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FREE BOOK CHAPTER: The Basics of Advocacy (from 'Arguments and Tactics for Personal Injury and Clinical Negligence Claims' by Dorian Williams)

24/11/17. This is the complete Chapter One from our new book, ‘Arguments and Tactics for Personal Injury and Clinical Negligence Claims’ by Dorian Williams – The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on efforts to avoid the trial process but if not, you must be prepared for that eventuality...

 CHAPTER ONE
THE BASICS OF ADVOCACY

1.1 Case Theory

1.1.1 The objective is to win the case fairly and at proportionate cost; that means ideally resolving before trial as the litigation risk of an adverse outcome is always present, although it can be limited. Much of this book will concentrate on efforts to avoid the trial process but if not, you must be prepared for that eventuality.

You should assume that the case may go to trial, so it must form part of a claimant’s case theory when carrying out a risk assessment. Is the claim viable and can it be proved at trial. If injury is not foreseeable, for example, should you be taking the case on? Does the defendant owe a duty of care. Do you have the correct defendant or has the NHS Trust contracted its radiology function to a private provider. Is the actual defendant a medical practitioner sub-contracted by the private agency. If you cannot prove negligence, or breach of statutory duty or that a defective product caused injury, then why are you taking the case on. You don’t want to find that Counsel (if so briefed) refuses to accept the brief because the risk of a loss is too great.

1.1.2 The danger is to suppose that with QUOCS (qualified one way cost shifting) applying, that there is no real costs risk to a claimant progressing a very weak claim to force a settlement. That could create a dangerous situation of lateral drift. Going through the motions, hoping that your Part 36 offer will be accepted or you receive a Part 36 offer ready to snap the other’s hand off. But it won’t happen because the opponent will have conducted their case assessment and will know of your weaknesses. By this stage you may be receiving offers to discontinue but your own work in progress will be substantial and you may be less inclined to throw in the towel.

The better way is to start off with confidence in your case and that means owning it or knowing how to prove the claim. If you think it can’t be done, speak with a colleague or counsel for their opinion.

Therefore, knowing the legal issues at the outset is as important as getting the facts right. Of course in a clinical negligence claim, you cannot know at the outset whether the case has merit until you have a breach of duty report.

1.1.3 Analysing the merits of a case requires an assessment of evidence as the court will makes it assessment based on relevant and admissible evidence. It does not follow that your evidence will be preferred on the balance of probability to that of your opponent’s evidence. Clearly anticipating your opponent’s evidence at the outset of a case will be difficult. But it forms part of a risk assessment in determining whether it is viable to continue with the claim.


1.2 Preparation and presentation

1.2.1 The first interview- take an initial statement. Dictate in front of client. Let client tell his story in his own words. Set out facts in chronological order. Compartmentalise the statement with subheadings, e.g. introduction, employment duties, accident, aftermath, injuries, impact, HSE investigation etc.

Draw up a list of issues – those likely to be agreed, those in dispute. What legal principles apply. Think about submissions or what you would like to include in a skeleton argument and how to prove the case.

Research the law. Comply with case management directions. Know trial procedure. Know the facts of the case.

1.2.2 Addressing the court

District Judges- Sir/Ma’m

Circuit Judges- Your Honour

High Court judges- My Lord/Lady

- Your Lordship/Ladyship

Addressing your opponent:

My friend (legal executive, solicitor)

My learned friend (counsel)

Or simply by name

1.2.3 Style of presentation

As advocate for your client, your job is to persuade the court to see things from your client’s point of view and to make it as easy as possible for the judge to find in your favour. You are assisting the court to help them understand your case and to help the judge overcome any objections or weaknesses in your client’s case. Indeed your first duty is to assist the court and not to mislead it, irrespective of any instructions given by your client.

You should aim to create a good first impression by being assured, organized and clear. Knowing your case by thorough preparation provides good reason to be confident, particularly if you have researched case law that will support your opponent’s case and know how to distinguish them.

To ensure that the message is not lost, personal presentation should take account of the following:

1.Be COURTEOUS to the judge, your opponent and all officers of the court. Even if others are impolite to you, retain dignity and composure. If the judge interrupts, let him speak. If there are constant interruptions, be apologetic and advise the court that you wish to assist further by making your point another way. Try to anticipate and answer the judge’s questions. Never lose your temper or be impolite.

2.Maintain CONTROL of the court and witnesses

3.Do NOT READ out your opening address or submissions. If nervous or have lost your line of thought, take a brief time to review the headings of your skeleton to refresh the issues, before addressing the court further.

4.Be CONFIDENT or act as if you are. Breathe deeply and speak slowly in a low or measured tone. Smart dress and good posture helps build confidence. Humility and confidence are key, rather than arrogance.

5.Use SIMPLE language and SHORT sentences. Avoid pomposity or verbosity as it is rare for an advocate to carry this off with charm.

6.Use PAUSES and SILENCE as part of your address as it can create EMPHASIS to the point you are making. It also allows the judge sufficient time to note up your submissions.

7.Avoid REPETITION and do not waste time. Be guided by the judge. If he tells you to move on, move on.

8.Remain OBJECTIVE and avoid expressing personal opinions. I ‘suggest’, ‘contend’, ‘submit’ rather than I believe, assert or it is the case that. The court is not interested in your opinion on the facts or whether you consider the law is good or bad.

9.EVIDENCE must be truthful, reliable and cogent.

10.Be TRUSTWORTHY; that means putting forward correct propositions in law and making appropriate concessions where there are any weaknesses in your case.

Key points

  • Perform a risk assessment at the outset – especially pertinent for claimants; can this case be won profitably. Is their evidence to support the case.

  • Get the medical records and carefully review to check consistent with client’s account.

  • Assemble evidence. Consider other forums of enquiry – HSE investigations, police reports, root cause analysis investigation reports and inquests.

  • Prepare an early skeleton argument identifying the issues, the facts and the law. Amend as the case progresses.

  • Know the civil procedure rules and the court process and etiquette.

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Image cc Ian Britton