ original golden rule of case planning, which is,
‘1. As soon as you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case.
- When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.
- Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a foolproof checklist. The evidence you need and the way you need to present it stares straight at you from this final plan.’
Another useful technique to focus your mind, is as early you can, to draft the order you will seek at the end of the trial.
My basic method of case preparation involves:
Burden and standard of proof – What has to be proved (i.e. the issues in the case and analytical framework), by whom, and to what standard?
Facts – Preparation of a chronology (for discussion with my Client and eventually agreement with the other side), cross-referenced to documents which will eventually appear in a trial bundle.
Evidence of facts – Drafting inital proofs of evidence (which eventually become witness statements), cross-referenced to documents which will appear in a trial bundle. This exercise also highlights gaps.
Arguments – Initial drafting of the Claim Form, Particulars, Draft Order, and Opening Submissions, to create a template and highlight gaps which require further investigation.
Law and civil procedure – Researching and assembling an Authorities Bundle.
Presentation – Drafting a Skeleton Argument: thesis; law; proof; civil procedure (including jurisdiction, admissibility of evidence, and weight); remedies and the terms of the order sought.
Persuasion – Drafting a Closing Speech to demonstrate that the burden of proof has been discharged to the required standard.
‘[The] case theory is a clear, simple story of “what really happened” from your point of view [which puts all the evidence together into a coherent whole]. It must be consistent with the undisputed evidence as well as your version of the disputed evidence and the applicable substantive law. It must not only show what happened, but also explain why the people in the story acted the way they did. It should be consistent with the [fact finder’s] beliefs and attitudes about life and how the world works. It must be a persuasive story that will be the basis of your evidence and arguments throughout the trial. If you cannot state your theory of the case in a minute or two, it needs more work. The theory of the case obviously needs to be developed as the facts of the case become known, and well before trial’ (Mauet).
‘Your theory is the adaption of your story to the legal issues in the case. A theory of the case should be expressed in a single paragraph that combines an account of the facts and the law in such a way as to lead to the conclusion that your client must win. A successful theory contains these elements:
It is logical. A winning theory has internal logical force. It is based upon a foundation of undisputed or otherwise provable facts, all of which lead in a single direction. The facts upon which your theory is based should reinforce (and never contradict) each other. Indeed, they should lead to each other, each fact or premise implying the next, in an orderly and inevitable fashion.
It speaks to the legal elements of your case. All of your trial persuasion must be in aid of a “legal” conclusion. Your theory must not only establish that your client is good or worthy (or that the other side is bad and unworthy), but also that the law entitles you to the relief. Your theory must therefore be directed to prove every legal element that is necessary both to justify a verdict on your behalf and to preserve it on appeal.
It is simple. A good theory makes maximum use of undisputed facts. It relies as little as possible on evidence that may be controverted, implausible, inadmissible, or otherwise difficult to prove.
It is easy to believe. Even “true” theories may be difficult to believe because they contradict everyday experience, or because they require harsh judgments. You must strive to eliminate all implausible elements from your theory. Similarly, you should attempt to avoid arguments that depend upon proof of deception, falsification, ill motive, or personal attack. An airtight theory is able to encompass the entirety of the other side’s case and still result in your victory by sheer logical force.
To develop and express your theory ask these three questions: What happened? Why did it happen? Why does that mean that my client should win? If your answer is longer than one paragraph, your theory may be logical and true, but it is probably too complicated.
Just as your theory must appeal to logic, your theme must appeal to moral force. A logical theory tells the trier of fact the reason that your verdict must be entered. A moral theme shows why it should be entered. In other words, your theme – best presented in a single sentence – justifies the morality of your theory and appeals to the justice of the case.
A theme is a rhetorical or forensic device. It has no independent legal weight, but rather it gives persuasive force to your legal arguments. The most compelling themes appeal to shared values, civic virtues, or common motivations. They can be succinctly expressed at virtually every phase of the trial.’ (Lubet).
‘[There are] three modes in which facts can be established:
(i) Direct evidence – that is to say, the facts are proved by an eyewitness;
(ii) Logical deduction from direct evidence; [and]
(iii) Probable inferences, based on the facts proved by direct evidence or directly deduced from those facts.’ (Munkman).
Whether or not the burden of proof is discharged depends upon the weight and value which the judge attaches to the various strands of evidence. This involves weighing up the credibility or reliability of the evidence, and ultimately comes down to deciding which version of the relevant matters is more likely to be correct. At trial the judge is concerned with the balance of probabilities rather than certainty.
As Judge Dight stated in Fischer v Diffley ,
‘…the civil standard of proof [is] the balance of probabilities, but that the more serious the allegation which it is sought to prove, the better the quality of the evidence needed to tip the balance in favour of the person seeking to prove it. I also remind myself that I may not speculate as to what happened… I am entitled to draw reasonable inferences from primary facts which I accept, but not to speculate.’
The credibility of the witnesses of fact and consequently the weight attached by the judge to their evidence, will often be a determinative factor in reaching an overall conclusion prior to judgment. I set out below a number of observations made by the late Lord Bingham in his article, ‘The Judge as Juror: The Judicial Determination of Factual Issues’ published in his book ‘The Business of Judging’, about how a judge should set about the task of resolving a conflict of evidence on an issue substantially effecting the outcome of an action (these are direct quotations):
- The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible.
- It is worth bearing in mind [that] when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.
- The most compendious statement known to me of the judicial process involved in assessing the credibility of an oral witness is to be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis:
“‘Credibility’ involves wider problems than mere ‘demeanor’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing up the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness: they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
- The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanor of the witness.
- The first three of these tests may in general be regarded as giving a useful pointer to where the truth lies. If a witness’s evidence conflicts with what is clearly shown to have occurred, or is internally self-contradictory, or conflicts with what the witness has previously said, it may usually be regarded as suspect. It may only be unreliable, and not dishonest, but the nature of the case, may effectively rule out that possibility.
- The fourth test is perhaps more arguable. Much time is spent, particularly in criminal but also in civil cases where the honesty of witnesses is in issue, cross-examining as to credit, that is, in cross-examining witnesses on matters not germane to the action in order to show that they are dishonest witnesses whose evidence on matters which are germane to the action should be rejected. The underlying theory is that if a witness is willing to lie or can be shown to have acted dishonestly in one matter, he will be willing to lie or act dishonestly in another.
- Cross-examination as to credit is often no doubt, a valuable and revealing exercise, but the fruits of even a successful cross-examination need to be applied with some care.
- And so to demeanor, an important subject because it is the trial judge’s opportunity to observe the demeanor of the witness and from that to judge his or her credibility, which is traditionally relied on to give the judge’s findings of fact their rare degree of inviolability.
- What then is meant by the demeanor of the Witness in this context? The answer is: his conduct, manner, bearing, behavior, delivery, inflexion; in short, anything which characterizes his mode of giving evidence but does not appear in a transcript of what he actually said.
- The current tendency is (I think) on the whole to distrust the demeanor of a witness as a credible pointer to his honesty.
- The cases which vex a judge are not those in which he is profoundly convinced of a witness’s honesty or dishonesty. In those cases whether his conclusion is right or wrong, the decision for him is easy. The anxious cases are those which arise not infrequently, where two crucial witnesses are in direct conflict in such a way that one must be lying, but both appear equally plausible or implausible. In this situation I share the misgivings of those who question the value of demeanor – even of inflexion, or the turn of an eyelid – as a guide. I would add:
(i) The ability to tell a coherent, plausible and assured story, embellished with snippets of circumstantial details and laced with occasional shots of life-like forgetfulness, is very likely to impress any tribunal of fact. But it is also the hall-mark of the confidence trickster down the ages.
(ii) There is (I think) a tendency for professional lawyers, seeing themselves as the lead players in the forensic drama, to overlook how unnerving an experience the giving of evidence is for a witness who has never testified before. It would rarely, in my view, be safe to draw any inference from the fact that a witness seemed nervous and ill at ease.
(iii) However little insight a judge may gain from the demeanor of a witness of his own nationality when giving evidence, he must gain even less when the witness belongs to some other nationality and is giving evidence in English as his second language, or through an interpreter. Such matters as inflexion become wholly irrelevant: delivery and hesitancy scarcely less so. Lord Justice Scrutton once observed: “I have never yet seen a witness who was giving evidence through an interpreter as to whom I could decide whether he was telling the truth or not.”
- The enigma usually remains. To rely on demeanor is in most cases to attach importance to deviations from a norm when there is in truth no norm.
- In choosing between the witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.
- The tests used by judges to determine whether witnesses although honest are reliable or unreliable are, I think, essentially those used to determine whether they are honest or dishonest: inconsistency, self-contradiction, demeanor, probability and so on. But so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such. There are three sources of unreliability commonly referred to by judges when rejecting the evidence of honest witnesses.
(i) The first source of unreliability, arising principally when the evidence relates to an accident or incident occurring over a very short space of time, is where the witness although present at the scene and in a position to see what happened does not in truth see, or in any event register mentally, exactly what did happen. Work done by psychologists on the operation of the human memory throws a very interesting sidelight on this point. There is good reason to accept that with a significant number of witnesses, exposure to later misinformation gives rise to an inaccurate recollection as a result of supplementation or alteration.
(ii) The second source of unreliability is loss of recollection. It is almost axiomatic that a witness cannot recall an event which happened several years ago as clearly and accurately as one that happened the day before. As it is often put, recollections fade with the passage of time. Psychological investigations appear to show a very high rate of loss immediately following the event and then no more than a minimal loss. I strongly suspect that recollection fades in a selective and not in a uniform way: in other words, that the circumstantial detail falls away or becomes blurred while recollection of the crucial and striking features of the event (as perceived by the witness) survive. This is suggesting no more than what is perhaps obvious, that the dominant impression lasts longest.
(iii) The third source of unreliability which I would mention is wishful thinking. There can be few trial judges who have not at some time said something to this effect: ‘X testified that so and so happened. I am not sure that X was being entirely truthful in giving this evidence. I am also sure that so and so did not happen. In my judgment X has over the years, erroneously but quite genuinely persuaded himself that so and so happened as he described.’ This approach has philosophical support Nietzsche observed, ‘I did this, says my memory. I cannot have done this says my pride, and remains inexorable. In the end memory yields.’ I certainly do not challenge that such wishful thinking, usually a process of unconscious self-exoneration occurs. But I do a little question how often, in normal (unhallucinated) people.
‘Just as a lawyer cannot succeed without developing a comprehensive theory of the case, neither will an expert be effective without a viable, articulated theory. An expert’s theory is an overview or summary of the expert’s entire position. The theory must not only state a conclusion, but must also explain, in common sense terms, why the expert is correct. Why did she settle upon a certain methodology? Why did she review particular data? Why is her approach reliable? Why is the opposing expert wrong? In other words, the expert witness must present a coherent narrative that provides the trier of fact with reasons for accepting, and it is hoped, internalizing, the expert’s point of view… In cases involving dueling experts there will be competing theories. Properly prepared and presented, each expert will attempt to explain to the trier of fact why her theory ought to be accepted. It can be particularly effective, therefore, to ask your expert to comment on the opposing expert’s work. This technique can be called theory differentiation because it is most convincing when your expert discusses the shortcomings of the opposition theory’ (Lubet).
An advocate who can state the opposing expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions better than the opponent’s expert witness can, is standing on the mountain top and looking down, for the purposes of:
(i) distinguishing his own expert’s case theory, opinions, assumptions, inferences, chain of reasoning, and conclusions; and
(ii) conducting a devastating ‘top down’ forensic critique of the opposing expert’s evidence, in order to: cast doubt; demonstrate falsity; tarnish; ridicule; and comprehensively devalue the weight to be attached to that evidence.
‘Research, as much as technique, lies at the heart of expert witness cross-examination. Counsel cannot conduct an adequate cross examination without first thoroughly investigating all of the technical aspects of the expected testimony. It is often said that you cannot cross-examine an expert without first becoming an expert yourself. Moreover, your research should extend beyond the expert’s subject matter area and into the witness’s own professional background … There is nothing so effective as impeaching an expert with his own prior assertions.’ (Lubet).
The weight to be attached to expert evidence is entirely a matter for the trial judge. In Loveday v Renton and Welcome Foundation Ltd  Lord Justice Stuart-Smith stated, ‘In reaching [a] decision a number of processes have to be undertaken. The mere expression of opinion or belief by [an expert] witness, however eminent…[in this case about whether a vaccine could or could not cause brain damage] does not suffice. The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence. There is one further aspect of a witness’s evidence that is often important; that is his demeanour in the witness box. As in most cases where the court is evaluating expert evidence, I have placed less weight on this factor in reaching my assessment. But it is not wholly unimportant; and particularly in those instances where criticisms have been made of a witness, on the grounds of bias or lack of independence, which in my view are not justified, the witness’s demeanour has been a factor that I have taken into account.’
I would add the following observations made by the late Lord Bingham in his article, ‘The Judge as Juror: The Judicial Determination of Factual Issues’ published in his book ‘The Business of Judging’ (which are direct quotations):
- Expert witnesses may be and often are partisan, argumentative, and lacking in objectivity, but they are not dishonest.
- The problem remains: how is a judge faced with conflicting opinions of two or more experts, to choose between them?
- Manner and demeanor give no assistance here, and it is surely that the more truly learned a man is the more ready he is likely to be to admit ignorance and acknowledge inability to provide a perfect solution.
- It is often the superficial expert or charlatan who offers the most confident answer.
- Nor can the choice be based on comparison of the expert’s respective qualifications – frequently the experts’ qualifications are broadly comparable.
- Where they are not, the choice usually lies between one expert whose career has been devoted to the amassing of postgraduate degrees to the virtual exclusion of practical experience in the field, and another with no formal qualifications but a lifetime of experience in handling the commodity or operation in question.
- There is in truth no easy way out, no short cut.
- The only safe way in which a judge can choose between the opinions of experts is on the basis of what they have submitted and in the course of forensic questioning.
- This is as it should be, but it does I think raise a problem. For a judge to prefer the opinion of one expert to another he must understand what they have both said and form a reasoned basis for his preference.
- Usually this gives rise to no problem.
- The conflict of expert opinion may relate to an issue which is not particularly complex, or it may arise in a field of which the judge has previous experience or which he has studied at a level which at least enables him to understand the concepts to which the experts refer and the language they use. But this is by no means always so. The more advanced and experimental a technology the more risk there is of mishap.
- There are in my view times when the ability of judges to understand the effect of evidence given sufficiently to make an informed judgment is taxed to the very utmost, and I can imagine it being exceeded.
‘A speech consists of two essential parts:
(i) The Statement, that is to say the statement and explanation of what has to be proved.
(ii) The Proof, that is to say the arguments in support.
[This analysis is based on Aristotle (Rhetoric, III, xiii-xix)] whose explanation of the divisions of the speech is still the clearest available]…
The proof falls into two divisions, which need not, of course, follow one another consecutively, but may be intermingled. The first division consists of the arguments in support of one’s own case; the second is the refutation of the argument advanced, or likely to be advanced, on the other side… [Arguments] ought not, in a legal speech, to be set out in a continuous sequence, but worked in here and there… [An argument] may be refuted in two ways: either by objecting to its validity on one ground or another, or by setting up a counter argument. In addition to these essential components – which must always be present – a speech may also contain:
(i) An introduction, sometimes known as the Excordium or Proemium; and
(ii) A Peroration, also described as the Epilogue or the Recapitulation.
If the subject is plain and short, there is no need for an introduction. Its object is to pave the way, as it were, for the main speech. Thus in his introduction a speaker seeks chiefly to arouse interest, in order that attention may be given to his arguments; he seeks also to remove prejudices, and to make his audience favourably disposed towards the case he is about to present.’ (Munkman).
‘[The purpose of a written opening is] to educate the judge. Remember at the outset, set out a reading list in a helpful order. Do not overload. Skeletons/statements of case/principal witness statements/key documents. Give a realistic time estimate as to how long the pre-reading will take. Attach a chronology (agreed if possible) plus cast of characters.
The Facts – identify the issues, summarise your case, and your opponent’s.
Remember the evidence has yet to be tested, so avoid putting your case too high – otherwise you may live to regret it.
The Law – again identify the relevant principles and authorities. Where you are aware that there is an area of controversy, flag it up. The opening should be accompanied by a bundle of authorities. These should be agreed if possible.
The oral opening is another opportunity to bring the judge up to speed, and draw his attention to the principal issues in the case. Establish what he has read. Identify the principal areas of controversy and bring out the main points of your case. Draw attention to the most important documents. Keep it concise.’ (Hochhauser).
‘The single most important rule concerning opening statements is to present a coherent theory of the case… clearly, succinctly, and persuasively…
Your trial theme… should be expressed in a single sentence that captures the moral force of your case. A theme communicates to the [judge] the reason that your client deserves to win. Thus introducing a theme in opening is particularly effective as a persuasive matter since it can focus the [judge’s] attention on a cognitive image that you will return to throughout the trial…
Your case can be only as persuasive as the theory behind it, and your theory can only be persuasive if it ties the evidence to the legal issues. Your opening statement, then, must address the legal issues in your case.’ (Lubet).
‘When logic permits, put your winning argument up front in your affirmative case. Why? Because first impressions are indelible. Because when the first taste is bad, one is not eager to drink further. Because judicial attention will be highest at the outset. Because in oral argument, judges’ questioning may prevent you from ever getting beyond your first point… If you’re the first to argue, make your positive case and then preemptively refute in the middle – not at the beginning or the end. It’s an age ole rule of advocacy that the first to argue must refute in the middle, not at the beginning or the end. Refuting first puts you in a defensive posture; refuting last leaves the audience focussed on your opponent’s arguments rather than your own.’ (Scalia & Garner).
‘The gift of selection is the genius of victory… The most important single element of successful oral argument is the ability to select the heart of your case – the nub – the core, upon which all else depends… rather than “go for the jugular”, many lawyers spend oral agrument “going for the capillary”. They – and their message – get bogged down in a swamp of murky and difficult to follow detail. One judge compared such an argument to being cornered at a party by someone from whom you cannot get away who insists on telling a complicated and impossible to follow story… [Argument] is best that goes to the jugular of the case… There is in every case a cardinal point around which lesser points revolve like planets around the sun… a central fortress which if strongly held will make the loss of all the outworks immaterial… your argument should be directed principally to that issue.’ (Garner).
‘Pick your best independent reasons why you should prevail – preferably no more than three – and develop them fully…
Select the most easily defensible position that favours your client. Don’t assume more of a burden than you must… Don’t try to defend the indefensible… Make a virtue of a necessity. Boldly proclaim your acceptance of [a points of fact and law which goes against your case to demonstrate your reasonableness then go on] to explain why the conceded point makes no difference or why other factors outwiegh it… [A weak argument] speaks poorly of your judgment and thus reduces confidence in your other points…
Always start with a statement of the main issue before fully stating the facts.’ (Scalia & Garner).
The purpose of examination-in-chief is to get into evidence the facts necessary to prove your case. To achieve this purpose it is necessary to elicit each witness’s evidence in a clear and concise manner, and to anticipate, so far as is necessary and possible, any attack on that evidence likely to be made in cross-examination. When examining his own expert witness the advocate’s aims include:
- ensuring that the judge understands the expert’s evidence;
- persuading the judge of points essential to the case; and
- anticipating the other side’s cross-examination and fortifying against that assault.
The expert is obliged to state his qualifications in his report (PD 35, paragraph 3.2(1)). The usual practice at trial is for the judge to be referred to the relevant page in the report and for the advocate to then move on to the substance of the expert’s evidence. ‘In almost every civil case the expert will have written a report before the trial which will have been disclosed to the other parties pursuant to a direction of the court. This report should have been pre-read by the judge and examination-in-chief is usually relatively brief consisting of the advocate highlighting the important sections of the report and asking the expert to amplify or clarify ambiguities in the report and, sometimes, to comment on issues raised by the other side’s expert (albeit that this has usually been done in the expert’s joint statement) and/or issues that have arisen since he wrote the report. The bulk of the expert’s time in the witness box is usually taken up with cross-examination. In many civil cases (in particular those involving a single joint expert all of the expert evidence is given by report alone and, thus examination-in-chief does not arise.’ (Expert Evidence).
The opinion of an expert, however correct, is of no use to the court unless it is clearly formed by inference from facts which have been or are to be proved in evidence. The expert must always, in expressing an opinion, indicate which facts he relies upon. Counsel calling an expert should therefore in examination-in-chief, ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination. ‘Unless a witness states in his evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless.’ Cadbury Schweppes v Durrell Lea .
Once the expert’s opinion has been stated, immediately provide the underlying theory. The theory should furnish the nexus between the expert’s conclusion and the data used to support the conclusion. In other words the examination should follow this pattern: (i) here is my opinion; (ii) here are the principles that support my opinion; and (iii) here is what I did to reach my final conclusion. Having stated and supported his theory choice, the expert can then specify the nature of his investigations and tests. It is not necessary to explain or outline every hypothesis used by your expert, but the more important assumptions should be noted and supported. The examination in chief of an expert should conclude with a powerful restatement of his most important conclusions. Many complex ideas can be made understandable with examples, analogies, or metaphors. Expert witnesses should be encouraged to clarify their testimony through the use of such imagery. (Lubet).
What is your cross-examination directed at eliciting and proving?
‘[The] aims of cross-examination are these:
(i) To destroy the material parts of the evidence-in-chief;
(ii) To weaken the evidence where it cannot be destroyed;
(iii) To elicit new evidence, helpful to the party cross-examining; and
(iv) To undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge.
… The ideal to be aimed at is to lead the witness to admit that his evidence was untruthful or mistaken.
… In most cases, the objective is not so much to destroy the evidence outright, as to weaken it, that is to say to reduce the weight of the evidence and qualify the inferences which might be drawn from it… this objective is particularly important where the evidence is circumstantial, so that its damaging effect depends not so much on what is actually said as on what may be deduced from it. The witness may be induced to admit that other explanations are possible; or relentlessly probing into the details – as in cases where identification is in issue – may show that there is a possibility of a mistake.
The eliciting of fresh evidence may lead to a new topic altogether… More often, however, the new evidence simply consists of facts which put a new colour on the evidence in chief. If this is done successfully, the result is not only to help in the building up of one’s case, but also, at the same time, to weaken the other side.
Undermining – if successful – destroys the assumptions on which the reliability of the evidence depends.’ (Munkman).
‘[Counsel] submitted that [the witness’] evidence was untruthful in a number of respects, and that this meant that there was an overwhelming probability that it was untruthful in key respects. I do not accept either the premise or the conclusion. So far as concerns the conclusion, it does not follow that because an individual’s evidence is unreliable in some respects it is also unreliable in others.’ Judge Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division) in Thornton & ors v Woodhouse & Anor .
‘[Cross-examination] requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and above all, the instinct to discover the weak point in the witness under examination. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness… It is absurd to suppose that any witness who has sworn, positively to a certain set of facts, even if he has advertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. If the cross-examiner allows the witness to supect from his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair minded spirit, which if the cross-examiner is clever, will soon disclose the weak points in the testimony… By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, while his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself; but it is only with the matter of our cross-examination that we can hope to destroy him.’ (Wellman).
There are three principal techniques for undermining credibility. An advocate may suggest that a witness is:
(i) being dishonest;
(ii) inaccurate or inconsistent; or
Alternatively, the advocate may seek to suggest some combination of (i) to (iii).
In cross-examination an advocate may either:
(i) confront the witness with evidence that is inconsistent with their account;
(ii) insinuate another version of events; or
(iii) probe the witness’s evidence for flaws.
‘Confrontation, as the name indicates, consists of confronting the witness with a great mass of damaging facts which he cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still suceed in weakening. Probing consists of inquiring thoroughly into the details of the story to discover flaws. It may be used either to weaken or destroy, or open up a lead to something new. Insinuation is a many-sided technique… In essence, it is the building-up of a different version of the evidence-in-chief, by bringing out new facts and possibilities, so that, while helping to establish a positive case in one’s own favour, at the same time it weakens the evidence-in-chief by drawing out its sting. Insinuation may take the form of quietly leading the witness on, little by little: alternatively it may be necessary to drive him… Thus there are two main forms of the technique, gentle insinuation and firm insinuation. [The object of undermining] is not to break down the evidence by inquiring into the facts, but to take away the foundations of the evidence by showing that either (i) the witness does not know what he is talking about, or (ii) if he does know the truth, he cannot be trusted to tell it.’ (Munkman).
Just as a party must in cross-examination challenge evidence of fact given in chief by a lay witness which is not accepted, so the opinions of an expert must be challenged if they are to be disputed. The purpose of cross-examination is to:
(i) elicit support for your own case, and to weaken your opponent’s case; and
(ii) put your client’s case (including as to the fact or content of documents) to the witness to afford the witness the opportunity to respond to it.
‘Effective cross-examination of an expert is no different than of any other witness: you must have a sound analytical approach to the witness so that you can determine whether to cross-examine and, if so, how to organize and execute the cross-examination to carry out realistically attainable goals. This approach involves the following basic considerations.
- Should you cross-examine? Not every witness needs to be cross-examined. If the expert has not hurt you, or if you have no effective points to make, or your own experts have been more persuasive, consider not cross-examining.
- How should the cross-examination be organized? All cross-examinations have two possible basic purposes: eliciting favorable testimony, and conducting a destructive cross. Eliciting favorable testimony ordinarily comes before a destructive cross. If the expert has substantially helped you by agreeing to helpful facts, consider not attempting a destructive cross at all, although you have destructive ammunition.
- Effective cross-examinations have a structure that starts strong, and keeps it simple. They maintain control over the witness by asking simple, leading questions and stop when the point is made.
- What favorable information can you elicit? Did the witness say things on direct that you can have her repeat on cross? Can the witness admit facts not yet mentioned that support your case? What must the witness admit that helps?
- What discrediting or destructive cross-examination can you do? Are the witness’s perception, memory, or communication skills vulnerable? Can the witness be impeached? Can you expose the witness’s bias, interest, or motive? Has she made prior inconsistent statements? Can the witness be impeached by a treatise?
A good approach to any cross-examination is to ask yourself: what will I say about this witness in closing arguments? Planning the cross-examination is then a matter of determining what facts you can realistically make the witness admit during cross-examination that support your planned closing argument.’ (Mauet).
‘There are besides, two rules of practice, firmly established in British courts, which must be complied with. The first is that the witness must be cross-examined on all material facts which are disputed. Otherwise the court will take it that his evidence is not contested. The second rule is that an advocate, in cross-examining must put to the witness the case he is going to set up, so far as it lies within the witness’s knowledge; such cross-examination is a necessary preliminary to the calling of contradictory evidence… A real artist… will comply with the rule that he must challenge the adverse evidence not in any perfunctory and formal manner, but by using all the resources of his technique to weaken, undermine or destroy it. Likewise, instead of formally putting his case to obtain denials, he will try to insinuate it and build it up out of the witness’s own mouth. Sometimes of course, there is no scope for anything but a formal challenge.’ (Munkman).
‘In general, if wishing to contest the opinion of an expert being called by our opponent, we can either contest the factual basis of the opinion, or we can contest the opinion itself. If the factual basis of the opinion is disputed, then we should be able to get the witness to agree in cross-examination that if the facts were as we contend, then his or her opinion would be different. If it is the opinion which we are contesting, on the other hand, then we will probably need to call our own expert witness…
There are six critical questions we can ask about experts:
- Expertise questions: How credible is E as an expert source?
- Field question: Is E an expert in the field that A is in?
- Opinion question: What did E assert that implies A?
- Trustworthiness question: Is E personally reliable as a source?
- Consistency question: Is A consistent with what other experts assert?
- Backup evidence question: Is E’s assertion based on evidence?
… The expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.’ (Palmer).
An expert may be:
(i) challenged as to credit in relation to his opinion as he may in respect of facts;
(ii) asked to justify or deny particular opinions expressed on other occasions (including evidence given in similar cases) to cast doubt upon the opinions he has expressed in the present case;
(iii) asked about his attitude to the parties, i.e. if it is suggested that he is biased; and
(iv) questioned about whether he is or was not in a physical or mental state to express a proper opinion.
When cross-examining an expert witness the advocate’s aims specifically include:
‘(a) limiting the witness’s apparent expertise. Narrow the extent of his or her expertise/experience by showing that it is not directly applicable to the case in question or, perhaps, by contrasting it to the experience of your expert;
(b) showing that the witness has had less involvement/contact with the case than your expert;
(c) showing your knowledge of the expert’s subject. Using your knowledge of the technical terms involved or the way in which any tests were carried out, the expert will be less inclined to avoid your questions. Contrast this approach with the way you may deal with an ordinary witness of fact by simplifying technical terms;
(d) inviting the witness to define technical terms and sometimes in highly complex matters it may be necessary to invite the expert to use common language;
(e) challenging his or her methods, for example showing that there were other tests that the expert could/should have carried out that might have produced a different result. Remember to check that the expert’s facts, calculations and methods do actually produce the results set out in his or her report and, if they do not, challenge the expert as this may undermine the confidence and credibility of the expert’s evidence;
(f) inviting the witness to agree with the propositions that form the basis of your expert’s opinion – he or she is unlikely to disagree with everything your expert says, and you should know from your own expert those areas that are in dispute. Remember to ‘put your case’ to the expert by inviting him or her to deal with your expert’s methods/opinions/conclusions;
(g) inviting the witness to agree that, in his or her field, legitimate differences of opinion frequently occur between qualified experts. This shows that the witness is not infallible and that his or her evidence is ‘opinion’ only; and
(h) using hypothetical facts to test the strength of the expert’s opinion. Testing whether a different interpretation of the same facts or a slight change in those facts would affect the expert’s opinion.’ (Advocacy).
Paragraph 5 of PD 35 provides,
‘Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.’
Cross-examination of an expert witness is a hazardous undertaking. ‘A witness under cross-examination does not want to agree with you. He will fight tooth and nail to confound you. He will misunderstand your questions. He will provide evasive answers. He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case. Unlike TV, a witness has no script which must be followed. He will try everything to wriggle out from under your questions. Every question in cross-examination is an invitation to disaster. It is an opportunity for the witness to hammer you and your case. So your first thought is don’t do it. Always start from the point of view: if I can avoid it, I will.’ (Morley).
‘The advantage of a cross-examiner over even the most prepared witness is that only the cross-examiner knows which questions are going to be put next…
10 cardinal rules:
(i) Always put your case to a witness in so far as it is relevant to that person’s evidence. Failure to do so may damage your case and may result in the witness being recalled.
(ii) Keep your xx to what is absolutely necessary.
(iii) Leading questions are permissible and should be used. Put propositions to a witness. Don’t give them a chance to give equivocal answers. Listen carefully to what they have to say. If a witness avoids answering the question put it again until he/she does.
(iv) Do not ask multiple questions. Keep them short and keep a tight rein on the witness. You should be in charge.
(v) Permissible – forceful/insistent. Impermissible – hectoring/bullying. XX does not mean being cross. Never lose your temper with a witness.
(vi) Let the witness finish his/her answer, before proceeding to the next question. If a damaging answer has been given, pause before proceeding. Silence is golden. Let it sink in.
(vii) Watch the judge’s pen. No matter how good the XX is, if the judge cannot record it, it may be lost. On a long trial, try to get a daily transcript if possible, it is very helpful for closing speeches.
(viii) Never put questions on a false premise. It denudes the XX of its force and makes you look bad/ incompetent/unprepared.
(ix) Never misrepresent a witness’s earlier answer.
(x) Put questions, don’t make speeches/submissions. Don’t clutter the questions with comment – save that for closing.’ (Hochhauser).
The purpose of re-examination is to correct, clarify or expand matters arising out of cross-examination. No question may be asked in re-examination which does not arise out of cross-examination. The basic rule about re-examination is do not do it, i.e. ‘break glass in the event of emergency’.
The advocate is not allowed to ask leading questions.
‘[In principle re-examination] is simply the insinuation of facts or possibilities which give a different turn to the answers in cross-examination, but as the advocate is examining his own witness, a roundabout approach is uneccessary. The real difficulty of re-examination is twofold. The first difficulty is to think of helpful points – which reduces itself to quick thinking and a detailed knowledge of the case. The second difficulty is to frame simple and straightforward questions without leading, for in view of the complications introduced in cross-examination, there is a tendency for questions in re-examination to be introduced by lengthy preambles and to be appallingly long-winded. The solution to this is, of course, a mastery of the use of language… As it is the technique of insinuation which introduces something new in cross-examination, the object of re-examination is, more often than not, to counteract an insinuation. Suppose the evidence-in-chief has raised a certin probability or inference: and afterwards in cross-examination, a fact or a possibility is suggested to weaken this. Re-examination will then be directed either to excluding the suggested fact or possibility, or to bringing out something further to tilt the balance in favour of the original inference.’ (Munkman).
‘Closing is when you draw together all of the case, all the answers from the witnesses, all the legal incidents which arose at trial, and you present your theory of the case… Closing is all about persuasion… This means 100% comment. It is not about the facts; it is about comment on the facts. It is not about repeating what the facts were: it is about explaining why the facts as they emerged in trial mean you win.’ (Morley).
‘In sum, the final argument must tell the whole story of the case but it cannot just tell any story. The final argument has to complement the portrait begun during the opening statement, and, even more important, must reflect and encompass the evidence in the case. This goal can be best accomplished only when the case is presented according to a well-defined theory… To be successful, the theory presented in a final argument must be logical, believable, and legally sufficient.’ (Lubet).
Palmer identifies the following types of arguments which can be made from and about the evidence:
- arguments about the credibility of witnesses and other sources of evidence;
- arguments about the relevance of evidence;
- arguments about whether or not particular inferences should be drawn;
- arguments about missing and negative evidence; and
- arguments about the probative value of evidence and the application of the standard of proof to a case.
‘By identifying these arguments in advance we provide ourselves with a blueprint for the conduct of the trial. In particular, we will enable ourselves to identify the evidence we need to adduce from each witness, identify our aims for the cross-examination of our opponent’s witnesses, and so on…
Arguments about witnesses and other sources of evidence – [It] could be argued that the first question a court must ask itself in relation to each and every item of evidence adduced is “how credible is the source?” If the source of an item of evidence is not credible, then the item of evidence can not be safely relied on. Source credibility is one of the two main attributes which determine the probative value of an item of evidence (the other is its degree of relevance, or “inferential force”… In a common law trial, credibility is generally treated as a matter of weight for the tribunal of fact to assess, rather than a matter of admissibility for the tribunal of law to determine… Typically, then, arguments about source credibility are used as part of the process of persuading the court to accept or reject a factual theory, rather than as part of the process of determining the admissibility of evidence.
Arguments about witness credibility – In determining the credibility of a witness, there are three main questions the court might ask itself:
- How honest is the witness?
- How accurate was the witness’s original observation of the event in question?
- How reliable is the witness’s memory of that observation?
The first question concerns whether the witness is, or might be lying; the second and third concern the possibility that the witness is mistaken. Mistake may arise from weaknesses in the original perception of the fact about which the witness is giving evidence, or it may arise from a faulty recollection of that perception.
Arguments about documentary evidence – Documentary evidence is usually used to supplement, support or rebut the oral testimony of witnesses. Where our documentary evidence is consistent with the oral testimony of the witnesses, our argument is straightforward… Sometimes we may want to argue that the court should prefer the documentary evidence to the oral testimony of the witnesses. In making such arguments we are likely to rely on some combination of the following factors (as always, some evidential foundation must have been laid during the examination of the witnesses):
- the contemporaneity of the documents with the events they describe – so that the documents can be said to have been made whilst the events were still fresh in the memory of their creator;
- the fact that they were created before litigation was contemplated – so that they are less likely to be self-serving than the oral testimony;
- the degree to which the documents were to be relied on by their creator or someone else, and the consequent need for them to be accurate; and
- the steps taken to ensure the accuracy of the documents, either in relation to a specific document, or in relation to the class of documents to which the document belongs.
On other occasions we may have to argue that the oral testimony should be preferred to the documentary evidence. In making such arguments we are likely to rely on some combination of the following factors:
- the fact that the oral testimony was given on oath in the presence of the tribunal of fact, allowing the court to assess the witnesses’ demeanor, and exposing the witnesses to prosecution for perjury if they did not tell the truth;
- the fact that the oral testimony was tested by cross-examination; and
- the possibility that the creator of the documents may not have realised the importance of their contents at the time they were created, and may not therefore have been scrupulous about accuracy.’ (Palmer).
[It is important] to demonstrate, if possbile, not only that your client does prevail under applicable law but also that this result is reasonable. So you must explain why it is that what might seem unjust is in fact fair and equitable – in this very case, if possible – and, if not there, then in the vast majority of cases to which the rule you are urging will apply. You need to give the court a reason you should win that the judge could explain in a sentence or two to a non-lawyer friend…
Avoid repetition when making your submissions.
The art of rhetoric features what is known as the peroration – the conclusion of argument, which is meant to move the listener to act on what the preceding argument has logically described… It should briefly call to the reader’s or listener’s mind, the principal arguments made earlier and then describe why the rule of law established by those arguments must be vindicated… Say something forceful or vivid to sum up your points.’ (Scalia & Garner).
The trial advocate should remember at all times that ‘Human beings are far more video than audio. The way we collect most of our information is through our eyesight…Intent listening is something we do with surprisingly rarity…What most lawyers ask the fact finders to do in court is to use their second best device for gathering understanding. And the fact finders do it: on the whole they do it well. But since we don’t tie blindfolds on them, they don’t switch off their best information gathering device… People who have studied the psychology of communications have some terrifying statistics for us lawyers. Examples:
- 60% of a message is conveyed by body language and visual appearance generally.
- 30% of the message is conveyed by tone of voice.
- Only 10% of a message comes through the words used.
- Only 10% of what people hear gets remembered. If, on the other hand they see something connected with what they are hearing, as they are hearing it, they remember 50%.
Lawyers tend not to know these statistics, just as they don’t seem to realise that they are operating all the time in the Video dimension.’ (Common Sense Rules of Advocacy for Lawyers).
In his book the Golden Rules of Advocacy, Keith Evans adds,
‘[At trial what the judge normally has to do] is decide which parts of the evidence [he] prefers. An advocate’s job is to lead his or her fact finder to a preference and thus to an opinion…Your fact finders may arrive at their preference and their opinion entirely as a result of thinking. But that’s not very likely, is it? Even trained thinkers like us, in choosing between two conflicting witnesses, often ask ourselves what our gut reaction is…The process of getting to a preference and an opinion involves both – thinking and feeling. In a trial by judge alone you are before a trained thinker: here there may be more thinking than feeling involved in the search for preference or opinion. I say “may be” because that isn’t by any means certain. Judges are human too…You see lawyers behaving as if their fact finders had no feelings at all, whereas it is their feelings you should be reaching out to all the time. Your job is to make them feel , as well as think, that they prefer your version. It is your task, in total honesty, to lead them to this. And if you take this as your starting- point all sorts of guidelines present themselves.’ (Evans).
Keith Evans’ guidelines include:
- ‘Be likeable – Leave the macho advocate where he belongs, on the television screen. The nice approach is infinitely more effective. If you are likeable, affable and kindly you will evoke all your fact finders nicest feelings. They will want to believe you. Coming across as utterly real and genuinely nice works wonders in court.
- The sympathy rule – Try to imagine what it must be like sitting where your judge is sitting, seeing what she is seeing, hearing what she is hearing. Try and put yourself as completely as you can in her position. Do it as they come into court at the outset and do it now and again right through the trial. Imagine yourself into the individual’s skin: get behind his or her eyes. This simple exercise puts you in far greater sympathy with them and, somehow or other, they are subconsciously aware of it. The result is that they give sympathy back to you.
- They will listen willingly.
- They will put the kindest interpretation on what you say.
- They will feel reluctant to deny you what you ask.
- They will feel inclined to overlook your mistakes.
- The rule of equals and opposites – If you pay attention to the sympathy rule you won’t get into a confrontation with your fact finder. Most advocates go barging into confrontation with the fact finder as a matter of course. The rule is simple. You push and they’ll push back. You pull and they’ll resist. You demand and they’ll refuse you. You insist and they’ll turn you down. An action almost invariably produces its equal and opposite reaction, and it’s one of the most important Golden Rules of Advocacy.
- Include the fact finder – Think ‘we’, never ‘they’. The witnesses tell us not you. The fact finders must always feel included rather than dispassionate umpires sitting on the sidelines.
- Prepare them – If you have weaknesses in your case, and all cases have weaknesses, make sure that you are the first to mention them. Get to your difficulties before anybody else does. You will handle them so much more sympathetically than your opponent.
- Always aim to be the honest guide – By the time the fact finder has spent 20 minutes in your company they should be beginning to feel, not only that you are honest, but that they can trust you. More than that, they should already have started to get the feeling that they can trust you completely, that you are not going to dupe them in any way. There’s no substitute for real sincerity and real honesty and real niceness.
- Don’t ask them to believe the unbelievable – If you press them to accept something that is beyond them, your credibility will vanish in a puff of smoke. Any good you may have accomplished so far will be undone.
- When there is a weak point in your case don’t pretend that it isn’t a weak point. Admit it and show them how you still ought to succeed despite that weakness.
- Don’t misquote the evidence in any way at all and don’t put a slick interpretation on any part of it.
- Make sure that you always come across as being absolutely fair.
- Practice listening intently.
- Stop dead in your tracks – As soon as you realise your sentence is a failure, stop. Say something like:”I’m not putting this clearly. Let me start again.”
- Use repetition very sparingly.
- The coffin nail exception – If, in cross-examination you get a witness on the run and you have a list of things which you know he is going to have to admit, then you can use one form of repeating question over and over again, driving the nails into the lid of the coffin.
- The Mark Anthony exception – In your final speech (and in the rarest of cases in your opening) you might be able to find a short form of words that you can repeat like a theme. “For Brutus is an honourable man, so are they all, all honourable men.” If you can find such a theme, use it. But make sure it’s worth hearing again and again.
- Sit down and write your final speech – As soon as you have an approximate idea of what a new case is about, sit down and write your closing speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case. When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.
- Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a foolproof checklist. The evidence you need and the way you need to present it stares straight at you from this final plan.
- Show them the way home – Home is the goal we are aiming at, the objective, the only reason we are in court. Everything we have done has been done for this. Your fact finder usually starts out as a complete stranger to your case. They come like travellers in a new land. Somewhere in this country is the city you want to take them to, the city called verdict. You know their journey to that city could be a difficult one. If this weren’t so you wouldn’t be in court. And you have an opponent who wants to take them somewhere else altogether. Both of you are there, as the travellers arrive like tourists wondering what lies ahead of them, and from the outset you are like two tour operators in competition for those tourists. The brilliant advocate grabs them all, there and then. He paints them a picture of an easy, enjoyable journey, through interesting countryside, over smooth, paved roads. He sells them his city as a place where they’ll feel content to be, a place worth having arrived at, a place where they’ll be so welcome, a place where they’ll be more than just tourists, a place where they’ll experience a new and exciting sensation: the pleasure of bringing right where before there was wrong. And off they’ll all go, with the other tour guide chasing along behind, desperately trying to catch up and never even coming close. Unless there is a catastrophe in the evidence they never swerve. They choose the guided tour they prefer and stick with it.’
‘Judges, as human beings, are not immune from vanity. It is, then, “always a good principle of advocacy” for counsel to base his submissions on the previous decisions of the judge trying the case, since, as Lord Donaldson MR has acknowledged, “nothing appeals to judges quite as much as something which they have thought of themselves”. Little has changed since Quintilian advised all aspiring advocates in the first century AD that “we shall win the goodwill of the judge not merely by praising him, which must be done with tact and is an artifice common to both parties, but by linking his praise to the furtherance of our own case. “‘ (Advocates).
Most hearings take place in court, but they can take place in a hospital, nursing home or other agreed venue where this is necessary in order to enable the relevant person to participate. The approach may be adversarial, inquisitorial or conciliatory according to the needs of the case.
In contrast to the adversarial method, which aims to get at the truth by two competing parties arguing their case and the judge deciding whose case is the strongest, the Court of Protection (‘COP’) operates an ‘inquisitorial’ method, the aim of which is to get at the truth through extensive investigation and examination of all of the evidence. The opinions of professionals will be admitted as ‘expert’ evidence but considered alongside factual evidence from those who know the individual and will only be persuasive if the experts have been given all relevant information and applied the appropriate legal test. The starting point for assessing someone’s capacity to make a particular decision is always the assumption that the individual does have capacity.
What you are asking the judge to decide
‘[All] Courts make decisions on the evidence that is presented [and] to that extent, the Court is the servant of the evidence that is provided by the parties … [Whilst] the Court has an overall directing role in identifying the type and nature of evidence that it requires to make decisions, [because] ultimately those decisions must be faithful to the evidence that is capable of being accepted … It would … be illogical for the Court to arrive at a different position from that which is jointly argued for on the basis of evidence which is jointly accepted as valid.’ (Her Honour Judge Parry in MB v Surrey County Council  EWCOP B27 (16 October 2017). While it is difficult for a court to take a different approach to that of the parties, the court’s jurisdiction is ultimately an inquisitorial one, and ultimately capacity is a question of fact for the court to decide itself, on the balance of probabilities, taking into account the asymmetry introduced by the presumption of capacity. An adult is presumed to have the mental capacity to make a particular decision, until the contrary is proved, Mental Capacity Act 2005 (‘MCA 2005’), Section 1(2) (the ‘Statutory Presumption’). The burden of proof rests on those asserting that the individual does not have the capacity to take the particular decision in question. In deciding whether or not someone has capacity to enter into a particular transaction or make a particular decision, the standard of proof is the civil standard, the balance of probabilities, MCA 2005, Section 2(4). In other words having decided what the facts are, and having applied the law to those facts, the judge must decide whether on balance the individual is more likely to have capacity, or more likely to lack capacity to do something.
As observed by District Judge Glentworth in SL, Re  EWCOP 5 (31 March 2017):
‘In CC v. KK and STCC  EWHC 2136 (COP) Mr Justice Baker set out what is required of the court when assessing capacity at paragraph 24 as follows, “… when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion.’
… Bailey v. Warren  EWCA Civ 51 also makes it clear that the judge is best placed to consider how the nature of the particular proceedings impacts on the issue of capacity as well as the type of decisions which are likely to arise as part of the proceedings. Reference is made to the Civil Procedure Rules 1998 (CPR) and specifically to rule 21 which has now been amended to take account of the provisions of the MCA. Rule 21.2 CPR provides that a protected party must have a litigation friend to conduct proceedings on her behalf. A protected party is defined at rule 21.1 as, ‘a party or an intended party who lacks capacity to conduct the proceedings’. Rule 21.1(c) provides that the phrase ‘lacks capacity’ means lacks capacity within the MCA.’
Where having regained capacity to make decisions about his care P, refuses care resulting in loss of capacity to make decisions about care, the court has the power to make ‘contingent’ declarations and decisions in order to put in place a safety net regime.
Best interests decision-making
The defining characteristic of proceedings in the COP is ‘best interests’ decision making, which requires that P’s interests are paramount. The legal framework was recently stated by Mr Justice Hayden in Abertawe Bro Morgannwg University Local Health Board v RY & Anor (Rev 1)  EWCOP 2 (08 February 2017) as follows:
‘The starting point for consideration of “best interests” is s4 Mental Capacity Act 2005. In this case a number of the s4 provisions require to be highlighted:
(6) He must consider, so far as is reasonably ascertainable—
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
The Code of Practice to the Mental Capacity Act also require careful consideration…
I note that in Wye Valley NHS Trust v B  ECOP 60 Peter Jackson J was also able to identify what he termed P’s “intrinsic nature” and “core qualities” which weighed heavily in the balance when evaluating ‘best interests’.
In London Borough of Brent v NB  EWCOP 34 (25 October 2017), Her Honour Judge Hilder summarised the law as follows:
‘Fundamental to the Court’s consideration of DY’s [the case manager] proposal is the principle set out at section 1(5) of the Mental Capacity Act 2005: an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done or made, in his best interests.
Section 4 of the Act provides that
(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of –
(a) The person’s age of appearance, or
(b) A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider –
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as is reasonably practicable, permit and encourage the person to participate, or improved his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, as far as is reasonably ascertainable –
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence hid decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) Anyone engaged in caring for tha person or interested in his welfare,
(c ) Any done of a lasting power of attorney granted by the person, and
(d ) Any deputy appointed for the person by the court,
as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).
In seeking to apply the provisions of section 1 and section 4 of the Act, I derive some assistance from the judgment of Munby J (as he then was) in the matter of ITW v. Z, M & Ors  EWHC 2525 at paragraphs 32 – 36:
“ i)….the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”.
ii)…the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature of factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
iii)….there may, in the particular case, be one or more features of factors which….are of “magnetic importance” in influencing or even determining the outcome….
i).. P’s wishes and feelings will always be a significant factor to which the court must pay close regard:
ii) …the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific… One cannot, as it were, attribute any particular a piori weight or importance to P’s wishes and feelings: it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P’s wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic.
iii)…in considering the weight and importance to be attached to P’s wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasis that they are by no means limited to, such matters as:
a) The degree of P’s incapacity, for the nearer to the borderline the more weight must in principle be attached to P’s wishes and feelings…
b) The strength and consistency of the views being expressed by P;
c) The possible impact on P of knowledge that her wishes and feelings are not being given effect to…
d) The extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
e) Crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests.
I also have regard to the decision of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v. James  UKSC 67. Baroness Hale noted that the Act gives limited guidance about best interests. At  she said:
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
As she went on [44 – 45], the purpose then of the best interests test is “to consider matters from the patient’s point of view.”
Where the protected person is able to express wishes and feelings about the decision in issue, the Court must decide what weight to give them. I have regard to the decision of Jackson J in X NHS Trust v. B (by his Litigation Friend, the Official Solicitor  EWCOP 60. He concluded that Mr. B lacked capacity to make a decision concerning surgery, and went on to consider the weight to be given to his expressed wishes, in particular at paragraph 10:
“…there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important…. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront than it would be to others who are more fortunate.”
I have considered also the decision of the Court of Appeal in K v. A Local Authority  EWCA Civ 79. The circumstances of that case included a concern that P was in an environment in which he could not articulate his own wishes, as opposed to what he believed to be the wishes of his father; and the proposal in issue was a move to supported living on a trial basis. The first instance judge had cited with approval the following passage from another case:
…it is very much the approach when dealing with incapacitated adults that the medical, educational and social authorities do their very best to nurture and facilitate any skills which the incapacitated adult may have to help them in moving, where possible, towards a greater degree of independence in the way they live their lives. Thus whilst in many cases the family may be the providers of care and nurture for such adults, there seems to me to be a philosophical and practical shift towards ensuring as great a degree of independence in living arrangements as is possible.”
In the Court of Appeal, Thorpe LJ said at paragraphs 30 and 35:
“In my judgment it is unnecessary to enter any investigation of social care policy or whether have been philosophical and practical shifts. …. The safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the s 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of art 8 rights and whether that violation is nevertheless necessary and proportionate.”’
In DM v Y City Council  EWCOP 13 (15 June 2017), commenting upon the weight to be attached to P’s wishes and feelings The Honourable Mr Justice Bodey remarked:
‘A major consideration under S4 of the Act is the individual’s past and present wishes and feelings and the beliefs, values and other factors which the individual would be likely to consider if he had the capacity to do so. Plainly the weight to be attached to those wishes and feelings is case specific and fact specific. Everything depends on the individual circumstances of the particular person concerned and the particular case. I have to bear in mind how near to the borderline of capacity [P] is; the nearer the line the more weight may be attached to his wishes and feelings. I must also pay regard to the strength and consistency of the views which he has expressed about being able to drink, together with the possible adverse impact on him (anger, disappointment, frustration etc) of knowing that his wishes and feelings have not been allowed to prevail.
The purpose of the ‘best interests test’ is to look at matters from the incapacitated person’s point of view (Aintree University Hospitals NHS Foundation Trust -v- James  UKSC 76). As Munby J, as he then was, said in Local Authority X -v- MM & Another  EWHC 2003 at paragraph 120: “Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is making someone safer if it merely makes them miserable?”.’
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