Making the right impression

In the latest instalment of a continuing series, the Solicitors Association of Higher Court Advocates offers advice on the issues which face solicitor-advocates



Q. I am a specialist family law solicitor. I normally instruct counsel to carry out my clients' ancillary relief advocacy work. My senior partner thinks I should undertake some of the advocacy work myself. I am worried that if my opponent is a barrister, my client will be disadvantaged. How can I make sure I give my client and the judge the right impression?


A. Your fears are misplaced. Many clients like to have their solicitor representing them at court because they feel it provides continuity and saves them having to recount personal and traumatic facts to a professional they have not met before. To impress a judge, you can 'walk the walk and talk the talk' by observing a few simple points:

What (not) to wear - most counsel wear smart black suits. As a solicitor it will be a dead give away if you arrive at court in colourful attire. You should always dress to impress, so choose a black/dark suit.

No scripts - nothing looks worse than seeing an advocate flicking furiously through a file on a simple point such as ages of dependent children or property valuations. There is no need to prepare long notes for opening speeches. For example, at a financial directions appointment, on a single page of A4, set out the following details for the opening note: marriage history, children, litigation history (date of separation, decree nisi), asset pot, disclosure and valuation. A useful tip is to colour code what you write down for each party, for example, red for your client, blue for your opponent and black for all joint facts. This information should obviously be taken from the financial statements of the parties. Basically, the judge wants to know what's in the asset pot and what the issues are.

Clarity and persuasion - one of the most powerful ways to be persuasive is to maintain good eye contact with the judge and watch the judge's posture. You will soon observe when the judge is with or against you. If the judge is not with you on an important point, deliver your submissions from a different or new perspective. If it is not your best point, move on. By narrowing the issues wherever possible you will increase opportunities for negotiation with the judge and your opponent.

Structure and signposting - it really helps judges if you can order your submissions. You can do this by telling him what you are going to address next and then signposting them to the next point. For example 'Sir, turning first to the issue of the property valuation... moving on, I wish to outline the position in relation to my client's entitlement to the pension share ...'

Q. I am not quite sure how long an opening speech for a financial dispute resolution (FDR) appointment should last, or what I need to include at this stage. What do you suggest is appropriate?


A. At FDR hearings the opening is brief. By this stage, the judge will be aware of the issues. If you are opening, state which party you represent and tell the judge the name of the advocate representing the opponent. Following this, you should tell the judge briefly about the: marriage history, litigation history, asset pot (hopefully without too much doubt) and the offers made to date (including without prejudice or Calderbank offers). It is useful to refer to percentages in reality. Be aware of the real cost of percentage differences.


Another tip when preparing for a FDR is to prepare a schedule of assets/liabilities on an excel spreadsheet. In a column to the side of each item you can write your comments in relation to each separate item. This makes it easy to refer to the points when addressing the judge and enables you to start 'poisoning the mind of the tribunal' by laying emphasis in relation to the contested assets.





Q. How should I approach my preparation for a final hearing?


A. Around 80% of cases settle at a FDR. If this cannot be achieved, the matter will be laid down for final hearing. It is necessary prior to the FDR to have considered what evidence is required for the final hearing. In general, think about the following: themes, what I need to prove and how I can prove it, disclosure (production appointments), clarity, dealing with the other side's case and proportionality.


To focus your thoughts you can draw up a table with three columns headed: what is my case? what is their case? and how do I prove my case? In each box, analyse the evidence you will need to present in the course of your examination in chief or cross examination.


Next, look at each statement and analyse them all under three headings: what is our case? what is their case? what is the evidence in this statement? Again this can be drawn up in a tabular form.


When opening, some judges like to have an opening note, some do not. Skeleton arguments should be prepared on any unusual areas of law and sent to the court in advance. You should give your opponent a copy of the skeleton with copies of authorities printed out. In your opening, make sure the judge has seen the bundles and state the position of the parties. This is also an opportunity to flush out the issues.


The golden rule for an examination in chief is that you should not rehash what is already in the statement. You should not lead your witnesses but you should seek to insulate them from attack. You must not assume any facts not yet in evidence. Confine your questions to: what? why? how? where? who? and describe. Avoid: did you? was it? and were you? You should use transitions with your witnesses. For example: 'Can we deal now with the property valuation ...'


For the cross examination you should deal with the following: points where your case differs, your case, undermine their case, the poisoned question, questions that elicit yes or no responses, and inconsistencies in the evidence/oral evidence. Throughout, you must control the witness and watch the judge. Remember to be likeable. Most judges are unimpressed by advocates who harangue witnesses.


Re-examination should only cover material that arose in cross-examination, it is a damage limitation exercise. Finally, the closing speech must pull together the strands of evidence, inconsistencies, comments on the quality of the witnesses, concessions and opening positions. Use percentages and calculations throughout and, finally, you should present points in relation to section 25 of the Matrimonial Causes Act 1973.


This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). For details of SAHCA, membership enquiries or advocacy questions please contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, e-mail: hilary@hradmin.co.uk