Overview - 2. Advocacy Flashcards
How long is the advocacy assessment and how is the time split?
1 hour
45 minute to prepare and 15 minutes to deliver the advocacy
What is the most basic description of the task in the assessment?
Apply relevant law to key facts in the instructions, to persuade the judge that you have satisfied the test for the court to make the order you are seeking
Do you stand or sit when delivering the advocacy?
Sit for disputes and stand for criminal
Who plays the judge?
The assessor plays the judge
What is the assessment objective for the advocacy assessment?
Demonstrate you are able to conduct a piece of advoacy to a judge
What are the assessment criteria for the advocacy assessment?
- Appropriate language and behaviour
- Clear and logical structure
- Engages with the court appropriately
- Argument is persuasive
- Include all relevant facts
- Legal content is correct and comprehensive, and professional conduct issues, if any, identified
Assessment Criteria - Appropriate language and behaviour
What two aspects make up appropriate language?
- Addressing the judge correctly
- Using language reflecting the fact you are in court, and not debating or at a political meeting
Assessment Criteria - Appropriate language and behaviour
How can you use intonation to be a good advocate?
By emphasing, with tone of voice, the parts of the submission which are important, such that anyone, even if they knew nothing about what you are saying, would understand what is important
Avoid monotone voice.
Assessment Criteria - Appropriate language and behaviour
If you cannot remember how to address a judge in a particular court, how should you begin your submission?
“May it please the court, I represent…”
Assessment Criteria - Appropriate language and behaviour
What type of phrasing should be avoided in submissions?
Avoid phrasing offering your personal view, e.g. “I think” or “in my opinion”
Assessment Criteria - Appropriate language and behaviour
Who should you never interrupt?
The judge
Assessment Criteria - Appropriate language and behaviour
If the judge asks a question and you plan to deal with this matter later in your submissions, what is the appropriate way to deal with this?
Thank the judge for the question, and say “if it pleases the court, I intend to address this further in my submission”
Assessment Criteria - Appropriate language and behaviour
If the judge asks a question and you have already dealt with this, what is the appropriate way to deal with this?
Thank the judge for the question, and make the same point again
Assessment Criteria - Appropriate language and behaviour
What is the only situation in which it is appropriate to ask a question of the judge in the assessment?
If they ask a question and you require clarification
Assessment Criteria - Appropriate language and behaviour
What is meant by avoiding prefacing your submissions?
There is no need for any lead in. Simply make your point, or if you do preface, use “It is submitted”…
Assessment Criteria - Appropriate language and behaviour
How should you refer to the client?
By their full name, e.g. “Mr John Smith” and thereafter “Mr Smith”, or their role in proceedings, e.g. the defendant
Do not refer to them as “my client”
Assessment Criteria - Appropriate language and behaviour
Should you greet the judge at the beginning of the assessment?
Only if they greet you
Assessment Criteria - Clear and logical structure
What are some rules for ensuring a clear and logical structure?
- Explain a general rule before talking about exceptions
- Distinguish clearly between facts and law
- Present analysis before conclusion so it is clear the conclusion flows from the analysis
Assessment Criteria - Clear and logical structure
What is the general order the submission should follow?
- State the party you are acting for and the nature of the application, expressly stating what you want (If it pleases the court, I act on behalf of [x] in this application for [y])
- Check the judge has all relevant paperwork (The court should have the following documents: [x], [y], and [z])
- Provide a brief summary of the background facts (If it pleases the court, I will give a brief outline of how the matter comes to be before you)
- State what power the court has to deal with the application (As you will be aware, the court’s power to grant this application is governed by [x])
- Set out the legal test step by step directing the judge to what the evidence is that meets the test and exactly where they can find it
- Summarise key arguments and remind the judge of: what the application is for, the court’s powers to deal with this application, whether it is discretionary or mandatory
Assessment Criteria - Clear and logical structure
What is meant by setting out the legal test step by step?
State the test in full and then set out each part of the test/rule step by step, but between steps, apply each to the facts and relevant evidence
Assessment Criteria - Clear and logical structure
What additional step might be required at the end of a submission in disputes?
You may have to deal with costs. If so, you should be provided with a schedule of costs.
Assessment Criteria - Engage with court appropriately
How should you approach eye contact?
Make enough eye contact to keep you from reading constantly from your notes, but do not stare
Assessment Criteria - Engage with court appropriately
What is the best way to structure sentences?
Keep them short, to make the complex seem simple
Assessment Criteria - Persuasive argument
How should you pace your advocacy?
Speak at a pace which enables the judge to note down key points
Assessment Criteria - Persuasive argument
How should you signpost your presentation?
Explain at the outset that you have [x] submissions to make, summarise each in one sentence, and then address each one in more detail
Assessment Criteria - Persuasive argument
How can you avoid the judge misinterpreting what you are seeking?
By expressly stating at the outset what you want, e.g. “I request that you order [summary judgment] in favour of the claimant for the following reasons…”
Assessment Criteria - Persuasive argument
How should you conclude to make your argument persuasive?
Making it clear once again what power the judge has to grant the application and then asking them to make the order
Assessment Criteria - Include all relevant facts
How might you mislead the court with regard to facts?
By misrepresenting facts or omitting facts which are not favourable to your client
Assessment Criteria - Include all relevant facts
What is the four step process to ensure you do not misrepresent or omit facts?
- In prep, write down the decision you want the judge to make and the reason why it is correct
- Record all facts which support this, and note down references in the documentation
- Record all facts which support the inverse of your case, and note your rebuttal to these facts
- In submissions, deal with evidence supporting your case and also explain the inapplicability of facts which don’t support your case
Assessment Criteria - Correct legal content, and professional conduct
What are the three steps to score on this assessment criteria?
- Spot relevant legal issues
- Provide a correct explanation of the legal issues
- Apply relevant law to the relevant facts
Assessment Criteria - Correct legal content, and professional conduct
What two types of law make up relevant law?
- Substantive law
- Procedural law
Assessment Criteria - Correct legal content, and professional conduct
When conducting advocacy, how should you submit the relevant law to the court?
Simply state it to the judge: “The relevant law is…”
Assessment Criteria - Correct legal content, and professional conduct
Regarding professional conduct, what four things should you obviously not do?
- Embellish or invent facts
- Use offensive language
- Make unwarranted allegations about opponent
- Make allegations of fraud without sufficient evidence
Preparation
Where is the 45 minute preparation carried out?
In an invigilated room with other candidates present
Preparation
What is the first thing you should do?
Read the instructions
Preparation
After reading the instructions, what should you do, and how should this be carried out?
Begin outlining a structure on paper (notes) by splitting the legal issues into sub-headings and outlining the relevant legal principles or tests.
Then, leaving space underneath these sub-headings to make detailed references to the evidence you will find in the documentation.
Preparation
In disputes, how should the relevant law be submitted?
Identify the power the court has under the Civil Procedure Rules to grant the applicatiton, and the test it will apply when deciding whether to exercise the power
Preparation
In criminal, how should the relevant law be submitted?
Identify the power/obligation the court has to grant the application, and the legal basis for this, e.g. Police and Criminal Evidence Act 1984 (PACE) or the Bail Act 1976
Preparation
How detailed should the notes be?
Detailed enough to deliver the submissions without undue hesitation and shuffling through the documentation
Addressing the court - civil
How is a High Court Judge addressed in writing and orally?
Written: Smith J
Oral: My Lord/Lady
Addressing the court - civil
How is a High Court Master addressed in writing and orally?
Written: Master Smith
Oral: Judge
Addressing the court - civil
How is a Circuit Judge in the High Court or County Court addressed in writing and orally?
Written: HHJ Smith
Oral: Your Honour
HH (his/her honour) is a tip off to having to call them Your Honour
Addressing the court - civil
How is a District Judge in the County Court addressed in writing and orally?
Written: DJ Smith
Oral: Judge
Addressing the court - criminal
How is a Circuit Judge in the Crown Court addressed in writing and orally?
Written: HHJ Smith
Oral: Your Honour
HH (his/her honour) is a tip off to having to call them Your Honour
Addressing the court - criminal
How is a Circuit Judge in the Magistrates’ Court addressed in writing and orally?
Written: CJ Smith
Oral: Your Honour
Addressing the court - criminal
How is a District Judge in the Magistrates’ Court addressed in writing and orally?
Written: DJ Smith
Oral: Judge
Addressing the court - criminal
How is a Lay Magistrate in the Magistrates’ Court addressed in writing and orally?
Written: Mr Smith
Oral: Your Worship