Beware of lawyer hiding paper in file

I can and do bore for England and Wales on the topic of well ordered briefs.

If your opponent has a lever arch file and notebook and nothing else, you can be pretty confident that that lawyer will be master of his brief.

There are two possibilities. Either the solicitors instructing the barrister have sent the papers beautifully prepared, thus maximising the prospects of the barrister being able to focus on the difficult parts of the case.

Or the solicitors (and barrister's predecessors) have NOT done their job properly and sent the papers in a mess. The barrister who spends time sorting and filing them, however full of irritation at having to do so, is a barrister who by the end will know their contents well.

It's not enough simply to have MOST of the papers in the file and some loose. That is simply the sign of someone who has not updated the file with the new material.

In court, the barrister with the papers in a lever arch file will be able to find any obscure document the Judge is looking for, while the less well organised opponent is frantically scrabbling among the papers to try to find it.

And the chances of dropping papers and looking foolish while you're engaged in shuttle diplomacy between client and opponent are much reduced...

Dull stuff perhaps: but of such things are victories made.

Knowing when to shut up

Knowing when to shut up

What, I wonder, are the expectations of clients about to meet "counsel" for the first time?

I suspect that the main, pretty obvious, expectation is that the barrister will be someone who will SPEAK on the client's behalf in court.

One of the first things I do, therefore, is to let my client know that it is not just knowing when to speak; it is knowing when not to speak. "A good barrister knows when to shut up" is a line that many of my clients have heard.

Promoting a client's case fearlessly means being prepared to say what may be embarrassing, provocative or even destructive. It means being prepared to persuade a Judge to do the opposite of what the Judge has indicated he is highly likely to do.

But the word "fearlessly", in my view, does not merely refer to fear of the judge or the other side. It also refers to fear of the client. And it is sometimes tempting to say something in court to please the client but which will not actually help them to pursue their objectives.

So I make it my business to warn the client in advance that I will speak if I think it is necessary to advance their case. But I will not automatically rebut any adverse comment made against them. Here I am fond of using the term "keeping powder dry".

Provided that I've explained this to the client before going in, the chances are that I won't have a client who leaves court wondering what on earth the point of having a barrister was!

Secret codes

Mr Foster has made his application attractively and persuasively."

"Mr Foster has said all that can possibly be said on behalf of his client".

"He has been most ably represented by Mr Foster who has been politely determined on his behalf."

These, and similar, remarks made during any judgment are a guaranteed heart-sinker for any barrister. You know that you've lost if the remarks refer to the quality of your representation. Presumably Judges think that the unsuccessful client is more likely to believe that they have received a fair hearing...and less likely to think "If only my barrister had said such-and-such, I might have won."

But what do clients think? Does it raise their expectations unfairly?

By contrast, the magical words "I needn't trouble you, Mr Foster" when it would otherwise be your turn to address the Judge signal that you've won - and that it was something of a pushover.

The Hampel Method

Advocacy is often badly taught. I speak from experience having been both the recipient of poor teaching and an observer of it. The model for bad teaching is for a student to perform an exercise (say a closing speech in a criminal trial) and the teacher then indulges in five minutes or so of waffle during which perfectly valid points are lost in a sea of randomness. It is a lazy way to teach; it leaves students learning little; and I have seen senior practitioners conducting themselves in this way.

I discovered there was a different way to teach and learn early on in my career when I went on a residential advocacy training weekend at Cumberland Lodge in Windsor Great Park. We were taught using the "Hampel method". It is very simple. The student performs an exercise and then ONE point only receives attention.

First, there is the HEADLINE - a pithy account of one thing the student was doing wrong.

Next, PLAYBACK - specific examples given of the weakness.

Next, the REASON why the weakness matters.

Next, the REMEDY: how to put it right.

The DEMONSTRATION by the trainer follows, putting the remedy into practice.

Finally, the REPLAY. The student repeats the exercise, hopefully having taken on board the teaching.

Much more to say on the method in a further post.

Salty speech

I feel this first entry should be explanatory, describing the scope of all future entries. But as I discovered when writing about salty food, the scope expanded and drifted away from its origins. The same may happen here.

But for the moment, my intention is that these entries will be about speaking, mainly public speaking. I am particularly interested in how it can be taught. I am a practising barrister and spend some of my time training students and newly qualified lawyers in the art of advocacy which does not simply mean speech-making but includes the art of questioning. I am interested, however, in the complete range of public speaking: business presentations; funeral orations; political speeches; and the rest. Above all, I believe that however difficult the occasion or however dull the topic may seem, it is always possible to make it both interesting and in keeping with the occasion.

Introduction over.