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The basic principle for civil proceedings within the jurisdiction is that the loser will pay the winners legal costs (as well of course as having to pay their own!). Therefore a costs order can only be decided once a judgment has been given as to who the “winner” is. There are also methods of assessing those legal costs incurred and whether or not they were incurred reasonably or proportionately. Towards the beginning of the course, we look at how the clients to fund the proceedings.
7. 8 Appeal
If your client is the unsuccessful party to the action they you may want to consider appealing. The deadlines for this are tight and the rules complex. Clients often find it difficult to understand that there is no “right” to appeal in most circumstances. The courts tend to think that if you have already had the benefit of the courts resources once, then that is sufficient. There is though the need to ensure that justice is done and seen to be done and you will come to appreciate the circumstances in which the lower or the appeal court will give permission to appeal, the tests which need to be satisfied and the procedures to be followed.
7.9 Enforcement
Of course if your client is successful at trial and gets a judgment in its favour, it does not necessarily follow that the defendant will comply with the terms of the judgment and pay any sums owed. We will therefore need to look at the various options and procedures to enforce the judgment of the “judgment creditor” against the “judgment debtor” so that the fruits of your client’s labours have not been for nothing!
That’s all to get you started! The Civil Litigation team look forward to teaching you in SGS 1. We hope you will find the civil litigation course an enjoyable part of your BPTC studies.
June 2016
The Bar Professional Training Course
Full Time 2016/2017
Faculty of Business and Law
INTRODUCTORY SESSION – GENERAL ADVOCACY
FULL TIME - WEEK 8
WEEK COMMENCING 12th SEPTEMBER 2016
INTRODUCTION TO ADVOCACY
SESSION PLAN
SUBJECT INTEGRATION
This small group session introduces you to some of the basic techniques of case preparation and advocacy which are necessary in civil and criminal proceedings. It is therefore important preparation for all subsequent advocacy sessions – both criminal and civil.
OBJECTIVES
At the end of this session you will have been required to:
1. familiarise yourself with the base room recording equipment,
2. identify factors which contribute to good and to bad advocacy,
3. analyse the material presented to you in a simple factual scenario,
4. prepare to outline a client’s case in a clear narrative form, structuring the speech logically, coherently, and effectively,
5. in so doing, act ethically (in particular, adhering to the client’s instructions),
6. speak clearly, audibly and at a sensible pace in presentation of your case,
7. adopt an appropriate stance for addressing a court, with good eye contact and an absence of distracting gestures,
8. display a proper degree of confidence in the case and in its presentation,
9. make a recorded presentation in the presence of fellow students,
10. give and receive feedback.
PREPARATION
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By reference to your position on the group list determine which scenario has been assigned to you (if you are first on the group list you must prepare scenario1, if second, scenario 2, etc). You will see that each scenario consists of a verbal account of an event or sequence of events as narrated by the speaker.
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Read the ‘Notes for Guidance’ below.
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Prepare to present, as if to a court, a narrative account of what happened according to the speaker’s version of events which is
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thorough
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clear and coherent
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logically structured and
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effective.
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Refer, only in so far as they relate to the objectives of this session, to the first four parts of the Advocacy Manual.
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For this and all advocacy sessions you must dress appropriately for court.
ACTIVITY IN THE SESSION
1. In an oral submission lasting no more than 5 minutes you will set out for the court the speaker’s version of events on the basis of his or her instructions as gleaned from the scenario. Though the nature of the proceedings may be obvious from those instructions you will not be critiqued on your apparent understanding of the applicable law or procedure. The purpose of this exercise is to get you on your feet in a court environment and relating a clear version of events.
2. You will receive feedback on your performance from your fellow-students and from your tutor. You will give feedback on the presentation of at least one fellow student.
3. You will take part in a plenary discussion aimed at identifying those factors which add to or detract from a good submission.
DOCUMENTATION
1. Bring these instructions with you together with any notes you have made in preparation, together with your DVD.
NOTES FOR GUIDANCE
This session forms a basic introduction to some important advocacy skills. These skills are required of civil advocates and criminal advocates alike.
Creating order from chaos (analysing the case)
In a barrister’s professional life he or she will frequently be presented with a large quantity of disordered information. From the papers in a brief the barrister will need to construct a clear narrative of the client’s case. From the first disordered and confused account given by a worried client in conference counsel will have to create a clear and coherent story. Sometimes this work has to be done with little time for preparation and under great pressure.
Telling a story
Having sorted out in his or her own mind a clear narrative of events from the client’s point of view, counsel is often required to relate that narrative orally to a court. In a criminal case counsel will open the case to the tribunal by telling the story from the prosecution’s point of view. In civil cases, if a judge has had no more than a limited opportunity to read the papers, counsel may have to give a narrative of events before dealing in detail with the remedy or relief being sought.
Requirements of the session: your submission
You will see from your scenario that you are reading an account of an event or series of events given by the speaker to someone (maybe a solicitor, a barrister, a police officer, a friend – it doesn’t matter). It is typical of many a first account given by someone who feels strongly about what has happened to them. It is not very well structured, it is jumbled up and (at first sight) unclear, it is expressed in a way which would not be appropriate in a court. It is your job to impose order on this account, to construct a coherent narrative of what the speaker says happened, and to present that narrative appropriately to a court.
Do not concern yourself with whether this is a civil court or a criminal court and what level of court you are addressing. You will address the tribunal as ‘Sir’ or ‘Madam’, as appropriate. You will stand when addressing the court.
You will then tell the court, from your client’s point of view, what has happened.
In doing so bear in mind the ‘objectives of the session’ set out above. The first six are taken from the ‘indicative content’ of the advocacy syllabus as found in the BPTC Handbook. They are reflected in the criteria for assessing submissions used on this course.
Your narrative must be clear as the tribunal needs to assimilate in one hearing what you say happened.
A logical and coherent structure is essential to clarity.
A story which is entirely truthful can sound unconvincing if it is told badly. If you are ‘setting out your stall’ at the start of the case it is essential that you do so persuasively.
Don’t make things up. You cannot supplement your instructions with facts of your own invention.
Pitch your voice to the size of the room. The court won’t follow you if it can’t hear you.
Don’t go too fast. If you speak at a measured pace (a) the court will be able to take in what you are saying and (b) you will give yourself time to think.
Don’t slouch on one hip, stand with your hands in your pockets, wander around, etc. Stand up straight and look at the person you are talking to.
You can refer to notes to remind you of your submission. But don’t read them out. It is a common fault of students embarking on this course to be “scripted” – i.e. either to read out, word for word, a submission written out in advance, or to recite a written submission that has been memorised word for word. The two most obvious disadvantages of doing this are that (a) you will not engage whoever you are addressing and they will stop listening and (b) when a judge interrupts your submission and asks a question you will be completely thrown because the interruption was not in your script. You will only be an effective advocate if you engage with the tribunal - look at them, talk to them, and (where appropriate) be ready to answer them.
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Avoid distracting gestures or mannerisms
This includes physical gestures (waving your hands about excessively, clicking your pen, winding your hair round your finger, etc) and verbal ‘ticks’ (‘ums’ and ‘ers’ being the most obvious)
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A proper degree of confidence in the case
Don’t be too shy or diffident in setting out your case. If you don’t sound confident in your case your tribunal is unlikely to be confident in it. On the other hand don’t hector the court.
Requirements of the session: feedback
You will receive feedback from your tutor and from nominated fellow students. You in turn will give feedback on the performance of others. Feedback is essential as it helps you to reflect upon your performance and to improve. It is therefore important that any feedback is appropriate to those objectives. You should therefore have in mind the following:
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Relate feedback to specific criteria
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