COVID REPEATS 19: THOSE ADVOCATES WHO ARE GOING TO HELL (AND NOT BECAUSE THEY ARE THE DEVIL’S ADVOCATES)
Some advocates are going to hell. This may seem obvious, but the details were fleshed out by Lord Justice Irwin when giving a talk to the Professional Negligence Bar Association on the 17th April 2018 . It is possible to…
COVID REPEATS 18: “BEHIND THE DIFFIDENT SMILE OF THE SHYEST JUNIOR IS A CONCEIT OF NAPOLEONIC PROPORTIONS”
Today we travel to Australia and looking again at guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember the main aim of these posts…
COVID REPEATS 14: REVIEW OF “MAY IT PLEASE YOU MADAM”: “THE FIFTH DEFENDANT IS A CAT…”
We are looking again at “May it please you Madam” by retired District Judge Neil Hickman. This is not designed as a guide for advocates, indeed the subtitle is “A little book of legal whimsy”. This does do do the book…
COVID REPEATS 12: THINGS LAWYERS DO TO ANNOY JUDGES: “EVERY PIECE OF PAPER THAT LEAVES YOUR OFFICE IS AN ADVERTISEMENT FOR YOU AND YOUR LAW FIRM”
Here we are looking again at the advice given by the Canadian judge Mr Justice Joseph W. Quinn A Judge’s View: Things Lawyers Do to Annoy Judges; Things They Do to Impress Judges“.* This whole talk is worth reading, for…
THE VULNERABLE CLAIMANT GIVING EVIDENCE: GROUND RULES AND INTERMEDIARIES: “I HAVE STRONG RESERVATIONS ABOUT WHETHER ANY OF THE GROUND RULES WERE NECESSARY”
In the judgment today in Morrow v Shrewsbury Rugby Union Football Club Ltd [2020] EWHC 379 (QB) Mrs Justice Farbey considered a case that involved a vulnerable claimant. The judgment contains some scepticism as to whether the ground rules set…
ATTEMPTING TO GIVE EVIDENCE IN SUBMISSIONS AND SUBMISSIONS IN EVIDENCE: SHOULD THE TWAIN EVER MEET?
The recent post on the Post Office case and the defendant’s attempts to introduce new evidence at the submissions stage has caused me to revisit a post from several years ago. This was, in turn, caused by a recollection of…
THINGS TO THINK ABOUT IN THE NEW YEAR: DOES DRESSING FOR COURT MATTER?
One of the primary tasks of an advocate (indeed the primary task) is to persuade judges. That is why so much time is spend on this blog looking at guidance given by judges. The beginning of the year is a good…
DRAFTING SKELETON ARGUMENTS: ROUNDING UP THE POSTS
Here we look at some guidance, and some previous posts on this blog, about drafting skeleton arguments. “Sir James Hunt has told us of the (unattributed) judicial reaction on receiving a 35 page document which was to the effect…
APPEAL ALLOWED WHEN THE TRIAL JUDGE OVERSTEPPED THE LINE
In C (A Child) (Judicial Conduct) [2019] EWFC B53 HHJ Rogers allowed an appeal in a family case. The unusual aspect of the appeal was that the main issue was the conduct of the trial judge and the appeal on…
“WHAT’S THE DIFFERENCE BETWEEN A SKELETON ARGUMENT AND A WITNESS STATEMENT?” NOW THERE’S A QUESTION…
That very question “the difference between a skeleton argument and a witness statement” appeared in a search that led someone to this blog today. It may be worrying that someone has to ask. The important distinction is often ignored. Day…
RIGHTS OF AUDIENCE: A COMMENT FROM AN ELDERLY COSTS NERD
Yesterday I wrote on rights of audience. This led to a great deal of comment on Twitter and a response from an elderly costs nerd (who wishes to remain anonymous) has commented on this case: “Your post today about the…
ADVOCATES, ROAD MAPS AND DEPARTING FROM THE STRUCTURE OF WRITTEN SUBMISSIONS
There is an interesting passage in the judgment of Turner J in Court Enforcement Services Ltd v Burlington Credit Ltd [2019] EWHC 1920 (QB) relating to written submissions and advocacy. “… there appears to me to be a growing trend…
RIGHTS OF AUDIENCE: WHAT IS MEANT BY CHAMBERS? CLAIMANT’S REPRESENTATIVE SENT HOME…
I am grateful to barrister Christopher Buckingham for sending me a copy of the judgment in National Westminster Bank -v- Smith. (27th February 2019). A copy of which is attached here E6BA4N32 – National Westminster Bank PLC v Smith (27.02.19)…
THE ROLE OF THE SOLICITOR IN PERSONAL INJURY LITIGATION: IDEAS TAKEN FROM THE SECRET BARRISTER
There was a tweet yesterday from someone (a non-lawyer) asserting that personal injury lawyers did not need to know the law. His purpose, I suspect, was to lead on to an argument that the work could be done by someone…
PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”
Most cases are lost not on issues of law but on issues of evidence. In Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the applicants’ evidence. The judgment contains…
CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET
There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding…
THE PURPOSE OF PUPILLAGE – JUDICIALLY DEFINED
In Ekperigin v Bar Standards Board [2019] EWHC 1292 (Admin) Holman J considered the purpose of pupillage. “It is the stage in which, by a form of “osmosis”, a barrister at the outset of his*career learns and absorbs what it…
DECISION OVERTURNED BECAUSE OF UNFAIR JUDICIAL TREATMENT: “TAKING UP THE CUDGELS OF CROSS-EXAMINATION”
There are few cases that are overturned on the grounds of unfair judicial treatment. However this was one of grounds the appeal was allowed today in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 “On numerous occasions, the Judge…
CIVIL PROCEDURE BACK TO BASICS 43: CROSS EXAMINING EXPERTS: USEFUL GUIDES AND LINKS
Cross-examining experts is possibly one of the most daunting aspects of advocacy. If an advocate gets into a “debate” with an expert then the advocate normally loses. If the advocate is too brutal the cross-examination can backfire, too supine and…
WHAT’S IN THE BAG? ADVICE ON WHAT TO TAKE TO COURT: HANDKERCHIEFS, PENS AND … TUNNOCKS
As part of the series where contributions are invited from Twitter I asked what advice on what advocates should take to court with them. What essentials should be in the bag? Not all the contributions should be taken too seriously,…
“BE KIND TO PEOPLE”: THE (ALMOST) COMPLETE GUIDE FOR ASPIRANT AND NEW LAWYERS FROM TWITTER
Yesterday I set out some of the Advice given on Twitter to those making a start in the legal profession. Here I have most of the posts. The discussion is still going on. There has been a particularly long chain…
ADVOCACY THE JUDGE’S VIEW SERIES 3: PART 10: THE LAST POST: A CHANCE TO LOOK BACK ON THE THREE SERIES (SO FAR)
We have looked at guidance from judges from many parts of the world. Looking at what judges say about the way that cases are brought before them is a good way for advocates (and litigation lawyers in general) to know…
BOOK REVIEW: IN YOUR DEFENCE: A BARGAIN AT ANY PRICE
I have said before that it is the criminal (and family) lawyers that have the best tales. However there are always things we can learn. If you have a Kindle (or access to the Kindle app) “In Your Defence” by Sarah…
ADVOCACY THE JUDGE’S VIEW SERIES 3: PART 8: BREVITY
In this post I am encouraging you to read the speech of Lady Justice Rafferty to the Criminal Law Review Conference earlier this month. Much of the speech concerns issues in criminal law. However one passage is, in essence, about…
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION
A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association. I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…
LINKS TO GUIDANCE ON DRAFTING WITNESS STATEMENT: INTERACTIVE BLOGGING
Yesterday I was speaking on the APIL Fatal Accidents course. One of the points I was making was the importance of reading the rules and and guidance in relation to the drafting of witness statements. The delegates asked for links…
DOES WHAT YOU WEAR MATTER? GUIDANCE FOR ADVOCATES AND LITIGANTS
Does how you dress affect how you are perceived? A recent tweet (from the USA) contained a complaint from a lawyer that a judge had upbraided them in court for not wearing a tie. The lawyer asserted that there were…
LIVE COURT OF APPEAL STREAMING – GIVES YOU A GRANDSTAND SEAT
The Court of Appeal pilot scheme for live streaming will start on Thursday, details are available on the Court and Tribunals Judiciary website. THE FIRST MATCH… The first case to be heard with live streaming concerns West Ham United football…
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 5: BODYBUILDING IN BIRMINGHAM: MASSAGING THE NUMBERS
This week the teams were involved in selling goods and services at a bodybuilding expo in Birmingham. Our two lawyers are on the same team and this week it was the winning team. Lawyers and bodybuilding, it seems, are a…
USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…
The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge. The main difficulty was that the…
YOU’RE FIRED: A LITIGATION LAWYER ON THE APPRENTICE 3: A COMIC AFFAIR
Sometimes (I suspect more often than we are willing to concede) it is not the best side that wins, it is the least worst side that doesn’t lose. That is the lesson to take away from this week’s apprentice. Our…
WHY DO CRIMINAL LAWYERS HAVE ALL THE BEST STORIES? A REVIEW OF “UNDER THE WIG”
The bookshops appear to be awash with books by lawyers, fiction and non-fiction. Virtually all of these are by criminal lawyers. We civil lawyers clearly have far less interesting stories to tell. When I was sent “Under the Wig” by…
DEALING WITH THE ARCH ENEMY: EVERY LITIGATOR’S BUGBEAR
Some of the ideas for this blog come from the legal community on Twitter. This evening there was a discussion about the virtues of instructions that arrive in numerous emails versus the problematic (and usually broken) arch lever file. Last…
FIFTH BIRTHDAY REVIEW 5: THE JUDGE’S GUIDE TO ADVOCACY SERIES: TWO AND A HALF DONE
There are two completed series on judge’s guide to advocacy – and we are part way through the third. There is still plenty of material available and I wouldn’t be surprised if there is a fourth series. Advice has been…
5th BIRTHDAY REVIEW 2: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL: 10 POSTS THAT STARTED ON A TRAIN STATION
I am continuing looking back at series on this blog over the past five years. A series of posts in early 2017 was probably the most “collaborative” work on this blog. Dozens of people participated in giving advice to law…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
ADVOCACY – THE JUDGE’S VIEW SERIES 3 PART 5: LAW AND THE WHIRLIGIG OF TIME: LEARNING TO LOSE A CASE WELL
It is difficult to review a book like Stephen Sedley’s Law and the Whirligig of Time. A wide ranging series of essays that covers everything from the “role of the judge ” to Bob Dylan and Under Milk Wood. It…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 4: A VIEW FROM THE CLERK’S BENCH: MANNERS MAKETH THE ADVOCATE
In this post I am recommending you read “The Art of Advocacy: Twenty Tips for your First Court Appearance” a post on the “Survive Law” blog. Unlike the other posts in these series this is written by Jennifer who was a…
BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. …
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…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 2: MAXIMISING YOUR IMPACT AS AN ADVOCATE: REPUTATION IS ALL
In the second of this series we are going to Australia. More accurately to Queensland to look at the advice given by Fleur Kingham, President of the Land Court of Queensland. The lecture was given in the QLS Modern Advocate…
“UNSATISFACTORY IN TERMS OF PROCEDURAL HISTORY, PREPARATION, PROCESS AND OUTCOME”: WHAT HAPPENS WHEN YOU TAKE LEGAL REPRESENTATION AWAY
John Vater QC, writing on Twitter, has – rightly- categorised the District Judge Read as a “hero”. When giving judgment in JY v RY [2018] EWFC B16 the judge made a number of telling observations about the profound implications of lack…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 1: THERE IS A SPECIAL RING IN HELL FOR A CERTAIN TYPE OF ADVOCATE (& YOU KNOW WHO YOU ARE)
I had no plans for a further series on judge’s advice advocacy. However my hand was forced. I had to share the talk given by Lord Justice Irwin given to the Professional Negligence Bar Association on the 17th April. It…
VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS
The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses. There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here…
ADVOCACY: THE JUDGE’S VIEW SERIES 2 PART 10: EDITED HIGHLIGHTS: AROUND THE WORLD IN 147 DAYS
I never planned to write a second series on advice from judges on advocacy. It started with an article from Master Cook and developed from there.This led us to garner advice from judges around the world. Here are the edited…
ADVOCACY A JUDGE’S VIEW SERIES 2 PART 9: A SURVIVAL GUIDE TO ADVOCACY: “ATTITUDE IS EVERYTHING IN ADVOCACY
Here we look at guidance given in 1998 to lawyers in Canada. Mr Justice Ian Binnie, a judge of the Supreme Court in Canada, was giving the first John Sopinka Advocacy Lecture. As ever the aim is to encourage you…
NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS
It has been a week for the courts commenting on advocates. Earlier we had complaints of advocates interrupting each other. Today we have complaints of “grandstanding”. Reminding advocates that their task is to deal with the legal issues at hand…
ADVOCACY THE JUDGE’S VIEW: SERIES 2 PART 8: EFFECTIVE WRITTEN SUBMISSIONS: “FIRST IMPRESSIONS COUNT” & THE “CHUNKIFICATION” OF ARGUMENTS
This series certainly takes us around the globe. Here I am looking at a paper written by Justice Susan Glazebrook, a judge of the Supreme Court of New Zealand. Her paper on “Effective written submissions” written in 2014. As always…
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…
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