ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 3: THERE IS NO MIRACULOUS OSMOTIC PROCESS BY WHICH YOUR TRIBUNAL WILL ABSORB EVERYTHING YOU HAVE PUT BEFORE IT

Today I am recommending you read the work of Judge Swami Raghaven in the Law Society Advocacy Section “Top tips for tribunal advocacy”. It is aimed at solicitors who conduct cases before tribunals. The article contains much of interest to advocates and the key points are not confined to tribunal hearings.   In particular knowing the correct form of address and not assuming that the judges will, by some magical process of osmosis, absorbed all the papers and authorities you have put before them.

“Good advocacy is a bit like acting – it often passes unnoticed, and it’s not until you see it done badly that you appreciate how skilful professional actors are.”

KEY POINTS

The judge sets out key points for advocates. Separating these into: before the hearing and at the hearing.  (There is also a useful section on “after the hearing).

Beforehand

1. Before the hearing do your homework on the relevant rules, practice and procedure of the particular tribunal you are apeparing.

“There’s no point turning up with the White Book and littering your submissions with references to the CPR. You’ll fare much better by getting to grips with the rather more slim-line tribunal rules, and by making any applications with reference to those.”

2. Know the correct form of address “ your panel are more likely to be embarrassed rather than flattered if you shoot too high.” [“M’Lady”, “M’Lord”, “Your Majesties” are not – generally  – the correct form of address for tribunal judges”.]

3. Talk to your opponent beforehand.

At the hearing

1. Check the panel has had a chance to read the documents beforehand, and build in reading time.
2. Don’t talk too quickly or rush your questions to witnesses.

 “Don’t assume that the tribunal will by some miraculous osmotic process absorb all the materials and authorities you’ve put before it. You need to draw out the relevant facts that you’re inviting the tribunal to find from the evidence it has heard. When it comes to case law, you need to clearly articulate what legal propositions you’re asking the tribunal to draw.”

3. Be prepared for the panel to ask questions of you and your witnesses.

“Make sure your closing submissions do not simply rehearse what has been submitted before: they should take proper account of and refer back to points that have arisen on the evidence heard. If the other side have made further points, make sure you have made it clear to the tribunal in any reply whether you disagree with them, and if so, why.”