Communication

(SQE Advocacy Assessed skill - see www.sra.org.uk)

A competent advocate will be able to:

• Tailor communications according to the audience to be addressed (judge/client/ witness/expert/other legal professional).

• Ensure their communication is effective at achieving its intended goal.

• Ensure that communication is sensitive to the situation at hand and that any unwelcome news is imparted empathetically.

• Comply with court procedural rules and formalities on communication.

Key Practice Case

Inplayer Limited and Others v Thorogood [2014] EWCA Civ 1511 - this case con­cerned a number of procedural irregularities relating to the drafting of court documentation. It is a helpful reminder of how good drafting is essential to a good outcome at trial. In this case the court allowed an appeal against findings of contempt of court that were made against the appellant in earlier proceed­ings. This was based on alleged breaches of an interim injunction order.

The committal proceedings and the trial took place at the same time. The Court of Appeal noted that this was in itself a procedural error. In addition, at the trial the claimants sought to question the appellant about the allegations contained in the court documents, as well as new allegations of contempt that they had not included in the court documents. The trial judge dismissed the allegations of contempt that had originally been pleaded in the court document (the appli­cation notice) but went on to uphold two further allegations of contempt that had not been pleaded. The Court of Appeal held that this was a breach of Article 6.3(a) of the European Convention on Human Rights 1950 (the right of a defend­ant to be informed of the nature of the charges/allegations made against him). It was held that the trial judge was wrong to accept the allegations that had not been included in the court documents.

The Court of Appeal also went on to criticise the drafting of the appellant’s skel­eton arguments and stated that the document drafted by counsel did not com­ply with the requirements of the Civil Procedure Rules Practice Direction 52A.

The court made the following observation:

As anyone who has drafted skeleton arguments knows, the task is not rocket science. It just requires a few minutes clear thought and planning before you start. A good skeleton (of which we receive many) is a real help to judges when they are re-reading (the usually voluminous) bundles. A bad skeleton simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments. A good skeleton argument is a real aid to the court during and after the hear­ing. A bad skeleton argument may be so unhelpful that the court simply proceeds on the basis of the grounds of appeal and whatever counsel says on the day.

[55]

Practice Tips

• Check the court list prior to attendance at court to ensure you know the status of the judge that you will be appearing before.

• Always follow court etiquette and address the judge using their correct title.

• Adapt your writing style to suit your audience.

• Ensure that you maintain a professional writing style when writing emails to clients and legal professionals, including the court and judges.

• Read and become familiar with the SRA Standards and Regulations and any other Code of Conduct and Practice governing your profession.

• Always read the relevant court procedural rules relating to drafting of docu­ments or the use of template court forms before you begin drafting court documents.

• Be adaptable to both future change and ‘on the spot' change!

Practice Risks

• Poor written or oral communication that leads to misunderstandings or a lack of sufficient information for a client, judge or opponent.

• Weak structure and lack of content to your arguments that lead to an ina­bility to persuade the judge.

• Poorly drafted documents that fail to properly set out your client's case.

• An inability to support arguments with legal authority.

• Failure to include information to a client that is required as part of rules or regulation of your professional body.

• Ignoring your obligations and responsibilities under the court procedure rules in terms of writing and drafting.

EXERCISE A

Test Your Knowledge - Problem Scenario

You are instructed by your supervising solicitor to attend a debt hearing before a District Judge in the County Court. You are defending an interim application that has been brought by your opponent. Your opponent is represented by a bar­rister, Mr Lawman. The application is to dismiss your client's case because your firm did not serve the particulars of claim within the period of time required by the court rules. When the judge appears in the courtroom you immediately start to address the judge and to present your arguments. You refer to the judge as ‘Your Honour' throughout the hearing. You argue that even though CPR 6.1 of the civil procedure rules stipulates that the particulars of claim must be served on the opponent within 14 days of service of the claim form, this is an unrea­sonable period of time for busy solicitors to meet. You tell the judge that ‘my client believes that Mr Lawman has made the application in haste and that the application should be dismissed'.

Identify at least three communication errors that might have been made by you during this hearing.

Go to Section C for a suggested answer.

EXERCISE B

Test Your Knowledge - Multiple-Choice Tests

Test One

You are a trainee solicitor and have just seen a new client (Mr Herbert Merryman) who would like to instruct you to act for him in a housing matter. Mr Merryman has not instructed your firm before. Following the meeting, you write a letter to the client. Which of the following would you include in this first letter to the client?

1. A salutation that addresses the client as ‘Dear Herbert'.

2. Information about the estimated cost of their case.

3. Information about your firm's complaints procedure.

4. A summary of the nature of their case and the advice that you have given to them.

5. The name of your supervising solicitor.

Test Two

You have been instructed to act for a defendant who has been accused of theft of the sum of £25,000 from his employer. The case has been designated to be of medium severity. The matter has been listed for trial. Which of the following statement(s) is/are false?

1. The matter can be tried in either the Magistrates' or Crown Court.

2. Your arguments will need to prove a fact in issue. Aristotle called the ability to prove, ‘Ethos'.

3. You will need to be aware of your client's personal circumstances just as much as understanding the factual issues in the case.

4. You will need to pre-empt your opponent's possible arguments.

5. You will use a mixture of open and closed questioning during the trial.

Go to Part C for the suggested answers.

Self-Reflection Checklist