• Cayman Islands and offshore trust litigation
• Virtual Hearing Protocol
• Virtual advocacy
• Annex 3 of Practice Direction 32
• Trial advocacy
Cayman Islands and offshore trust litigation
While rights of general admission are only granted to persons resident in the Cayman Islands, as a senior, experienced and highly specialised practising member of the Chancery Bar of England & Wales, I can appear as counsel in any hearing in the Courts of Cayman, if granted limited admission on a case specific basis, i.e. as and when required, where I can add value in a complex international trust/breach of fiduciary duty dispute.
In order to be admitted, I would need to be instructed by a local attorney who would provide a supporting affidavit about why my services are required in the case that is before the Cayman Islands Court, i.e. because of my specialist knowledge and expertise.
The practice would appear to be the same in the courts of the British Virgin Islands.
In Australia and New Zealand I can also apply for temporary audience rights from their Law Societies.
Where the hearing takes place remotely, I can appear as an advocate working from 1 Essex Court, or at a solicitors’ office in London.
I am investigating whether the same rule applies to international trust litigation hearings in the courts of: Bahamas; Bermuda; Dubai (DIFC Courts); Gibraltar; Isle of Man; Malaysia; and Singapore. If you are a trust practitioner in any of these jurisdictions and would like to contact me to enquire about how we can work together in an international trust/breach of fiduciary duty case, please send an introductory email to email@example.com.
As an SCMA accredited mediation advocate, I can represent a party in a virtual mediation in any of these jurisdictions, and again would only act, if instructed by a local attorney.
Virtual hearing protocol
The Civil Justice in England and Wales Protocol Regarding Remote Hearings, 26 March 2020, states;
‘1. The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.
2. … Whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.
3. The method by which all hearings, including remote hearings, are conducted is always a matter for the judge(s), operating in accordance with applicable law, Rules and Practice Directions.
Nothing in this Protocol derogates from the judge’s duty to determine all issues that arise in the case judicially and in accordance with normal principles. Hearings conducted in accordance with this Protocol should, however, be treated for all other purposes as a hearing in accordance with the CPR.
13. Available methods for remote hearings include (non-exhaustively) BT conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone call. But any communication method available to the participants can be considered if appropriate.
14. Before ordering a hearing by court video link, the judge must check with the listing office that suitable facilities are available.
16. Judges, clerks, and/or officials will, in each case, wherever possible, propose to the parties one of three solutions:-
(i) a stated appropriate remote communication method (BT conference call, Skype for Business, court video link, BT MeetMe, Zoom, ordinary telephone call or another method) for the hearing;
(ii) that the case will proceed in court with appropriate precautions to prevent the transmission of Covid 19: or
(iii) that the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with a number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with the hearing in court at the current time.
17. If the parties disagree with the court’s proposal, they may make submissions in writing by email or CE file (if available), copied to the other parties, as to what other proposal would be more appropriate. On receipt of submissions from all parties, the judge(s) will make a binding determination as to the way in which the hearing will take place, and give all of the necessary directions.
18. It will also be open to the court to fix a short remote case management conference in advance of the fixed hearing to allow for directions to be made in relation to the conduct of the hearing, the technology to be used, and/or any other relevant matters.
19. The fact that a hearing is to be a remote hearing and, where possible, the technological method to be employed, will normally be shown in the cause list.
20. The clerk or court official, and the parties, will all need to log in or call in to the dedicated facility in good time for the stated start time of the remote hearing. In a Skype, Zoom or BT call, the judge(s) will then be invited in by the clerk or court official.
21. The hearing will be recorded by the judge’s clerk, a court official or by the judge, if technically possible, unless a recording has been dispensed with under CPR Part 39.9(i). The parties and their legal representatives are not permitted to record the hearing. With the court’s permission, arrangements can be made with privately paid for transcribers.
23. The clerk, court official or the judge(s) must complete the order that is made at the end of the remote hearing. The wording of the order should be discussed and agreed with the parties.
24. The parties should, if necessary, prepare an electronic bundle of documents and an electronic bundle of authorities for each remote hearing. Each electronic bundle should be indexed and paginated and should be provided to the judge’s clerk, court official or to the judge (if no official is available), and to all other representatives and parties well in advance of the hearing.
25. Electronic bundle should contain only documents and authorities that are essential to the remote hearing. Large electronic files can be slow to transmit and unwieldy to use.
26. Electronic bundles can be prepared in .PDF or another format. They must be filed on the CE- file (if available) or sent to the court by link to an online data room (preferred) or email.’
‘HMCTS telephone and video hearings during coronavirus outbreak’ (18 March 2020, updated 30 June 2020) further states,
· ‘For video conferencing we have started using Skype for Business on HMCTS and judicial systems. If you have a video hearing coming up, and you want to join using your computer, you will need to download Skype meetings app for your web browser. If you’re joining using your mobile, you’ll need to download the Skype for Business app in your mobile application store. You will receive instructions and a link to click to join the hearing, as a ‘guest’. When you click on the link, you should follow the browser’s instructions for installing Skype Meetings App. We recommend doing this as early as possible, to be prepared for your hearing. At the time of the hearing, you must go to the Skype Meetings App sign-in page, enter their name, and select “Join”.
· We have increased capacity, undertaken testing, and are now introducing our ‘cloud video platform’ (CVP) for hearings. CVP uses Kinly video conferencing software. These videoconferencing rooms can be accessed through any laptop or video device. We can also use bridging links to communicate with fixed endpoints that use the Justice Video Service, in courts, prisons and police stations.
· Please note, HMCTS does not currently support the use of other video conferencing applications and therefore Skype and CVP should be used.
· Looking ahead, we are expanding the capacity of our video hearings service, which has been tested on a small-scale in specified civil, family and tax tribunal hearing types. Further testing is underway in tax and property tribunals to ensure this bespoke video hearing service is robust and can handle significant volumes of hearings, as quickly as possible. No bespoke software is needed to use the video hearings service, or join hearings in a CVP room.’
Guidance about participation in a remote hearing is set out in ‘How to join telephone and video hearings during coronavirus (COVID-19) outbreak.’
The COMBAR Guidance Note on Remote hearings 12 May 2020: https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf, states:
‘19. A number of alternative video conferencing platforms are available, but only if the Court is prepared to approve their use in advance. These include (in no particular order) Zoom, BlueJeans, Lifesize, GoToMeeting, WebEx, Starleaf and others. Details of the technical requirements for these products can be found as follows: 13 a) Zoom: https://zoom.us; 14 b) BlueJeans: https://www.bluejeans.com; c) Lifesize: https://www.lifesize.com; d) GoToMeeting: https://www.gotomeeting.com/en-gb; e) WebEx: https://www.webex.com/video-conferencing; f) Starleaf: https://www.starleaf.com.
20. In each case, where it is proposed to use video conferencing technology it is necessary to ensure that the video conferencing platform can be operated by every participant in the trial.
21. As a result, confirmation should be sought from the Court about its ability to use the particular platform. Those enquiries should extend to an enquiry as to whether the Court will need to be provided with additional hardware (e.g. a standalone laptop). Enquiries of this kind should be directed to the clerk to the Judge who will hear the case. Similar confirmation should be sought of every other participant in the hearing. If and to the extent that there are any issues with any participant’s operation of the platform, these should be identified at the PTR.
22. Effective operation of any video conferencing platform will depend upon the users’ internet bandwidths (both their upload and download speeds). The required bandwidth for videoconferencing varies from platform to platform and may also vary depending upon the number of concurrent users of the platform. The speed of any individual’s broadband connection (i.e. the bandwidth available to that user) will depend on factors including the time of day and the number of people in the relevant household using the internet at the same time.’
The generic logistical issues to address, are highlighted in the COMBAR Guidance Note on Remote hearings 12 May 2020: https://www.combar.com/wp-content/uploads/2020/06/COMBAR-Guidance-Note-on-Remote-Hearings-2nd-edition-23-June-2020-002.pdf (from which the following recommendations have been extrapolated):
• The parties will need to test the functioning of any applicable video conferencing platform on their computer set-up in good time ahead of the hearing and it will generally be sensible to undertake a ‘dummy run’ of the relevant platform with instructing solicitors 48 hours prior to the hearing to ensure that the relevant technological requirements for the hearing can be met.
• In addition, a dummy run should be arranged with the clerk to the Judge hearing the case.
• It will be useful to liaise with the clerk to the Judge ahead of the hearing as to whether the Judge would specifically prefer hard or electronic copies (or both).
• The success of a remote hearing is heavily dependent upon the relative ease with which the participants can refer to documents at the hearing.
• Electronic bundles will therefore be the norm.
• However, it would be sensible also for the Judge and counsel to have available to them hard copy bundles of the pleadings, and in addition the core bundle should normally be produced in hard copy for the Judge and counsel.
• Any hard copy bundles must be identically paginated to any electronic copies of the same bundles.
• The parties should liaise with the Judge’s clerk in good time before the hearing regarding the delivery of any hard copy bundles.
• Experience to date suggests that skeleton arguments have taken on increased importance in remote hearings. That being so, it may be appropriate in some cases to depart from the typical page limits that apply under the [applicable] Court Guide and/or to ensure that the written submissions are provided earlier than the dates prescribed in that Guide.
• It has been observed that “remote hearings remain court hearings and the solemnity of the occasion should be observed as closely as it is in a courtroom. Within this context, and insofar as is possible, the decorum of a court hearing should be maintained commensurate with the gravity and seriousness of the issues being decided in a formal legal arena. Steps should be taken to avoid matters that detract from the ordinary gravitas of a court hearing”.
• In keeping with these requirements, advocates should dress as if they were attending Court, should ensure (to the extent possible) that the background visible on screen is appropriate for a Court hearing and should ensure that they are not interrupted or distracted during the course of the hearing. The use of in-ear headphones is permitted and encouraged if they assist with audibility.
• Useful guidance on advocacy at remote hearings (and as to common technological mistakes) has been published by the Inns of Court College of Advocacy, https://www.icca.ac.uk/wp-content/uploads/2020/04/Principles-for-Remote-Advocacy-1.pdf.
• Technical issues may arise in remote hearings. To the extent possible, steps should be taken ahead of the hearing to agree how notification is to be provided of the occurrence of a technical issue. For example, it may be agreed that the participants and the Court will be alerted to the problem by telephone, text or email.
• Judges and other participants have observed that using technology to conduct hearings is unusually tiring. In addition, participant may have caring or other responsibilities that may create difficulty in attending during normal court hours. Careful thought should, therefore, be given to the appropriate timing and length of each hearing day and to the breaks that are required throughout the day. It will normally be sensible to take a short break mid-morning and mid-afternoon – and it will be necessary to do this where stenographers and/or interpreters are involved.
• Counsel will need to be able to maintain a separate line of communication with other members of the counsel team and their instructing solicitors. The manner in which this is done is not a matter of concern for the Court, but care will need to be taken to ensure that the method of communication does not interfere with the hearing (for example, through noisy notifications) and that the communications are kept confidential.
• Counsel should also ensure that their separate line of communication does not result in “unauthorised transmission of an image of, or sound made by, another person while the other person is viewing or listening to a broadcast” of a remote hearing, contrary to Section 85B of the Courts Act 2003 (as amended by the Coronavirus Act 2020).
• Moreover, the normal etiquette of a Court hearing must be observed. You, your solicitors or your clients may not be able to control whether or not their behaviour is visible or audible – but, in any event, the fact that a hearing is taking place remotely is not an excuse for behaving differently than you would were you in Court. Please remember that the advocate can be seen at all times (even when he or she is not making submissions).
Help the judge to navigate his way around the contents of the electronic bundle.
When presenting your submissions, your Skeleton Argument is your map:
‘Don’t read from it.
But do quote from it.
Begin your argument by capturing the bull’s-eye point in a neat opening sentence.
Then identify what you say are the facts, pointing out where you have mentioned them in your Skeleton Argument.
Now develop where you say there is an argument with your opponent on the facts, and why you should win it.
Explain how you suggest the law fits the facts as you suggest they are. Identify where the arguments lie, and explain why your argument beats the other side, reminding the judge of what is in the skeleton.
Take your time.’ (‘The Devil’s Advocate, by Iain Morley QC (2009), Sweet & Maxwell, p.106).
In a virtual hearing, facial expressions and gestures are even more apparent to the judge than they are in the court-room. Advocates should therefore 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 [Judge] to do in court is to use [his] second best device for gathering understanding. And [Judges] 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 (2004), by Keith Evans. The Capitol.net, p.8).
The following general guidance is set out in ‘Principles for remote advocacy’, published by the Inns of Court College of advocacy 2020:
• Judges and advocates who already have experience with this practice consistently remark that effective remote advocacy depends not on new skills. It rewards the bedrock skills: a clearly articulated and logical case, supported by selective use of authority and documents, and focused examination of witnesses. With careful preparation and attention to those core skills, it is possible to make remote hearings, in appropriate cases, highly effective.
• As far as possible the online hearing should emulate a traditional hearing. This advice applies to advocates and witnesses alike.
• Establish a speaking protocol at the outset. This may involve participants, when introduced, acknowledging the introduction by raising their hand rather than speaking. This is preferable to a brief nod which may be imperceptible on small thumbnail videos.
• You must not record a hearing but be prepared to remind the judge to record the hearing.
• When not speaking, press mute. All participants should do this when not speaking.
• When it is your turn to speak, remember to unmute your microphone. Speak directly into the microphone.
• Where multiple devices are in use, all should be muted and only one un-muted when required.
• Advocates should avoid using headsets (combined over ear headphones and microphone), since online hearings should emulate in-person hearings as closely as possible. However, the use of discrete in-ear headphones is usually permissible and can assist with preserving the confidentiality of proceedings. When in doubt seek the guidance of the court or tribunal in advance.
• Avoid setting your device to the highest volume, since this is likely to cause feedback when you are speaking.
• Encourage participants to raise their hand when wishing to interrupt a speaker, or otherwise use the facility to do this on the software provided.
• Maintain eye contact with the camera. This will ensure you appear to be looking at your audience. The thumbnail image of the person you are speaking to may be at the bottom of the screen, when the camera in your device is above the screen. If so, this will give the appearance that you are looking down or away from your audience.
• Ensure that you are clearly visible by maintaining a reasonable distance from the camera, to show your head and upper body. Too close in your image may blur and fill the screen, too far and you will appear distant and detached from the hearing. Some cameras zoom in and out depending on the movement of the subject. This should be avoided.
• Advise everyone to be mindful, if using Skype for Business that the camera records a wider area than one sees on one’s own screen.
• If you are using the camera on your laptop, typing when you are visible is liable to cause the camera (in your image) to shake. Try to use a separate keyboard or a separate camera mounted away from the laptop.
• Remember that others are watching even if you cannot see them. In cases involving multiple participants, thumbnail video images may appear on screen, but these thumbnails often move off screen to allow participants to see the face of the person talking, or the document being shared. Observers may also be present. As such, often there are people present at the hearing who are not visible.
• Ensure that you are well lit by natural or artificial light. Avoid sitting with your back to a window or other light source. This can result in only your silhouette appearing on the screen.
• Dress professionally, but not in robes unless specifically asked to do so, and appear as if attending the court or tribunal in person.
• Most hearings take place with parties seated. If in doubt, check with the court. If you prefer to stand, adjust your camera accordingly.
• Download an app to enable you to mark up the bundle such as Acrobat DC or PDF Expert.
• Save and keep all your work (including prep and bundles) in a GDPR-compliant cloud not on your device. Whichever cloud you use, it is important to store documents systematically so you can find them easily. Keep a clean duplicate of your bundle, so that you have one clean bundle and one that is marked up. This way, if the judge asks for a document to be handed up, you have a clean copy.
• The numbers on the pagination can be quite small. Before a hearing, it helps to expand them (and change them to a bright colour) so that you can see them more clearly and move around the bundle more quickly.
• Use an agreed indexed electronic bundle of documents which can be referred to between relevant parties by section, page and paragraph number without the need to share the document on the screen or to hold up physical documents.
• Minimise the size of the hearing bundle. It is tempting, since the bundle is electronic, to include anything at all that might conceivably be relevant. Resist that temptation. Big files are harder to handle and cause all sorts of other problems (e.g. rejection by email filters). That goes for authorities, too, of course.
• Make sure you can find documents you need at speed. Advocates are advised to have a list of key documents, or a hyperlinked index. Bookmark critical documents. Make sure all references in your notes are absolutely accurate and precise and that references in the skeleton argument are to the pages in the electronic bundle, not some historic paper version.
• You must be able to provide, without delay, the reference to the documents to which you want to refer. Always give the reference, not just a description, and give people time to find the document.
• Make sure you can access two documents simultaneously (e.g. on different devices or windows). You often need both to follow a document that someone else is referring to and find another document for your own purposes.
• Do not let the difficulty in handling documents deflect you from using documents effectively. In civil cases, documents are often very important. If you have a point to make about the document you nearly always need to make sure that you, the witness, and the judge all have that document in front of them. Summaries are never effective.
• If you unexpectedly need to share a document with the court or tribunal which is not in the electronic bundle, but which cannot be made visible to all observers by sharing on screen, agreement must be reached as to the appropriate channel of communication to be used, e.g. sending the document to the court or tribunal by email.
• Beware that it is likely that rather more weight will fall on the written argument than it does in typical hearings.
• Use the written argument to provide a clear roadmap of the key issues and how you expect to approach them.
• Use the written argument to provide a way of finding any key document, especially if you are dealing with a complex body of evidence. Recognise that it is harder to follow a remote presentation, and that the judge may well need an aide memoire that can be consulted before and after the hearing.
• Do not, however, be tempted to shoehorn a mass of material of secondary importance into the written argument. If anything, this is even worse when the oral hearing is compressed, because it is likely to leave your written argument disconnected from your oral presentation.
• Give careful thought to which parts of the argument will require oral presentation expansion, and how you are going to do that.
• Mark documents in arguments for ease by agreeing a key with the other side e.g. [1/1/1] = bundle 1, tab 1, page 1.
• Your preparation needs to be more meticulous than it would be for a normal hearing. In remote hearing, time is at a premium. Remote communication has less impact and less subtlety than face-to-face communication.
• Write a more detailed script for submissions and cross-examination questions than you usually would.
• Anticipate questions that the judge is likely to raise, or points that your opponent may develop orally, and discuss them with your team in advance.
• Simplify your arguments as much as you possibly can, remembering that if you “lose the judge” you are less likely to notice that you have done so than you are in court.
• A loss of non-verbal communication (and aspects of ”style”) are lost when working remotely. Concentrate on the substance.
• Brevity and precision are key. In the event that either sound or video quality is interrupted during a question or submission, repetition may be required, a process far easier to complete with succinct questions or submissions.
• Aim to present your case in a low-key courteous and measured way. Be careful not to have too much mental overload during a hearing.
• Be prepared for the fact that remotely conducted hearings are more taxing than a conventional hearing. Do not be shy of asking for breaks.
• In a remote hearing, a brief delay typically occurs between the video image of the person speaking and their voice being heard by the court/tribunal and witness. This connection delay may lead participants to believe a person has finished speaking before they have, in fact, done so and is liable to result in participants inadvertently speaking over one another.
• Do not interrupt. Let a speaker finish before speaking. Be especially careful not to interrupt a witness’s answer or a judge’s question.
• When you are speaking, allow pauses for judicial questions. You may even want to invite them.
• If you are speaking and become aware that someone else is trying to speak, pause to allow them to do so.
• Do not fill pauses. Gaps between speakers (e.g. while waiting for a witness to answer) are more common with remote communication than when you are together in court.
• If you feel compelled to interrupt and “get to your feet”, you may want to raise your hand to the tribunal as an indication of wanting to do so.
• If you share your screen, be careful. When you share your screen, everything is visible online, including pop-up notifications, screensaver photographs etc. For safety’s sake, ensure your screen is clear and that notifications are disabled. Documents can be shared without sharing your screen or (best) referred to in an agreed bundle.
• You will probably want to communicate with your own team but consider how this is best done. Receiving a steady stream of emails and WhatsApp messages from many different people is not helpful. Agree how your team will communicate but ask for communications to be limited to what is really necessary and consider channelling all communications through a single team member who can act as a filter.
• When leaving a hearing, even if going to another room, ensure that the microphone is muted, and the video disabled until you return. Alternatively, you should sign out of the meeting and sign in again upon returning.
The COMBAR Guidance Note also state:
‘If the bundles are to be produced electronically, it is essential that appropriate thought is given to the use of those bundles at the hearing. In particular (taking account of guidance issued by the Supreme Court), the following approach is recommended in all cases in which .pdf bundles are proposed:
a) only essential documents should be included in the electronic bundles;
b) the electronic bundle should (unless unusually voluminous) be a single .pdf file which is capable of being word-searched;
c) the .pdf file should be prefaced to by an index which contains hyperlinks to the relevant documents and, where appropriate, relevant parts of documents;
d) the electronic bundle should be paginated from first to last page, regardless of whether multiple documents have been combined together (and inclusive of any indices);
e) the default display size of all pages must always be 100%;
f) wherever possible, text on all pages of the .pdf must be capable of being selected and highlighted. Pages of text should not be formatted as images [which may require scanned documents and images within a PDF to be processed using appropriate Optical Character Recognition (OCR) software before the final version of the PDF bundle is saved. Some PDF management software solutions come with OCR capabilities inbuilt];
g) the “bookmarks” function must be used to delineate the location of different documents within the .pdf file. The bookmarks should be labelled both to identify the relevant document and to show the page number. Bookmark labels should be neutral and descriptive only;
h) the resolution on the bundle should be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another;
i) to the extent possible, hyperlinks should be used within the electronic bundle and between skeleton arguments and the bundle;
j) where both hard copy and electronic bundles are produced, identical pagination should be used in both bundles. This may mean in the hard copy bundles, paginating indices etc. that appear at the beginning of the bundle.
Where a .pdf bundle will be used in a hearing, advocates should consider obtaining and using .pdf management software enabling search and personalized highlighting, annotation, bookmarking and indexing of the .pdf bundle. Pdf management software solutions, with features relevant to the creation of .pdf bundles including pagination and bookmarking, are available for purchase: Examples include Adobe Acrobat Pro DC (for MacBook’s and Windows machines) and PDF Expert version 7 (for MacBook’s and iPads). Please note that all Judges of the Commercial Court have the basic version of Adobe Acrobat which allows for searching, selecting, and highlighting text. They do not have Adobe Acrobat Pro.’
Annex 3 of Practice Direction 32
The taking of evidence from witnesses by video link is addressed by the Practice Direction to CPR Part 32.
Annex 3 of the PD states:
‘VIDEO CONFERENCING GUIDANCE
This guidance is for the use of video conferencing (VCF) in civil proceedings. It is in part based, with permission, upon the protocol of the Federal Court of Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise.
Video conferencing generally
1. The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the judge sits is referred to as the ‘local site’. The other site or sites to and from which transmission is made are referred to as ‘the remote site’ and in any particular case any such site may be another courtroom. The guidance applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceedings (for example, interim applications, case management conferences, pre-trial reviews).
2. VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.
3. When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in a trial court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents.
4. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (Legalisation Office) firstname.lastname@example.org with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.
5. Time zone differences need to be considered when a witness abroad is to be examined in England or Wales by VCF. The convenience of the witness, the parties, their representatives and the court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours.
6. Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to ‘speak over’ the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking.
7. With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.
8. The court’s permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. The application for a direction should be made to the Master, District Judge or Judge, as may be appropriate. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need tobe made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’.
9. Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions.
10. The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer, diary manager or other court officer. The court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughoutthe transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes.
11. It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission.
12. If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners’ table encompasses all legal representatives so that the viewer can see everyone seated there.
13. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the court has determined that they should be heard in private). If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend.
14. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge’s seat.
15. In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the court, no other recording of them must be made. The court will direct what is to happen to the back-up recording.
16. Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath.
17. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.
18. Additional documents are sometimes quite properly introduced during the course of a witness’s evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites.
19. The procedure for conducting the transmission will be determined by the judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the judge will need to decide whether court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from courtroom to courtroom. It might not be when a commercial facility is being used.
20. At the beginning of the transmission, the judge will probably wish to introduce himself and the advocates to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. He will probably wish to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. He will probably also wish to inform the witness of the matters referred to in paragraphs 6 and 7 above (co-ordination of picture with sound, and picture quality).
21. The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness’s evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.’
• Know where you are going!
• Big picture
• Case theory & theme
• Legal reason
• Witnesses of fact
• Opening submissions
• Examination in chief
• Closing speech
• Psychology of advocacy
‘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).
Advocacy is the art of persuasion.
Being an advocate is about winning within the rules.
Adversarial advocacy ‘is a well-mannered contest, in which there are rules, and it is possible to win, even in the face of seemingly overwhelming evidence if you play the rules better than your opponent, and learn to be a more persuasive advocate than your opponent… Advocates try to win their cases within the rules, irrespective of the truth, irrespective of that hopelessness…cases will often turn on what evidence within the rules an advocate has skilfully managed to keep suppressed. Often it can be more important when questioning witnesses to know what not to ask, to know what areas will get you into trouble with the witness, and so avoid them.’ (Morley).
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).
‘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.’ [Advocates].
‘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].
Know where you are going!
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:
1. where he was going;
2. when he arrived, where he was; and
3. and after he had been there, 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.’
‘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.
2. 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.
3. 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.’
‘[The] purpose of doing the closing speech when you receive the brief is it lights up precisely what you want from each witness. Your closing speech is what you want to be able to say to the [judge]. It is a mixture of comment and reference to the evidence. Once you know what you want to say to the [judge], you will know what evidence you will seek from the witnesses. Once you know what comments you want to be able to make to the [judge] at the end of the trial based on that evidence, it is easy to work out precisely what you want form each witness. So, in preparing the closing speech, you find the natural consequence is that instinctively you prepare your examination of the witnesses… you know what you would like them to say, and can gear your preparation towards thinking about exactly how you will get them to say it… [so that you can] elicit from each witness only what you need for the closing speech… The closing speech is your map. It tells you where you are going, what you have to do, where you have been, and where you have to get to. It tells you everything you will want to do at trial… [From] your closing speech, you identify the comment you want to make. From the comment you want to make, you identify the facts you want to hear. From the facts you want to hear, you identify the questions you want to ask and of whom.’ [Morley].
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.
Case theory & theme
‘[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).
‘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 thoroughly 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 premise 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 conclusion 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).
‘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 argument 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 answer it.
Expose and ridicule the following common fallacies where they are the foundation of your opponent’s argument:
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. intoleration of any criticism of Brexit.
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.’
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.’
Witnesses of fact
The case will be proved by the witnesses, not by the advocate. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.
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.
Do not assume your judge knows all the law, or even any of it. Remind him of it. Refer to the authorities – slowly. Read the relevant sections of statute – slowly. Make sure your judge is on the same page, at the same paragraph, at the same word. Pause, and allow the judge to arrive at the same point as you… it is best to assume it is all new, and in this way you can’t go wrong.
‘[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].
In written submissions, your opening paragraph should capture neatly and succinctly the overall point you wish to make, and why. ‘It should be a clear summary of your position. After your opening paragraph provide the judge with a structure for the detail of your submission. List the areas you will cover. Allow him to write the area down. Watch the pen. Now take him to each area, and begin each area with a clear summary of it. Then the detail…[If] the judge can follow your argument easily, this gives you respect and will help make you persuasive. And what helps the judge to follow the argument is an opening clear summary. It provides a map. Judges love maps. With a map, they will understand where you are going and why. You become easier to understand. And if you are easier to understand, you may become dangerously close to being irresistible.’ [Morley].
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 understand 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).
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.a. 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.
b. 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.
c. 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.
d. 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?
e. 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).
‘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:
1. Expertise questions: How credible is E as an expert source?
2. Field question: Is E an expert in the field that A is in?
3. Opinion question: What did E assert that implies A?
4. Trustworthiness question: Is E personally reliable as a source?
5. Consistency question: Is A consistent with what other experts assert?
6. 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 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 closing speech
‘Everything throughout the case should have been geared toward the closing speech… All the evidence elicited should be weighed against how it will affect closing… Closing is when you draw together all of the case, all the answers from the witnesses, all the little incidents which arose at trial, and you present your theory of the case. The speech you make in court ought to be within 80% of the speech you sketched on receipt of the brief: if so you have run the trial well; if not, something has gone wrong.
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 that you win.
Make the route by which you guide the [judge] home irresistible. Make it so [that the judge] cannot help but willingly and happily agree with you… Look for a quality of irresistibility in your arguments. It is the hallmark of a truly great advocate. 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).
‘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).
The psychology of advocacy
Always try to think like the judge and not the client.
‘Our job is to show [the judge] what to think.. People who tell instruct. People who show, assist. No one likes being told what to do. But everyone likes assistance. Advocates should try to ensure [the judge] sees them as assistance. It is much easier to persuade people who believe you are helping them. Avoid being seen as a gladiator. It is difficult to persuade people who believe you are locked in a contest with them. Be wary of being seen to be against the judge, or the opposition advocate, or the witnesses: that is how you become seen as a gladiator… Keep the word “assistance” at the forefront of your presentation to the [judge]…We should project the notion we are a facilitator. A facilitator is an advocate who makes it easier for the [judge] to agree with our case. Imagine yourself as a guide. We show the [judge] the way home. We facilitate [the] journey. We make it easy to follow our route.’ (Morley).
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 then 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 bring 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.’
Advocacy, by Robert McPeake, Oxford University Press (‘Advocacy’).
Advocates, by David Pannick, Oxford University Press (‘Advocates’).
A Practical Approach to Alternative Dispute Resolution, by Susan Blake, Julie Browne & Stuart Sime, Oxford University Press (‘A Practical Approach to Alternative Dispute Resolution’).
A Practical Approach To Effective Litigation, by Susan Blake, Oxford University Press (‘Susan Blake’).
Blackstone’s Civil Practice (‘Blackstone’s’).
Common Sense Rules of Advocacy for Lawyers, by Keith Evans, TheCapitol.Net,Inc (‘Common Sense Rules of Advocacy for Lawyers’).
Expert Evidence: Law & Practice, by Tristram Hodgkinson and Mark James, Sweet & Maxwell (‘Expert Evidence’).
Modern Trial Advocacy, by Steven Lubet, National Institute for Trial Advocacy (‘Lubet’).
Nuts and Bolts of Trial Advocacy, a talk presented by Andrew Hochhauser QC, 23 March 2010, at Inner Temple Hall, (Hochhauser).
Professional Ethics, edited by Robert McPeake, Oxford University Press (‘Ethics’).
The Business of Judging, by Tom Bingham (Senior Law Lord), Oxford University Press (‘Tom Bingham’).
The Devil’s Advocate, by Ian Morley QC, Sweet & Maxwell (‘Morley’).
The Golden Rules of Advocacy, by Keith Evans, Oxford University Press (‘Evans’).
Trial Techniques, by Thomas A. Mauet, Wolters Kluwer Law & Business (‘Thomas Mauet’).
365 Daily Advocacy Tips, by Leslie Cuthbert, Bloomsbury Professional (‘Cuthbert’).