Advocacy

Yesterday, I delivered my keynote speech to law students at Brunel University, prior to running my Advocacy course this term. Here are some of the more salient points, I felt I should share, in terms of presentation, attitude, and delivery.

Adversarial advocacy is a polite contest between two sparring advocates seeking to persuade a Judge to prefer their argument, to that of their opponent.

You win by presenting a perceptively persuasive, and irresistible argument within the rules by not misleading the court, not losing your temper, and keeping a cool head, despite a Judge's questioning, berating, or anything else going on in a court at the time.

Understand and hone your skills of perspicacity: an ability to understand things quickly and make accurate judgments, especially in relation to the attitude and perceptions of the usher, the clerk, your opponent, your client, and the Judge. All of these people are linked. If you are excitable and arrogant outside of the doors of the court, it is gossip for the usher who tells the clerk, who tells the Judge, so be polite and respectful of everyone in the process. There is no need to ever be rude to court staff. Conversely, shmoozing has its place at appropriate times, but being a sycophant only seeks to annoy.

Watch the Judge's pen. Attune the speed of your delivery so that notes can be taken, and good points are not missed. A Judge asleep is a bad thing...A Judge who stops writing is a bad thing. A Judge who looks at the ceiling is not a good thing. A Judge who stares intensely at you is not a good thing.

Get into a rhythm when advocating. Try to deliver your points in threes. Stories naturally have a beginning, a middle, and an end. What is easy on the ear, is an argument that is put simply and unequivocally, and brings with it a sense of logic. Delivery having regard to the tone, and pitch of your voice, with adequate pauses, makes for receptive listening.

Be aware of your poise. Don't be a diva. Be humble, yet firm. Confident, but not arrogant. Be respectful, cool, calm, and collected. No over-dramatics. Don't become too emotional. Don't be intense. Rather, be measured in the presentation of your delivery. No hands in pockets; no fidgeting, no playing with your phones, no twirling of pens. All sound and movement can be seen from a higher vantage point where Judges usually sit, and it detracts from what you seek to say and is an unwanted and unnecessary disruption. The apparent ultimate standing angle in which one is likely to be most persuasive is 84.5 degrees. Good luck with that.

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

 


 When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.


The McKenzie Friend’s enemy?

If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?

Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.

The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER  1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.

Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.

Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.

 

The difference with Ian Hanger was that as an officer of the court, he had a duty to the court not to mislead, and not to misrepresent the facts. He was regulated by his professional body, albeit not the Courts of England and Wales, but rather, the Australian courts.

A number of cases have recently arisen where McKenzie friends have over-stepped what is expected of them. Indeed, there is a notional understanding of the role of a McKenzie friend, but nothing in stone. Assisting a litigant-in-person can be done in many ways, and the role is not clearly defined.

This blogpost does not seek to question whether a McKenzie friend still has a place in court. The writer believes overwhelmingly that McKenzie friends are a huge help not only to the courts but to the litigant-in-person employing them, and the process generally….PROVIDED THAT THEY ARE LICENSED AND REGULATED AND KNOW WHAT THEY ARE DOING, AND THAT THEIR ASSISTANCE PRESUMES THEY ARE CONVERSANT IN LEGAL PROCEDURE AND PRESENTATION.

Indeed, where legal aid is dwindling, and legal representation cannot be afforded, (and in some occasions, not trusted), and conditional fees are not working or not permitted, someone to assist in court is a big comfort.

There are of course a number of groups who provide assistance as to court preparation such as Help4Lips, Citizens’ Advice Bureau, LawWorks, and the Bar Pro Bono Unit.

There are other groups who will help emotionally and with practical advice, but not legal advice, such as the Personal Support Unit.

Going back to the main question, what duty does a McKenzie friend have to you, the litigant-in-person?

Does the McKenzie friend derive a benefit for money or money’s worth? Is there a written or implied agreement in place which establishes a contract? If yes, the relationship may be contractual. If so, bad or misleading advice could be negligent advice.

What if there is no contract but you rely upon the McKenzie friend as a skilled person with expert advice in the field of legal procedure? There may be a relationship established in Tort which gives rise to negligent advice.

Ok. So you may have a remedy for negligence in cotract or tort, and the McKenzie friend gives you the wrong advice which leads to a claim arising against the McKenzie friend: Not so much a friend anymore…

Is there a distinction between a McKenzie friend who charges a fee, and a McKenzie friend who charges no fee?

There is a growing surge of professional McKenzie friends who charge a fee.

Well, herein lies the problem. McKenzie friends are not regulated. Their duty to the court is not regulated by any professional body. They have no codes of conduct to adhere to. They do not carry any indemnity insurance to cover them for any negligent acts/omissions, or advice. Yet, they can appear to assist litigants-in-person, and at the discretion of the court they can speak on their behalf.

What do you get with a professional McKenzie friend, that you do not get with a solicitor?

It may be cheaper by way of an hourly or fixed rate, but what if things go wrong? A solicitor is regulated by the Solicitors’ Regulation Authority. A solicitor abides by codes of conduct, and has duties to the court as officers of the courts not to mislead or misrepresent a case. Duties of confidentiality to their client.  A solicitor must have indemnity insurance. Costs and estimates must be regularly given and revised. Complaints procedures are ingrained into their terms and conditions. They are liable to you both in contract and in tort. Other regulatory breaches result in discipline, fines, and ultimately being struck off the roll of Solicitors.

A recent publication suggests that litigants in person should be given special treatment to a lawyer in court. That makes perfect sense. The profession of a litigant in person is not usually that of a lawyer. They do not know the rules and regulations and yet they are expected to know how to present an argument, and how to present paperwork.

The writer’s view is that a McKenzie friend, and especially a professional one, should be licensed. They should be regulated. There should be a code of conduct. There should be a separate qualification to obtain, which limits their assistance to procedure and presentation, rather than to provide legal advice. There ought to be a complaints procedure, and a disciplinary body. Only those fit to practice, honest, and of good character should be permitted to hold such a license.

I very much hope that such regulations and better judicial guidance will be forthcoming following the various consultations most notably the Legal Services Consumer Panel Report, Fee-charging McKenzie Friends (April 2014).

Regulation, education, and licenses are needed to ensure a good standard of McKenzie friend. Sociopaths, psychopaths, manipulators and con-artists, seeking to manipulate volatile and vulnerable litigants-in-person in stressful situations, some of which I have had the displeasure to come across when in Court, hiding behind the mask of a McKenzie Friend, need not apply. This should not extend to provision of legal advice. That is a regulated activity and if you wish to give legal advice, and advocate in court, then become a solicitor, a barrister, or a legal executive.

The McKenzie Friend’s enemy is not the court. It is not the litigant-in-person. It should not be a regulatory body, or lawyers on the opposing side. Indeed, the McKenzie friend should have no enemies.  Provided they adopt the appropriate balance to assist both the courts and the litigant-in-person, McKenzie friends should be considered assets and not liabilities. (licensed and regulated ones conforming to a code of conduct and carrying indemnity insurance).

 

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


 When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.


Duties of a lawyer when acting as an advocate, fraud, and defamation.

A lawyer is broadly speaking in English law, a generic term for a solicitor, a barrister, a legal executive, and a solicitor-advocate, regulated by a governing body with codes of conduct, a certificate to practice in the profession, and carrying sufficient indemnity insurance.

A solicitor and a solicitor-advocate’s conduct is governed by the Code of Conduct of the Solicitors’ Regulation Authority.

A barrister’s conduct is governed by the Code of Conduct of the General Council of the Bar.

Any lawyer who is regulated by the Law Society or the General Council of the Bar, and has a practising certificate and indemnity insurance, can be an advocate.

Barristers and Solicitor-Advocates (if properly accredited by their professional body or permission of the court), have higher rights of audience in the High Courts of Justice in civil courts, and the Crown Courts in criminal courts, to speak.

Litigants-in-person have full higher rights of audience with no qualifications or experience necessarily…

McKenzie friends are people who assist litigants-in-person with their case. Their role and ability to speak and to advocate is beyond the remit of this post.

All lawyers have an overriding duty as officers of the senior courts of England and Wales, to the court.

Section 51(6) and (7) of the Courts and Legal Services Act 1990, put Solicitor-Advocates and Barristers on par in respect of higher rights of audience in the Higher Criminal and Higher Civil Courts of England and Wales.

Sometimes, the duty to a client and the duty to the courts are conflicted.

The obvious example, by way of ethics, is where in criminal courts a defendant pleads not-guilty, but then admits to the lawyer that he/she committed the criminal offence alleged. In those circumstances, the advocate MUST decline to act. That is a clear example of conflicting duties.

What happens when a client asks you to represent them in a case which might be hopeless?

If it is fraud-related, then a practising barrister must not ‘…devise facts which will assist in advancing his lay client’s case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing…any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. [Code of Conduct, para 606]

Lawyers therefore engaged in advocacy, are faced with a conundrum. How do they possibly weigh up what the client wants, as opposed to what the court expects of an advocate representing someone?

Lord Steyn made the following comments in the case of Medcalf v Weatherill and Anor [2002] UKHL 27:

‘This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Lord Bingham in the 2002 case said:

‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would, however, agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’

…and now some information as to allegations of fraud ‘alleged fraud’, ‘suspected fraud’, ‘purported fraud’. The courts will deem any allegation containing the word fraud as defamatory if there is no truth in such allegations. Therefore, having reason to believe, or reasonable grounds, is no longer a defence to such allegations pursuant to the Defamation Act 2013. Unless the allegations are based upon truth, such allegations are likely to be defamatory, and you will find yourself facing damages and costs.

If it isn’t true, do not say it. Do not suggest it, unless it is true, rather than you believe it to be true.

September ‘16

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


 When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.


What happens when a claimant is in financial difficulties?

This is not an unusual question. This issue arises a lot.

An individual brings a claim in the courts of England and Wales, (known as a claimant, and previously a plaintiff). For a variety of reasons, they cannot continue because they have run out of funds, or have found themselves in financial dire straits.

If you think that this is going to happen, or the claimant has financial issues, a tool in litigation is to apply for security for costs, depending upon the particular circumstances of the financial concerns, pursuant to Part 25.12 of the Civil Procedure Rules 1998 (‘CPR’).

Security for costs are monies that are paid into court to cover part or all of the defendant’s legal costs, in case the claimant is unable if he/she/it loses a case.

What if a claimant is financially impecunious? The courts having regard to all the circumstances may still award a sum for security for costs, but it may be a reduced figure. The reasoning would be that an application for security for costs ought not to be used to scupper a claim from being brought. Access to justice should be for all.

The conditions that have to be satisfied are set out to make an application for security for costs are set out at CPR 25.13. One or more of these conditions needs to be satisfied:

  • If the claimant is resident outside of the jurisdiction of England and Wales, but not resident broadly speaking in a country where a reciprocal agreement is not in force with that resident country to enforce judgments.
  • If the claimant is a company and there is a reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
  • If the claimant has changed his address since the claim was commenced with a view to evading the consequences of litigation.
  • If the claimant failed to give an address in the claim form, or gave an incorrect address in that form.
  • If the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.

A decision to make an order for security for costs is discretionary, having regard to all the circumstances.

If an individual is adjudged bankrupt (i.e. when a bankruptcy order is made), he/she no longer has any status to continue an action in court, because that right vests in their trustee-in-bankruptcy. See Section 306 Insolvency Act 1986.

The main case in point is that of Heath v Tang (1993) 3 All ER 694. If before a person is made bankrupt, he becomes bankrupt, the case is stayed until and unless the trustee in bankruptcy assigns the case to the bankrupt or agrees to be substituted.

What is the claimant is a company and the company goes into liquidation? A company is a separate legal entity to an individual and is governed by different rules to an individual.

If a company is placed into liquidation, then section 130(2) Insolvency Act 1986 applies. No action or proceedings can be proceeded with or commenced against the company or LLP or its property, except by leave of the court and subject to such terms and the court may impose.

What if a company is placed into administration? In such circumstances a moratorium is created and Schedule B1, paragraph 43 of the Insolvency Act 1986 applies.

Proceedings cannot progress without agreement by the administrator and leave of the court to do so. Proceedings are stayed and no one can bring a claim against the company, and the company, in turn, cannot bring a claim.

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


david rosen.png

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.


When You Think You Are Right and Everyone Else Is Wrong?

This blogpost will no doubt upset those who always think they are right, or know better. Worse still, those who have a certain outlook on life and an understanding of justice and truth, may find that their perception of things according to them, is not the same perception of matters considered according to a court of law.

It is aimed not only at litigants’ in person, but for those engaged and embroiled in litigation in the Courts of England and Wales.

According to Nobel prize winner Daniel Kahneman in his outstanding book, ‘Thinking, Fast and Slow’, which I highly commend you to read:

Social scientists in the 1970s broadly accepted two ideas about human nature. First, people are generally rational, and their thinking is normally sound. Second, emotions such as fear, affection, and hatred explain most of the occasions on which people depart from rationality.
— Kahneman D, 2011, p8

Amos Twersky posed the question:

Are people good intuitive statisticians?
— Kahneman D, 2011, p5

What does it matter to you , because you are right and your sense of justice is right. Right?

‘An individual has been described by a neighbour (sic) as follows: ‘Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail’.

Is Steve more likely to be a librarian or a farmer?’.

We all have stereotypes and biases. Libraries are supposedly quiet well-ordered places. The books need to be referenced in a certain way which requires a good idea for methodical detail. One would think therefore, that the description of Steve resembles that of a librarian. This is a predictable bias which does not take into account the number of farmers to librarians in a given area.

Now put into place statistical considerations. Steve lives in the USA. There are more than 20 male farmers for each male librarian in the United States. There are therefore many more farmers than there are librarians, and Steve is likely on a balance of probabilities applying statistical analysis to be a meek and tidy farmer, than he is to be a librarian.

Applying the views of cognitive and social psychologists, intuitive thought is dominant in the way that we all think.

We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight.
— Kahneman D,2011, p13

Now a question for you. Off the top of your head, what is 17 x 24?

Ok, you don’t know the precise figure. You know that the figure is not going to be a five or six digit answer. 10x 10 = 100. Easy! 17 x 24 = ???, but it will not be ?????, or ??, or ? ?????.

You know that by writing down and multiplying the two figures, mathematical steps were involved. Steps which you learnt when at school. This was an example of slow thinking.

It was not just your mind at work:

The computation was not only an event in your mind; your body was also involved. Your muscles tensed up, your blood pressure rose, and your heart rate increased. Someone looking closely at your eyes while you tackled this problem would have seen your pupils dilate. Your pupils contracted back to normal size as soon as you ended your work – when you found the answer, or when you gave up.
— Kahneman D, 2011, p20

Keith Stanovich and Richard West, psychologists, proposed two systems in the mind namely system 1 and system 2.

System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.

System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of system 2 are often associated with the subjective experience of agency, choice, and concentration.

We perceive ourselves to be system 2. ‘the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do’. (Kahneman D, 2011, p21)

System 1 is however, the dominant player in our thought process. That is, ‘the effortlessly originating impressions and feelings that are the main sources of the explicit beliefs and deliberate choices of system 2’. (Kahneman D, 2011, p21).

Automatic activities attributed to system 1 include:

‘Detect that one object is more distant than another; orient to the source of a sudden sound; complete the phrase ‘bread and…’; make a ‘disgust face’ when shown a horrible picture; detect hostility in a voice; answer 2+2=?; read words on large billboards; drive a car on an empty road find a strong move in chess; understand simple sentences; recognise that a meek and tidy soul with a passion for detail resembles an occupational sterotype’.

According to Kahneman, we are built to perceive the world around us, recognise objects, avoid losses, and fear what might be harmful to us.

Now apply system 1 to a situation in which you are in a state of the unknown. You do not know the outcome. There is considerable financial risk, and risk to reputation. The loss could be your reputation, your pride, your view of how people see you, money, your family, your home. The list is endless. You wind yourself up either to fight or to flee. Do you attack? Do you run away? Do you ignore what is going on around you in the hope that things said and demanded of you might simply go away and fall into oblivion.

Without implementation of system 2, you make choices and decisions under pressure which you may not have done, had you thought a bit more deeply and objectively about the dispute you are involved in.

2+2 = 4.

Under pressure, avoiding losses? You have a piece of evidence we will call 2. You have another piece of evidence which you perceive to be, say 2.3, and you come to the answer as 4.3 because that is your perception of things, and that is the weight you have placed on evidence to give you a figure.

You may say that the answer 4.3 is close enough to 4, and the Judge after all, is human, and will side with you because you are the disadvantaged party without funds, without resources. Justice will prevail. Even though the answer is 4, 4.3 will be good enough for you to win. Really?

…and this is the conundrum I face with people who think they are right, and that everyone else is wrong. It sort of adds up, but when checked against other factors with deeper more objective thinking, you realise that 2+2=4, and 2+2.3=4.3 and that what you needed to demonstrate your case is 2+2, but that is not what you have. 4, is not 4.3 is it?

In case I have lost anyone Kahneman gives the example of a bat and a ball together costing $1.10. If the bat costs $1 more than the ball, how much does the ball cost? The immediate answer is $0.10. That is representative of system 1. Do the maths. Go through the logic of the answer. If the total cost is $1.10, and there has to be one whole $ more, the ball must cost…$0.05.

There will be people who read this and say I have the figures wrong. There will be others who will never understand why it is. Re-check the figures.

System 2 requires attention and focus, rather than an intuitive feeling, an automatic system 1 thinking process.

Examples of system 2 include monitoring the appropriateness of your behaviour in a social situation, comparing overall values of two washing machines, and checking the validity of a complex logical argument.

The first thing that pops into your head, as to how you feel about something, and what should be done, with a tempering of the heat of an argument, and a deeper clearer thinking of the situation, may give you a different result.

There is good reason to consult someone independent and objective to your case in the hope that they apply system 2. That is not always the case however.

Kahneman asserts that since system 1 operates automatically and cannot be turned off voluntarily, errors of intuitive thought are often difficult to prevent. 

Biases cannot always be avoided, because system 2 may have no clue to the error.
— Kahneman D, 2011, p28

We have all seen (I hope), the Invisible Gorilla, whereby a group of people stand in line passing a ball from oneto the other, and you are asked to count the number of times the ball passes, whilst someone in a gorilla suit jumps in and out of the crowd and waves his/her arms. Surprisingly, many if not most people miss sight of the gorilla. The gorilla becomes invisible.

Sometimes a litigant in person becomes obsessed with a certain ruling, or a certain observation of something, and completely misses the proverbial elephant in the room, or in the example cited above, the gorilla.

A good litigant will engage system 2. They will know not to rely or engage upon their initial thoughts generated by system 1, but instead to ‘sleep on it’, and to slowly and logically think things through.

I very much hope that I have given some food for thought. When you make decisions under pressure, or under extreme emotion, with a prospect of significant potential loss, mistakes can be made and it is good not to follow your heart and act intuitively, but to employ other modes of thinking to see the argument from different angles and in different ways, to re-check what you originally thought.

By doing so, your perception of right, might just be wrong….

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.


 When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.