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It is more vital than ever to overcome the Crown Court judiciary’s scepticism of solicitor advocates, says Ronnie Manek. Here, he outlines his top tips on how advocates can hold their own and win the judge’s respect first time
Crown Court advocacy is a very different beast to advocacy conducted in the magistrates’ court. While in no way suggesting that magistrates’ court advocacy is a lesser art, the Crown Court demands a higher level of attention to detail of the advocate and operates at a slower pace in which legal arguments and the questioning of witnesses are conducted.
If you anticipate the prosecution’s case, you will always be ready and prepared for battle and more likely to impress the judge with your submissions by thinking on your feet
There has often been talk that the Crown Court judiciary is very dissatisfied with solicitor advocates becoming ever present in its courts and seemingly taking work away from the Bar. Of course, not all judges sitting in the Crown Court are anti-solicitor advocates and the ones that are can be respectfully put in their place. The only way to do this is by skilful preparation of your brief and articulating your submissions in a concise, succinct and respectful manner. It is not what you look like, it is what you can deliver that counts. Think to yourself: “I deserve to be here, and I am here to stay because I am just as good as counsel!”
So what is it that makes judges’ blood boil when you first appear before them? In my mind, it is the very fact that you are a solicitor doing counsel’s job and there is no place for you in the Crown Court because you have not had the specialist training that counsel have received through Bar school and pupillage. How can we get rid of this stigma that follows us? Below are some tips that you may wish to add to your armoury.
Always read your brief at least once without making any annotations, preparing case plans or formulating theories. This includes defence documents prepared on behalf of your instructing solicitor.
Identify the issues by dissecting your case starting from the indictment, ensuring there are no legal technicalities to address in relation to the validity of the charge(s). Once the analysis of the evidence is complete, evaluate the strengths and weaknesses of your case and deal with them in turn. In rounding up your procedural tasks, you will want to form the picture you wish to paint to a jury in your closing speech for them to deliver a verdict of not guilty. Remember it is not about convincing a jury that your client is innocent, but simply to create an appearance of doubt.
Next, scrutinise each witness statement and start brainstorming your ‘heads’ of cross-examination by using subject headings. Some advocates design and draft cross-examination questions word for word; others use bullet points for each area they wish to cover with the witness and expand on them through the course of cross-examination. Some find the latter a more effective approach as cross-examination allows scope for manoeuvre and spontaneity.
I generally draft the body of my closing speech first in order to focus my cross-examination on what I want to achieve in my closing address to the jury. The order in which you tackle your case is a stylistic preference for the individual.
Always draft skeleton arguments / written submissions in all legal arguments if you are able to as part of your preparation. This will impress the judge and focus their mind on the specific issues that support your argument. Never write a lengthy speech: it is called a skeleton argument for a reason! You add the flesh on the bones in oral submissions. Judges always like to have a document in front of them that guides them as to where you are heading with your oral submissions.
Remember, if you cite case law or statute always identify in an appendix or footnotes where the judge may refer to it, for example ‘Current edition of Archbold page 35, paragraph 1-20’. If citing case law, always ensure there are copies of the full authority attached to your skeleton argument.
Be professional and assertive, but remain polite at all times. If a judge loses his temper, do not respond in the same way
You will not always be placed in the luxurious position of being able to draft skeleton arguments in advance and often it is the case that your arguments will have to be done orally, while on your feet! This leads me to the next tip below.
In preparing your case for trial, make sure you know what the Crown’s case is, how they are putting their case together and the likely legal arguments they will present. For example, there may be a piece of evidence that is hearsay, but the prosecution have not served any notice. What do you do? You anticipate how the prosecution would attempt to make the piece of evidence admissible before a jury and what gateway they would use under sections 114 and/or 116 of the Criminal Justice Act 2003.
If you anticipate the prosecution’s case, you will always be ready and prepared for battle and more likely to impress the judge with your submissions by thinking on your feet.
Never argue bad points. You may think you have five or six good points, but pick three of the strongest. The more points you pick, the more you dilute your argument. This can give the impression to the judge that you are inexperienced. There will be the rare occasion that you may need to make four or five strong points, but this will be more likely in complex cases.
Once you have made your strongest arguable points do not ruin them by repeating them in a variety of forms - it will not make your argument tighter. The judge will have got your point the first time.
Some judges intentionally give the solicitor advocate a challenging time in order to test their skills and how they can cope under pressure, which they would not ordinarily do with counsel. Do not shy away from the challenge: embrace the opportunity. If you succeed, that judge will show you the respect you deserve every time you appear in front of him/her in the future.
Be professional and assertive, but remain polite at all times. If a judge loses his temper, do not respond in the same way. Idle threats do not assist you! You must respond articulately and respectfully in your submissions at a pace that is understood clearly. For example, you could use “if I could seek your honour’s indulgence to address you on the point a little further that would perhaps assist the court in dealing with the matter expeditiously”.
I had a recent encounter with a very patronising judge at Snaresbrook Crown Court who seemingly had a dislike for solicitor advocates. It was a preliminary hearing where there was no advantage taken of the early guilty plea scheme. The judge insisted on arraignment against my submissions and those of the prosecutor. The prosecutor suggested that a timetable be set for the service of papers and defence statements. The judge ignored the submissions and, to my client’s surprise, he was forced to enter a not-guilty plea which prevented any dismissal argument in the future when the actual evidence would be served and not just a dressed-up police case summary. I strongly opposed the arraignment procedure and specifically addressed the judge on the early guilty plea scheme provisions, stating that I was very aware of the Court of Appeal ruling in R v Caley  EWCA Crim 2821. He responded with: “clearly you are not aware of R v Caley and I do not know how long you have appeared in the Crown Court as a solicitor advocate, but it sounds like not a lot”. I took great offence by this as I have been appearing in Crown Courts around the country for 10 years, but I did not bow down nor was I disrespectful to the court. However, I did have a smile on my face which caused the judge to be angered further, remanding my client into custody and informing me “until you learn to compose yourself I am putting you at the back of the afternoon list and you can come back then”. In response, I informed the judge - respectfully - that what he was doing by remanding my client into custody was completely unreasonable and unfounded, and a decision that had been made without any justification. I asked the judge for his specific reasons, so I had a record of it, and in doing so hinting that he would be appealed by way of judicial review, but without expressly stating so. After much debate, he released my client back on bail and decided to set the protocol timetable which I was seeking from the very outset.
It was very difficult not to respond back in the same aggressive manner as the judge, but always remember that the advocate, no matter what, shall be respectful and courteous to the court. The message can be delivered in a more effective way than ‘barking’ back, but at the same time the advocate must never roll over and accept that the judge is always right. That is why we have appeal courts in this country!