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Solicitor-Advocate (Higher Rights Civil) Sarah Newens spoke at our recent event at Chancery Lane on the art of good advocacy. Here, we share her best practice preparation tips for the magistrates court.
First, I’d like to give you some details on my background.
I am a solicitor who qualified in 1983. My early experience was working in a high street practice where we covered everything – personal injury, criminal, divorce and family, care proceedings, wills and probate and conveyancing. As time went on, I specialised – my practice is focused on family work, primarily care proceedings and complex children cases. In 2009, I qualified as a Solicitor-Advocate (Higher Rights Civil). My experience in advocacy ranges from being duty solicitor at South Western Magistrates Court to conducting long and complex care proceedings.
Bear in mind that while magistrates may not be lawyers, they are experienced people. Over the years, magistrates have made a number of comments to me about what they like to hear from solicitor advocates.
‘My client is turning his life around’ etc: magistrates view this sort of thing with some scepticism. They tire of stories about workshy defendants who are starting a job on Monday.
They should have thought about them before they committed the crime…
I have appeared before many excellent benches. I have also been in front of magistrates who have gotten the wrong end of the stick or made bad decisions. Preparation for good advocacy is a must to ensure that the bench understands what your client’s case is.
I was fortunate enough that my firm had the foresight to send me on an advocacy course when I qualified. I also trained at a time when the job of the articled clerk (trainee solicitor) was to clerk cases, so I had the opportunity to observe.
My first experience of court was on 31 December 1983, when I was sent to mitigate at West London Magistrates Court. I remember feeling sick as each case finished and anticipating my case being called. When it was eventually my turn, I was literally holding onto the bench in front of me to stop my hands from shaking. I don’t feel as bad as that nowadays(!), but I think every good advocate still feels a sense of nervousness and anticipation in wanting to achieve the best for their client.
Although I have done some criminal advocacy in the magistrates court in the past, my recent experience is in family, so my perspective is family-orientated. However, many of the same principles apply.
1. Ensure that the client and witnesses know the court date, the bundle has been filed at court in good time and any issues relating to the need for a translator or any other special measures have been raised with the court beforehand.
2. Often it is a good idea to have the email or letter filing the bundle or raising the issue with you in court, so that it is clear that you have taken all steps necessary to ensure the case can proceed.
3. In the early days of my career, I saw advocates being told off by judges for wearing the wrong colour of suit. It goes without saying that you should dress professionally, but sometimes it is worth having a word with your client about what to wear. I knew of a solicitor who was rumoured to keep a spare suit for his clients in the office.
4. Be realistic with your client beforehand as to possible outcomes. Too often, clients are put through cases in which inevitably they are not going to achieve the outcome they want, and yet they are surprised and shocked when the result comes.
I do a lot of care work, and it is often pretty obvious what the outcome is going to be. Having said that, in family cases, many clients are naturally vulnerable people, and are unable to give up their children to a care order – they want the court to make the decision, and it is a question of managing their right to have a fair trial and put their case without stressing them out too much. At some point, it is worth taking a course on managing difficult people. Courts are stressful places. Techniques such as taking your client outside to have a cigarette or for a cup of tea often work wonders.
5. Think beforehand about what you want to achieve in your client’s case. Identify where the gaps are. Prepare your questions. Keep them precise and to the point. The court needs advocates to confine themselves to addressing the points identified in the preparation for trial documents (if appropriate) as disputed.
6. In examinations-in-chief in family proceedings, the parties have usually prepared statements. Don’t take them through everything they have written down again – instead, explore new issues that have arisen since they filed their statements.
Don’t ask complicated questions, especially of lay witnesses, as this can confuse them. Don’t use double negatives. If an expert is against you, there is no point in asking them the same question posed in lots of different ways, as all you are going to do is re-enforce the case against you. You won’t get a different answer each time. Keep it simple and straightforward.
7. Make notes as you go along, although this is not always easy. I am a bit old-fashioned in that I am used to using making handwritten notes in a counsel’s notebook, but I do accept that typing onto an iPad is the future. In any case, find a way of highlighting:
8. Prepare your summing up. In a long trial, there is sometimes time to do this. In a short trial, you may have sketched out something beforehand. I find it is useful to make headings as to the main points I want to get across, although often it is a case of adding to this as you go along. I have a page in my notebook where I jot down points as they develop in the trial.
It goes without saying that if you are going to refer to the law, you must be able to quote it, have sufficient copies of any relevant case law with you, and that you have circulated it to your fellow advocates.
9. Bear in mind what I said earlier – magistrates like you to keep it concise. In criminal trials, don’t repeat what probation has said. Stick to giving any background information on your client that is not included in the report. Underline the salient points.
10. Be imaginative in your approach. Here’s an example.
Recently, I was acting for a mother in a care case. She had some learning difficulties, but understood the court was going to order her children to go to her cousin’s. However, she was not able to say she consented to this. It was tricky to handle – if she had opposed the case vehemently, it would have affected the frequency of proposed contact with her children, as she would have been said to be against the placement. She wanted to tell the court she thought the recommendation was wrong. I liaised with my colleagues representing the other parties. They agreed they would not ask her any questions. She was able to have her say, which she ended with a curtsey and the court went onto make the expected decision.