ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 7: HOW TO WIN YOUR CASE: GUIDANCE FROM SCOTLAND

This series looks at guidance on advocacy given by judges.  We have looked at advice given from judges around the globe. Today we go to Scotland. The Lord President’s address to the Faculty of Advocates in an event to mark International Women’s Day.  The guidance- “How to win your case: What the court expects from advocates”.  As ever this summary is no substitute for reading the original. 

ADVOCACY IS A TEAM EFFORT

The Lord President recognises that advocacy is a team effort. In giving this address.

“I include not only all those with rights of audience, but also those engaged in the preparation of cases behind the scenes; the solicitors, the trainees, the para-legals and others. In the modern era the conduct and preparation of litigation is often a team effort. The finished product will almost always depend in large measure on the diligence and preparation of all of those involved”

PLEADINGS

Bear in mind there are differences in procedure in the Scottish courts. However some of the points made in relation to the advocate’s role are universal.

“One of the central skills which the advocate must develop is the effective distillation of complex ideas into simple, concise language. This skill is particularly required in written pleadings. Counsel should use modern, plain English in both written pleadings and oral submissions. The accuracy and clarity of the language, which is used to express ideas, are undoubtedly what will ultimately impress the court and may be decisive in a narrow case. “

APPEALS

“If matters are not properly focussed in the grounds of appeal from the outset, it can be exceedingly difficult to get an appeal back on track. What is needed are short, clear propositions on, for example, where the court or tribunal at first instance erred.”

“In terms of the other documentation, the points which have been made already about the purpose of these being to assist the court, rather than to obfuscate matters, equally applies. Discretion is required about what documents require to be included in the appendix. On a semi-regular basis, the Inner House is presented with hundreds and even thousands of pages of documents, when only a handful are ever referred to either in the Note of Argument or in oral submissions. This should not happen. A properly prepared appendix is one in which only those documents”

BE READY TO ANSWER QUESTIONS

“For judges, as for counsel, preparation in appellate work is significantly frontloaded. Whilst there is no pre-judging the case, in the sense of the court reaching a final view in advance of the hearing, it is likely that those judges who have properly read the papers will have discussed the case in advance, usually immediately before the hearing. That is a natural and predictable consequence of the structure of the system that has had to be adopted to meet modern conditions and demands. It requires counsel to focus on the preparation of the written documents.

This system enables the judges to formulate intelligent questions about the material which they ought to have read. Counsel should be able to answer these questions from a bench, which ought to be able to participate at the hearing with a sound, if necessarily incomplete, knowledge of what is in the papers or what they mean. If counsel is asked a question by the court, he or she must answer it. Whilst avoiding the question might seem a clever move to the advocate, it usually serves only to undermine the argument far more than anything that the opposition might say about the issue.”

90% PREPARATION: 10% SKILL

“To conclude, the court expects assistance from counsel in all matters on which there is to be dialogue, both written and oral, between the court and parties. That assistance takes the form of concise and focussed examinations of witnesses at first 16 instance, and the timeous delivery of legally sound and well-prepared pleadings and submissions at all levels. That is what makes a good and effective advocate in the eyes of the court. When I passed advocate, almost 41 years ago, the Lord Ordinary swearing me – and Lord Malcolm and Lady Clark – in was Lord Ross. He said to us that advocacy was 90% preparation and 10% skill. I agree with that, but, as he also wisely said, it is the combination of both that will tilt the narrow case in your favour”