Why Win Cases?
You are a lawyer. Clients expect when you go to court on a case you should win it for them.
Why else do you exist?
Why else do you take their money?
The best win of course is where you do not have to go to court at all. Following the suggestions below may help you win many of these.
“Win” may have different meanings. Where someone is clearly guilty, “win” may mean that your client does not actually go to prison. If you are acting for an insurance company, paying lower damages than the claimant is asking may be regarded as a “win”.
For most of this article I am referring to “win” where your client wins their case. The important elements are
- Preparation, Preparation, Preparation
- Corroboration
- Documentation
- Strategy and Tactics and Publicity
- Advocacy
Each of these areas has numerous subdivisions. I start with the assumption that you are the lawyer or paralegal who receives the telephone call or walk in client.
First Contact With Client
Your first contact with the client is hugely important. Whatever you have been told before you meet the client, go in with a blank notepad and a very open mind.
What you have been told already is a third party’s information which may or not be accurate.
Even if you trust the source’s integrity and competence, it is just possible that there is a detail missing, or even a dimension missing. As an example of this, see “The ESN client” below. You can feel sorry for the prosecution lawyer as his case crumbled under him. He had four witnesses and four confessions and he still lost!
The ESN Client-https://chasjames.com/the-esn-client/
The Tree Killer–https://chasjames.com/the-tree-killer/
The Custody Case https://chasjames.com/the-custody-case/
The Background
In the first interview you are giving the client an opportunity to begin building confidence in you as his or her lawyer. And you are beginning to understand your client – to understand how s/he thinks. Their priorities may be utterly different to what you expect.
Some people are desperate to get out of custody. Others are feeling safer in custody than they would feel at home, particularly if someone is out to get them. Some are prepared to risk everything on a point of principle. Many just want a quick and easy answer to their problem.
Most people have a mindset that puts cases into categories or pigeonholes. “Burglary”, “debt collection”, or whatever. It is hugely important that you abandon this mindset and go into the first conversation with your eyes and ears and mind wide open. Barristers have the luxury of the case coming to them with all the information set out nicely and tied up in a pretty pink ribbon. You are more like the trained scientist setting foot on an unknown continent to discover what might be there.
What is this case about? It is very tempting to start with a highlight, like the first punch being thrown.
You need to understand the whole story, which involves going back minutes and frequently years. Sometimes you have to go back decades. One situation in the 1950s involved a teenage lout in a bus queue who jostled the man in front of him, poking him in the back. Eventually the man was pulled off the teenager, but it took several adult men to do it. One might think this a disproportionate response.
The background was that the man had been a Prisoner of War, held by the Japanese for six years. One Japanese Prisoner of War in three died of starvation brutality or disease. All of the Japanese POWs were physically and emotionally affected. The guards were brutal, and this man had suffered from a guard who tried to provoke him by repeatedly poking him with his truncheon just where the young lout poked him. The teenage lout had poked in just the wrong place.
Once the situation was known the police decided not to prosecute, because in the 1950s there was not a court in England that would convict in these circumstances, regardless of the law.
Another example was after the fire at Bradford City Football Club in 1985. Fifty-six people were killed and two hundred and sixty-five people were injured.
Before the Magistrates Court was a man who was not a stranger to the courts. He was a notorious football hooligan. When police officers were on football duty they kept note of where he was, because it was possible that trouble might erupt around him. Many police officers knew him by sight.
The charge was that he had driven a car which was overloaded, with too many people in it. He was disqualified from driving, so he was driving while disqualified. There is no insurance for disqualified drivers so he was driving with no insurance. He had refused to stop when a police officer signalled to him to stop, and in the opinion of the police officer his driving was reckless.
After this list of charges was read out he asked
“Aren’t you going to charge me with stealing the car?”
“Did you steal the car?”
“Yes”
At this point one of the magistrates intervened. “I see these offences are the date of the Bradford Fire.”
“Yes
“I pulled people out of the burning stand for as long as I could. The ambulances had still not arrived so I broke into the Directors car park, hot wired a car, loaded it with burnt people and I drove to the hospital. Along the way this (rude Yorkshire word) stepped out and tried to stop me, so I drove around him and I took the people to the hospital”.
This man had been seen on TV pulling people out of the burning stand.
There was a race between the magistrates to dismiss all charges and the prosecution to withdraw all the charges.
These examples go to show that even when a case seems crystal clear there may be issues and dimensions that change its nature.
One funny example was one dark rainy night in Bradford when a police officer noticed a group of young men who had clearly enjoyed alcohol that evening. They went into a kebab shop and bought kebabs. They unlocked a car and sat in it eating kebabs.
The police officer arrested the person sat in the driver’s seat for drunk driving. What the police officer did not know was that the car’s starter motor was not working, and a mechanic had already been booked to tow the car away the next morning. They were simply sheltering from the rain whilst eating their kebabs. Although one presumes intent when a drunk is sat in the driving seat, the mechanic’s evidence about the vehicle being unable to start negatived the presumption of intent.
More background
Sometimes exploring the background can produce startling information which changes the nature of the issue. I can recall as an immigration lawyer two cases where the men had admitted to the Entry Clearance Officer that they had only married my clients to get to England. As these admissions were recorded on the record of interview, the cases looked impossible. On digging a bit deeper I learned that both men had fathers living in England, and that both fathers were British before their sons were born. This meant that the sons were British Citizens by descent and had a right to come to the UK anyway. I wrote politely to the Entry Clearance Officers pointing out they had a duty to apply all the relevant law and told them they had to issue Right of Abode to the men.
On a similar note I had a political refugee who had paid agents thousands of pounds to smuggle him to the UK who turned out to be a British Citizen anyway.
I had a client who lost his case before he came to me because his previous lawyer had not dug deep enough into the client’s business practices. He ran a very busy petrol station, and because of this he usually had thousands of pounds of cash on the premises. He did not have to pay for the petrol for a few weeks yet. “Repo” men who repossessed cars for a living would telephone him to say that they wanted to sell a certain make and model of luxury car with the year of manufacture, the mileage, and in good condition. Did he want to bid? He would bid without seeing the car. They took three bids and if his was the highest bid they delivered the car to him and took away the cash. He displayed the car for sale on his forecourt and made a quick profit.
On the surface this looks fishy, because he was buying for cash a car he had not seen and he was buying it very cheap. He looked like a “fence” or receiver of stolen goods. However the cars were all lawful.
It turned out that one car was not – one of the repo men had a sideline of stealing cars and registration documents, too.
Had the background been fully explained to the jury it is unlikely they would have convicted. It was not explained at all, so they convicted.
The failure of the lawyers to explore and then explain his case properly cost this client his liberty and his business.
Get the client’s story
You must interview the client at the earliest opportunity. As a result of what the client says it may be necessary to rush out and take photos of the scene, secure evidence, order specialist medical photographs, have blood and urine samples taken and arrange medical reports before the injuries heal or reduce.
The sooner you know the client’s story the easier it is to obtain corroboration before CCTV evidence is wiped, witnesses die or move away, or the like.
Obtain the full story. In some cases give the client a pen and notepad or access to a computer and get them to write their own statement.
In a complicated tale I used to head each page of the pad “1997”, “1998” and so forth. Even if the client cannot remember exact dates the client normally can remember the order in which events have happened.
In political asylum cases I used to ask the client to explain their social religious family tribal and political background. Someone from a merchant family is likely to have a different perspective than someone from a religious family. A poor agricultural background is significantly different to a wealthy agricultural background. It is from these background situations that many political asylum cases begin.
Early education is also a factor, as anyone who was taught by nuns or went to a boarding prep school will confirm.
What set your early values? Often your parents, but also your grandparents and other relations contributed. All this can be 40 years before the incidents giving rise to the asylum claim, but we are creating a narrative that explains how the person got to the situation in which the incidents happened.
My own family has had three men called “Leonard” alive at the same time, and it is very easy to have two uncles called John. I had a case where the Home Office refusal document said that the asylum seeker claimed uncle John spoke to him in 1997, but uncle John had already been killed in 1991 – so the client was a liar. A detailed family tree can be hugely important – along with nicknames or call names.
In one case a woman had her children taken from her in part because when she fled her violent husband she took the children to the husband’s brother’s house.
The social worker said that my client should have taken the children to a home with her relations rather than her husband’s relations.
“You mean like her only sister?”
“Yes”
“Do you have an address for her only sister?”
“No”
“Do you know who her sister is married to?”
“No”
“If I tell you that this is two brothers married to two sisters and she took the children to her sister’s house, does that change your perspective?”
“Oh.”
A chronology is helpful. You can often date things extremely well if you operate on birthdays, national holidays, religious and social festivals, elections, events and the like. Reading the chronology alongside your client’s statement may sometimes throw up a discrepancy. Put the apparent discrepancy to the client, and another layer of information may come out.
I once took over a hugely complicated family financial dispute, only to find there was no document with all the known information on it. I went through the file throwing notes onto an A3 sheet of paper. Once all the information was together and organised it became possible to see what the truth was. Then I settled it.
The court will frequently require you to produce schedules where every issue in the case is set out, and the positions of the two parties are set out. This allows the judge to be sure he understands exactly the positions of the parties, where they are agreed, and what the differences are. It is a good exercise to prepare such a schedule anyway, to understand for yourself.
Another reason for going through the information is to be able to set it out in a form that makes sense to someone new to the case, like the judge.
“The Custody Case” above is an example of how careful preparation gives you the ammunition to destroy the other side’s case.
The trial scenes in “The Testament” by John Grisham and “The Girl Who Kicked the Hornets’ Nest” by Stieg Larsson are examples of how careful preparation works. They are also good examples of intelligent cross examination – pay particular attention to the order in which questions are asked..
What Is The Law?
Always check the law. I have known one situation where the “extract” from the Immigration Rules set out in the Entry Clearance Officer’s explanatory document was incorrect. The difference was that the rule was stated as “and” whereas the actual rule said “or”. Under “or”, my client won. To my shame, it was the judge who spotted the mistake, not me. I have checked every time since.
I have also known an entry clearance officer (ECO) refuse to admit someone to the UK because he was educationally subnormal. The appeal had lost.
I was consulted about a further appeal, and on checking the Immigration Rules I saw that there was no power to refuse. All the ECO could do was to require the man to report to a Medical Officer of Health when he arrived in the UK. I lodged a further appeal and wrote a studiously mild letter of query to the ECO.
With insurance policies, guarantees and the like always read the exact wording and check the Unfair Contracts legislation. One of the highlights of my career as an articled clerk (now trainee solicitor) was the day I found a hole in the Chrysler main contract.
If you are working in a court area where you are relatively inexperienced, read the Procedure Rules – there may be surprises! Powers you did not know about and deadlines for various actions may come as a surprise. Several lawyers have come unstuck in death claims arising out of air accidents where the claim limitation period is frequently two years instead of the usual three years.
Dig Deeper
It is often possible to obtain expert evidence. It is also often possible to challenge expert evidence. A key to this is assembling the information upon which your expert can work. Putting match boxes or cigarette boxes or banknotes in photos to give a scale can be very important.
Sometimes the fullest family tree can be important. The cases of Angela Cannings and Sally Smith show the importance of assembling all the evidence. Both were women accused of murdering their babies and pretending the deaths were cot death. In the case of Cannings it turned out there was a history of sudden infant death in earlier generations of the family about which she had never been told, which strongly suggested a genetic disorder. And the Smith case illustrates the attention to detail needed.
There is an Army phrase “time spent in reconnaissance is seldom wasted”.. Time spent with your client and other witnesses extracting the fullest possible information is seldom wasted. Dig deeper.
An advantage of being thorough is maybe one case in ten where digging that bit deeper unearths a nugget of useful information. Do not assume your client will tell you what is relevant because frequently the client does not know the information or does not realise it is important. The responsibility for the case is on you. That is why good lawyers are paid so much.
Defendant personal injury lawyers develop a “nose” for fraudulent claims, and there are now computer systems which are designed to detect likely fraud. Private detectives are frequently employed to follow suspected fraudsters and film them dancing and in other activities their injuries supposedly prohibit.
Preparing the Client
Particularly if you are an experienced lawyer, it is easy to forget that this is the first time your client has been in this situation. Frequently they are not in court of their own choosing, and not of their choice of timing either. A woman accused of murdering her child will have all the normal grief of a woman who has had her child die unexpectedly and all the horror of being accused of an offence she did not commit. Either situation is bad, but the combination of the two is horrific. And she has the added horror of being in prison before trial, too.
Your client may need a lot of support. If the client is of a different gender or sexual orientation to you, or significantly different in age or race, consider offering a more similar colleague as support and liaison.
You are trying to put the client at ease but NEVER say “It will be all right” or “Don’t worry”. You may mean well but you are lying to the client.
The client needs to understand a lot of things. Given the high anxiety and nervousness the client has, not all your information will sink in at the first discussion. It is wise to put what you say in writing as well as telling the client. This gives the client something physical to read and reread and understand. It protects you from suggestions you informed the client wrongly or did not explain fully.
Who are you? What is your name? What is your status? What are your qualifications and experience?
I normally saw clients in my room, with a notice board on the wall behind me covered in “Thank You” cards from nearly 50 satisfied clients. This display gave the clients confidence from the outset.
You can give the client a business card or even a small “flyer” listing your qualifications and how wonderful you are. This builds confidence.
You should also explain how the client should communicate with you. You may feel “Oh God its that woman again” and not want to answer the phone. Either fire her or treat her properly.
I normally explain that if there are news or developments I will send an email or telephone the same day and usually within half an hour of any development unless I am out of the office or in a client interview.
Explain to the client that you return phone calls within 3 hours if you are in the office, or within 3 hours of returning to the office.
I have telephoned clients at 8pm and 9pm, to their astonishment. There is no doubt that I will return the call.
You want to avoid the frustration for the client of feeling that telephoning you is very difficult. You are being paid, so why are you not available? They think the receptionist is lying (sometimes correctly) and that you do not care about their problem. Having to telephone you six or seven times just adds to the client’s stress. Your receptionist doesn’t like it either.
Returning phone calls at set times is another way to deal with it. Your call return times are say 11am, 2pm and 5.30 pm. Stick to them, and the phone frustration issue does not arise.
What is the legal position? What in law are the elements of the case? What does each side need to prove or disprove?
Get the client’s story first, because some clients will twist their story to fit what they think you want to hear. It ends in tears because they are now lying.
What is the procedure? Which side does what? How long does it take? What is it likely to happen? If there are deadlines what are the deadlines? To do what?
The client frequently asks about bail. The rules about bail in each jurisdiction are so different it is not easy to generalise. If you can show the client has an arguable defence, your bail case is stronger.
Anticipate the likely objections and arrange for the people who need to help – such as out of town relations with whom the client can stay – are contacted.
I once got a very dirty look from a magistrate after I said “According to the police these two Asians attacked six Whites”. I should have said “The defence case is of self defence, these two defendants were defending themselves when attacked by six people”. Be tactful.
Money has to be explained. Who is paying? What is the final bill likely to be and how is that calculated? What money is going to be needed at what points? In England there is often a risk of having to pay much of the other side’s legal costs if you lose, and if you win you still end up paying some money to your lawyer that is not recoverable from the other side.
If the client is eligible for legal aid, legal aid has to be discussed even if your firm does not do legal aid. What is the legal aid “charge”?
The client needs support. You have to give it or arrange for it to be given.
There are some clients who shoot their mouth off all the time. I particularly remember one who wanted to push all the buttons and pull all the levers at the same time, thinking that would make the machinery of justice work better. All it did was to cause significant difficulty.
If you are up to anything tricky, consider whether to delay telling this kind of client – but be aware of the ethical rules for your profession.
I had quietly arranged surveillance of two prosecution witnesses over a lunch hour to be able to ensure that they had not communicated with each other. The surveillance confirmed that they were not in contact with each other so there was no need to tell the client until after the case.
Corroboration
Corroboration is any evidence or information which, added to the evidence already available, tend to strengthen that evidence. If I say I am left handed, that may or not be true. If a succession of photographs and videos are shown illustrating me using my left hand in preference to my right hand, and they predate the important date, they can be corroboration.
One of my clients was arrested for child rape. He was not told when the offence had taken place, only that it was that very day. He was asked to tell the police his movements that day until the moment of his arrest. The police then checked out his story. At the time the rape was committed he was in the Central Library discussing the history of the area in which he lived with a local history librarian who remembered the conversation. She was corroboration of his alibi.
Documentation – Forgeries
My practice partner was looking at the letters that had gone back and forth in a repairs dispute case. There were four letters that the landlord claimed to have sent which the tenant client denied receiving. These four letters together shredded the tenant’s case. But the tenant said he had never received them.
My partner noticed that about 18 months previous the landlord had changed the layout of his letters. These four letters, which supposedly predated the change in format, were in the new style. And none of the old style letters mentioned any of the four letters, but they suddenly started being referred to in a letter of about 4 months ago. It was obvious that the landlord had produced these letters recently, but backdated to when he should have sent them. My partner destroyed the landlord in cross examination.
My firm had acted for a woman in an immigration case. She was a battered wife, applying under the then “battered wife concession”. Then she reconciled with her husband and we closed our file. About half a year later the husband’s solicitors asked for the file. We insisted on the wife’s signature and then parted with the file.
About a year later we were contacted by the police. The couple had fallen out again, and our file had been produced to the judge. On the file was an attendance note where my worker supposedly recorded that she had conspired with a named police officer to damage the reputation of the husband. The attendance note used a Latin phrase, and the attendance had taken 20 minutes. The judge had stopped the case, and had instructed the police to obtain my comments.
My comments were
(1) My clerk always used a particular computer and printer, and all her work was in a particular font and size. This note was in a different font.
(2) All our timings were in units of six minutes. We would record a meeting as 18 minutes or 24 minutes, but never 20 minutes.
(3) The young woman had worked for me for six years, and in all that time I had never seen or heard her use a Latin phrase.
We heard no more about it.
The reason for starting a section on documentation by talking about forgeries is because at some point in your career someone will try to fool you with a forgery. It may be a forged bank statement, a forged file note, a forged email, a forged court order or a forged will. They will not tell you it is a forgery either because they have been fooled or because they are trying to fool you.
Also be wary of documents covered in stamps and seals dealing with large sums of money. They are frequently bogus.
If you have never seen this type of document before, how do you know what they should look like? Always check on any document you are not comfortable with. As an immigration lawyer people tried to fool me with forgeries fairly often. I know about the ones I detected, and happily never heard about any I missed.
Documentation – Idiocy
I was instructed in a housing case. A court had previously ordered that my client could stay in the house, provided she paid the current rent and paid £5 a week off the rent arrears. On the whole she had kept to the order, but there were weeks when she missed or was late, and weeks when she did not pay the arrears. Eventually the landlady lost patience and applied to the court for the eviction to take place. The client came in with the rent-book and the court papers.
The rent-book took a bit of understanding, as did the calculations on the court papers.
Eventually I realised what had gone wrong. The landlady was originally owed £200 in rent arrears. If the rent and £5 arrears was paid, she quite properly reduced the arrears to £195. But if the arrears was not paid she added £5 to the arrears. The client had by now paid most of the arrears but the landlady’s incorrect additions made it look as if she owed £180. I wrote to the court and to the landlady’s solicitor explaining what had been happening and the proceedings were withdrawn. The landlord’s solicitor had just taken his client’s word for it and had not studied the documentation.
The Statements and Bundles
Every case revolves around statements. The statements always start with the name of the person making the statement, with an address and/or some statement of the person’s position or relevance to the story. The statement tells the story. The statement often refers to various documents. If this article had been a statement the article about the ESN client would be document “CJ1” (Charles James 1).
Sometimes there is a “bundle” (discussed below) where all the correspondence is numbered and paginated, so the letter from the Defendant of 17 April is “Bundle page 23”. or “Bundle B Page 23”.
The statement should be a clear and readily intelligible account of the party’s or witness’ involvement in the dispute. It should not be fiercely emotional or vindictive, but should be a calm recitation of events.
If dealing with issues of high emotion the deadpan recitation of events carries much more weight than an emotional rant. Generally speaking the statement is not the place to argue law, but it may sometimes be appropriate to explain what the person thought the law was at that time.
Accompanying the statement or statements is the chronology, a statement of events in the order in which they happened. In a complicated case it may be appropriate to have columns where the events in one location run parallel to the events in another location. Remember to adjust for time zones. The chronology should cross refer to documents in the bundle.
Then we come to the documentation. The judge does not want to wade through files of irrelevant documentation, so usually there is an order that there be an agreed bundle.
Everyone hates preparing bundles, but they can be a wonderful opportunity for you. If you set out the documentation, you can set the tone of the case. If Document 1 is the relevant clause of the contract, Document 2 is your client’s letter of complaint, Document 3 is the opponent’s inadequate response, Document 4 is your Statement of Claim and Document 5 is the Defence you have set out the essence of the case succinctly.
If the court rules that you have to set out the documents in a particular order, do what the court wants. But also have a “Concise bundle” with a different file colour over and above the official bundle as your “working bundle”. Obviously each document must state where in the official court bundle the original is to be found. And have spare copies of the concise bundle because it is likely that before the day is out everyone will be using it.
In a political asylum case my normal Bundle Order was:
Client’s statement.
Statements of other witnesses
Medical Report
Photographs
Expert Reports
Relevant Correspondence
Other Information
Country Reports
Newspaper clippings and internet research
Chronology
Skeleton Argument.
A Skeleton Argument is the document in which you set out for the judge and for your opponent a summary of the argument you are going to use at the end of the case, assuming there are no surprises. You should make provision for the judge believing your witnesses, and a fallback if the judge is unhappy about any uncorroborated evidence. You set out the law, and refer to the documentation in your bundle and the opponent’s bundle or the agreed bundle. If there are contradictions in the other side’s documentation you recite the relevant sentences or paragraphs. Of course, there should not be any contradictions in your case. You may wish to use alternate arguments for your client depending on what the judge finds as fact.
You will be referring to decided cases. They need the full citation, and either are annexed to the Skeleton Argument or you have copies (and spare copies) with you at court. Do not assume that the judge and your opponent will have copies with them. Either or both may have been thrown the file that morning because someone is off sick, or they may just have been too busy to read the papers ahead of the trial day.
Deal also with what arguments and evidence the other side will probably use. Confront them head on and explain why they are misguided or incorrect. I have had the compliment of seeing two pages of a judgement being my skeleton argument reproduced almost word for word.
Sometimes there is a straight conflict between two honest people. Do not attack the integrity of an honest person, but explain why the surrounding uncontested facts make your client’s version of events more likely.
In the Sherlock Holmes story “Silver Blaze” the curious incident of the dog in the night was that the dog did not bark in the night of the burglary – suggesting that the burglary was by an insider rather than a genuine burglary.
Various things done and not done by the parties immediately after the incident your case is about may give a clue as to which side is telling the truth.
More on Documents
Highly educated people like you and me tend to believe documents. We believed our textbooks. (Definitely a mistake. I have found three textbooks that got case details wrong or missed out important chunks of legislation.)
We believe what we write. We tend to believe what we read.
In a litigation situation this is a bad way to think.
You need to assess every piece of paper with questions such as “condition”, “provenance”, “credibility”, “content”, and “What’s missing?”.
“Condition” helps indicate whether the document is believable. Wage slips that have never been folded, letters that have never been folded for an envelope or never had a hole or holes in them to go on a file, paper that is too clean to be believable, all help to indicate a forgery.
“Provenance” is about where the document came from. A document from a workshop or garage with a smudge of oil is more credible than one without.
Has a document been in a file or a vault or has it been swilling about on someone’s desk? How likely is it that the only relevant document from a file survived but all the others perished?
“Credibility” may depend on what is being recorded and by whom. An attendance ledger where everyone signs in every day is fairly credible provided that the important signature is not the last on the page. In the Guildford 4 case the police station interview logs and interview notes were comprehensively forged by over 30 police officers to conceal what had actually been going on. The Defendants served 15 years before the convictions were set aside.
“Content” is of course what documents are about. What do the documents say, and what do they mean? In a school report “satisfactory” may be only one step up from “unsatisfactory”, and really the student is not doing as well as they should. The police quite often say that a person is helping them with their enquiries when the person is trying not to help at all. Sometimes something is recorded as fact that perhaps should be in quotation marks. The example above of the rent-book with incorrect entries in it shows that even if something is honestly recorded it is not accurately reported.
“What’s missing?” – what should be there? VAT returns, accounts, bills of lading, invoices, attendance notes, electricity bills, or what is missing from the documents that you have been given.
Strategy and Tactics and Publicity
Some cases are not winners. With them, the best strategy is to reduce the damage to your client. The tactics for doing this may include an early apology, an early payment of compensation, or accepting liability immediately. You want to end this case as cheaply and as quickly as possible. The advantages of doing this are the reducing of legal bills and the possibility of better publicity.
Once the heat has been taken out of the dispute the discussion of compensation can be more reasonable. If the other side are being silly, you can even present yourself in the media as the injured party. You are being honourable and they are being greedy.
Remember your duty to the client. From the lawyer’s point of view, earning lots of money from doing lots of work is fine. But if you could achieve a reasonable deal for the client quickly and cheaply, that is in the client’s interest.
If you are for the claimant it is usually in the claimant’s interest to push the case as fast as it will go. I have never understood lawyers who wait until the last possible moment before issuing proceedings or taking steps in an action. Unless there is a really good reason, get your bundle and other papers ready in good time and serve them early. It underlines to the court that you are being proactive and that the defendant is just trying to delay.
Most court systems allow you as claimant to ask for early judgement if the Defendant delays.
You can serve “notice to admit facts” which puts the other side into a difficult situation.
Part 36 offers in England are excellent. Get to know your court procedure rules very well, and use the procedures that have been laid down to help you.
You have a duty to try to negotiate, but normally you have no duty to sit around while the other side thinks. Putting the other side under deadlines for response times is in the Procedure Rules, so do it. It is your case. You set the pace.
If defending, you can try hard ball tactics like denying liability, suing the claimant’s lawyers for minor infractions, and generally being difficult. It can be fun, but remember to keep in close contact with your client who is likely to end up paying for your fun. You can also use the court’s procedure rules to put the other side under pressure to settle.
Non-lawyers tend not to understand the importance of the costs rules. As a lawyer, be aware of the costs rules and use the costs rules when negotiating.
Your reputation as a lawyer can be important. If everyone knows that you huff and puff but you do nothing everyone, including the court, will despise you. If you are known as a red hot tenacious fighter who will go as far as you need for your clients your opponents will respect this. If you normally win, people will try not to fight you.
Publicity can be both good and bad. It raises the stakes. It is also a way of putting pressure on the other lawyer’s client. Very often the threat of publicity is enough. Once there has been publicity, threatening more publicity is unlikely to be much of a threat because the damage is already done.
If you are going to use publicity, plan it carefully with your client. What are you trying to achieve? Is this just to get your photo in the paper again, or is there a good reason for publicity?
Advocacy
The case is well prepared. A reasonable settlement is not possible. It is going to happen.
If you are the prosecutor or the claimant, you have to prove your case either beyond a reasonable doubt or on a balance of probabilities. If you are the Defendant you have to put enough doubt in the evidence that the court cannot find against you. The cases above about the ESN client and the Custody Case show the importance of excellent preparation.
If you have been served with the other side’s statements, or even if you have not, make a list of the questions you are going to ask and the order in which you will ask them. Unless you are in a position to prove someone is a liar, it may be better to go in as an earnest enquirer after truth rather than as an adversarial lawyer. Even if you can prove the witness is a liar it is often better to go in softly. The witness is expecting you to be rough with them. If you are nice they may relax their defences.
The famous barrister F. E. Smith gently cross examined a child about his injuries.
“Show the Judge how high you can raise your arm now.”
Boy raises arm.
“And before the accident how far could you raise your arm?”
“Right up here”.
Boy raises arm even higher!
Insulting a witness may be enjoyable, but courtesy is often better. If the witness is relaxed the witness will be more forthcoming and will add more detail. That additional detail has twice secured acquittals for me because the full facts came out. After one such witness the Prosecutor actually stopped the case, saying it would be improper for him to proceed having heard this evidence from his witness. See the Sink Street case.
On the rare occasions when you have to be rough the judge will know that this is not your normal style, and the judge will more readily accept you have some reason for your unusual approach.
The golden rule of advocacy is not to ask a question unless you know what the answer will be. And you are not supposed to go on fishing trips.
I knew one advocate who on cross examination rarely asked more than six questions. I asked him why.
He said that confining himself to six questions meant that he only asked his best questions, and if his best six questions did not crack the witness, it was unlikely that any more questions would achieve anything. What are your six best lines of questioning?
Courtesy can pay unexpected dividends. In one political asylum case, fortunately not one of mine, the man’s case was that he had converted to Christianity from Islam, and he faced death if he were returned to his home country. The Home Office Representative did not believe him, and he was giving the man a hard time. The man was beginning to look ill, so the Home Office man stopped his questioning.
“Would you like a glass of water?”
“No thank you I’m fasting” (It was Ramadan – the Islamic fasting season).
The Home Office man who told me about this said it was not a trick question but was a genuine act of courtesy,
And Finally
You want to win.
Your client wants you to win.
There is a temptation to break the rules, lie or similar to win. Apart from the danger of being struck off or fined, you are marked for life as a liar and a cheat. Do not do it.
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