No Dodging The Draft! (part 2)

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Following on from the last post, you will find tips and insight below on how to draft three key documents in civil litigation. For my sins, I must re-sit the Drafting assessment next month.

PARTICULARS OF CLAIM (continued)

To recap, in England, we have a system of fact-based pleading.

So, when drafting a claim for breach of contract, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That there was intent to create legal relations;
  • That the loss was reasonably within the parties’ contemplation;
  • That no exclusion or limitation clause applies;
  • That the claim is not statute-barred;
  • That the claimant has reasonably mitigated all losses;
  • That the claimant is the innocent party in this matter.

In the last post, you saw that the statutory interest rate on damages accruing for breach of contract is 8% per year. This rate is the same whether you are claiming in the High Court or County Court, although, depending on which court you are in, the statute differs. For High Court cases, claim interest under section 35A of the Senior Courts Act 1981. For County Court cases, claim interest under section 69 of the County Courts Act 1984.

When drafting a negligence claim, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That the defendant owed the claimant a duty of care;
  • That the loss suffered by the claimant is not too remote;
  • That the claim is not statute-barred;
  • That there was no contributory negligence on the claimant’s part;
  • That the claimant has reasonably mitigated all losses.

If claiming against a company vicariously (i.e. for an employee’s tort), you should name the tortfeasor-employee as First Defendant and the employer-company as Second Defendant. Then, in the second paragraph of the Particulars of Claim (having identified the Claimant in the first), state: “At all material times, the First Defendant was the employee or agent of the Second Defendant, acting in the course of his employment.”

If a claimant is claiming damage to (e.g.) his car caused by the negligence of the defendant, it is crucial that ownership is established. This may be achieved (e.g.) by stating that the defendant collided with a Ford Focus, registration number ABC 123, belonging to the claimant. Alternatively, you might simply state that the claimant was driving his car, when… etc.

When drafting Particulars of Negligence, remember that every allegation you level at the defendant (if satisfactorily proved) must be capable of amounting to a breach of duty. If you don’t need it, don’t plead it! On the other hand, fail to plead enough and you may find you’re stuffed!

When drafting Particulars of Negligence, a good stock phrase to use is “any or proper” – e.g. the defendant failed to keep any or proper lookout. This wording stops an allegation falling through if the defendant is able to prove that he was keeping lookout some of the time. The allegation says that even if he was keeping lookout, he wasn’t doing so properly.

Another good stock phrase is “any or any sufficient” – e.g. the defendant failed to take any or any sufficient steps to prevent access. This wording stops an allegation falling through if the defendant is able to prove that he did take some steps at least. The allegation says that even if he did take some steps, those steps weren’t sufficient.

Many more examples of stock phrases can readily be found in drafting.

In some negligence cases, e.g. road traffic claims, it is likely to assist the claimant’s case if the defendant is convicted of an offence for the same incident that has caused the claimant’s losses (such as careless driving). Indeed, many civil claimants will wait to see if a criminal prosecution is brought before commencing proceedings. Hence, the existence of a criminal conviction is a relevant matter which ought to be pleaded in the Particulars of Claim. I say ‘pleaded’ because it is open to the defendant to dispute a conviction’s authenticity, or he may simply appeal against his conviction and be cleared. Therefore, in the paragraph that immediately follows the Particulars of Negligence, you should state (e.g.):

“As evidence of the Defendant’s negligence, the Claimant will seek to rely on the fact that on 2nd May 2015 at Birmingham Magistrates’ Court, the Defendant was found guilty of an offence of careless driving committed at the time and date of the said collision.” – On first glance, this looks suspiciously like pleading evidence. Rest assured, however, that details of the when, where and what of convictions do qualify as fact.

It is fine to use separate ‘particulars’ headings for each individual claimant within the same claim. For example: Particulars of Special Damage Suffered by the Second Claimant; Particulars of Injury of the First Claimant (etc).

When claiming interest on damages in a PERSONAL INJURY case, there is no need to refer to any statute, though you should claim half the “special account rate” of 0.5% per year on special damages from the date of loss until today (state the sum due), and continuing thereafter until judgment or sooner payment (state the daily rate). On general damages, simply claim 2% per year from the date of service of the Claim Form until judgment – remember, interest is not payable on future losses!

When claiming interest on damages in a straight-forward negligence case (involving no personal injury), you do refer to one of the two statutes, but interest is simply claimed “at such rate and for such period as the court thinks fit” – so no calculations are necessary.

After interest, but before The Prayer, it is vital to include a statement of value in personal injury claims. This does not require a heading, nor is it complex. Simply state (e.g.): “The value of this claim exceeds £10,000 but does not exceed £25,000.” – the idea being to assist the court with track allocation. However, where there are multiple claimants in the same case, and all are obviously seeking comparable sums, you should caveat the statement of value thus: “In the case of each Claimant…”

This concludes the Particulars of Claim section. In sum, try to remember when drafting that defendants deserve sufficient information to fully and clearly understand any claim that they may be called upon to defend. And speaking of defending, the next key document that we will consider is called the…

DEFENCE

Again, England has a system of fact-based pleading.

So, when drafting a Defence, you should stick to pleading essential facts and avoid straying into legal argument or evidence. Do keep in mind, though, that you must allege all facts here that you plan to prove at trial.

The Defence has two main aims – (1) to respond to every allegation made in the Particulars of Claim, and (2) to positively advance the defendant’s version of events.

As a general guide, you should set out the Defence in a way that logically follows the Particulars of Claim. However, this does not mean that you should always try to ‘mirror’ the Particulars of Claim by drafting an equal number of paragraphs!

As when drafting particulars, you should start by fact managing the brief, but the approach differs for the Defence because the claimant has already set the agenda for things to come. Thus, to some extent, the defendant must ‘dance’ to the claimant’s tune. The best approach is to ensure that you are clear in your own mind what the defendant’s version of events is. Understanding the story from the defendant’s perspective should put you in a good position to work through the particulars and be able to spot lies, discrepancies and/or convenient half-truths.

For every allegation in the Particulars of Claim, the Defence must state whether the allegation is admitted, denied or neither (as the defendant has no knowledge of the matter stated). This is usually done on a paragraph-by-paragraph basis – i.e. admitting, denying or requiring proof as to whole paragraphs at a time. However, great care must be taken, as one paragraph may contain multiple allegations which need to be ‘unpacked.’

Remember that EVERY allegation must be responded to. The rules say that what you don’t deny (or require to be proved), you admit by default.

As a general starting point, the wording to use is:

“Paragraph X of the Particulars of Claim is admitted.”

“Paragraph X of the Particulars of Claim is denied.”

“The Defendant is unable to admit or deny the allegation contained in paragraph X, but requires the Claimant to prove it.”

You may be wondering why the rules of drafting don’t simply allow a Defence to state: “Everything alleged by the claimant is denied!”

The answer… wasted time and inefficiency. Not everything a claimant says is likely to be disputed by the defendant – unless the defendant is a highly vexatious character! For example, where two cars have collided, there may be common ground between the drivers involved. Both may agree that they were driving towards one another. Both may agree that they were on a narrow country lane. Both may agree that the collision happened on a sharp bend. Both may agree that it was raining heavily. Both may agree that visibility was poor. Both may agree that the road surface was slippery with mud. Both may agree that they were driving below the speed limit, etc. Thus, imagine how much longer the trial would take, and how much more expensive it would be, if the claimant had to adduce evidence in support of all such points. It is far better that the defendant states which points he takes issue with, and why.

It follows that under the rules of drafting, any time a defendant denies a paragraph (or multiple allegations) in the Particulars of Claim, he must immediately go on to state WHY. It will sometimes be necessary to state why and then state the defendant’s account of how it actually happened. If responding to multiple allegations within the same paragraph, dedicate a separate paragraph or sub-paragraph to each allegation in the Defence.

When responding to pleaded aspects of a medical report (as in a personal injury case), the basic wording of responses should be altered thus:

“Paragraph X is AGREED.”

“Paragraph X is DISPUTED.” [must say why!]

“The Defendant neither agrees nor disputes paragraph X, but has no knowledge of the matters stated therein.”

… The wording changes as the defendant cannot ‘admit’ or ‘deny’ things written in a medical report. He can ‘agree’ or ‘dispute’ them, though.

Again, if you fail to DISPUTE pleaded medical findings (or at least reply that you lack the knowledge to say either way), you will be taken to have AGREED those findings by default. The claimant will thank you for this. Your client may not!

By denying (or disputing) allegations, the defendant is thus choosing to make issues out of them. So avoid confusing the judge by using the word ‘issue’ in its looser, non-legal sense!

In a drafting assessment at Bar School, not denying certain allegations (e.g. causation) will result in automatic failure. However, you may get away with not responding to a less ‘vital’ allegation, provided you have AT LEAST set out the nature of your case in relation to the ISSUE to which that allegation pertains. In other words, taking each opportunity to tell your client’s story may save your skin later. That having been said, you will lose marks for being repetitious – so don’t get paranoid and add your client’s full account to every paragraph!

Be aware that ‘causation’ may be alleged numerous times, and for numerous aspects of the claimant’s claim. Deny causation, always! Beware dangerous terms such as:

  • because of…
  • as a result of…
  • due to…
  • owing to…
  • by reason of…
  • by virtue of…

… and, of course, the word ‘cause!’

The rules of drafting provide that MONEY CLAIMS are an exception to the general rule on denial, insofar as failing to deny an allegation that the defendant owes money to the claimant will not result in admission-by-default. Rather, the defendant is taken to require proof of the sum owing. Hence, in a drafting assessment, failing to deny the sum owing would count as a minor error.

Don’t get so hung-up on analysing words that you neglect to see the legal consequences lurking behind those words, ready to pounce. Thus, you must deny not only the words of an allegation, but its full substance too. For example, try to avoid a situation where (e.g.) a sympathetic judge may be tempted to find that, whilst the defendant wasn’t negligent in quite the manner alleged, he was negligent nonetheless. Avoid this by couching denials in broad terms, such as: “Accordingly, it is denied that the Defendant was negligent, either as alleged or at all.” This ensures that the burden of proving negligence weighs heavy on the claimant.

Just as for drafting Particulars of Claim, the Defence comes with its own set of handy stock phrases which can readily be found. The following is a list of stock phrases, which, used well, will make responses watertight:

“Except that [such-and-such also occurred], Paragraph X is admitted.”

“Except that [such-and-such did not occur], paragraph X is admitted.”

“Except that [such-and-such did occur], the rest of paragraph X is denied.”

“If, which is denied, [the Claimant has suffered such-and-such], it is denied that [such-and-such was caused by the Defendant].”

“and/or…”

“as alleged or at all.”

“Further or alternatively…”

“In the alternative…”

“Further or alternatively, the accident was caused or contributed to by the Claimant’s negligence.” [then particularise!]

Towards the end of your Defence, you may wish to include the following statement as a kind of ‘safety net’ in case you’ve overlooked something:

“The Claimant is required to prove all of the allegations set out in the Particulars of Claim, except those expressly admitted above.” – This is unlikely to rescue a badly drafted Defence, but it might help minimise negative marking due to minor oversights.

Aside from denying the claimant’s allegations, you may wish to plead a specific defence, such as limitation, contributory negligence or set-off. Limitation is self-explanatory. Contributory negligence and set-off, aside from being defences, also hold special significance for any counterclaim that the defendant may in turn wish to bring against the claimant. Hence, I will discuss these in the next section.

You may also wish to plead that the claimant has failed to mitigate his losses (if there is evidence to aver so), or that the damage suffered is too remote to claim for. You might require the claimant to prove the nature and extent of the loss and damage that he alleges to have suffered.

This concludes the Defence section. In sum, whilst busy dancing to the claimant’s tune, don’t overlook the need to ‘knock out’ as many of his essential particulars as possible. You should really try to undermine the elements of the cause of action brought against your client. It obviously pays to find out what those elements are before you draft the Defence!

DEFENCE AND COUNTERCLAIM

This final section will be fairly short. It does not need to be long, as we’ve already covered drafting a Defence, whilst ‘Counterclaim’ is just another word for the Particulars of Claim when drafted by a defence lawyer in response to the claimant’s claim.

However, the rule about avoiding repetition finds its greatest expression here. Basically, when drafting the Counterclaim (after drafting the Defence part of the document), instead of drafting a Particulars of Claim from scratch, the process is streamlined by cross-referring to paragraphs of the Defence. This saves having to re-state details such as the parties’ identities and the how, when and where of the (e.g.) road traffic collision. Basically, it works like this…

Imagine that the claimant is suing your client for colliding with his car. In turn, your client blames the claimant. Thus, as well as drafting a Defence to the claim, you are also instructed to draft a Counterclaim.

Imagine now that paragraph 2 of the Particulars of Claim sets out the full details of the collision between the parties’ cars. When drafting the Defence part of the document, you agreed with most of paragraph 2, except for maybe a couple of details. So, at paragraph 1 of the Defence, you pleaded the following:

“Except that [such-and-such did not occur], paragraph 2 is admitted.”

When starting your Counterclaim, there’s no sense in re-drafting all of the crash details. Instead, simply insert a paragraph like this:

“Paragraph 1 of the Defence is repeated.”

Job done! And if there’s something more you need to add, plead it thus:

“Paragraph 1 of the Defence is repeated, and further, … [add details].”

But make no mistake… your Counterclaim must contain all the essential ingredients of a well-drafted Particulars of Claim.

In the last section, you’ll recall that I mentioned the possibility of pleading the specific defence of contributory negligence. This should be done after denying negligence and causation, but before quantum, and particulars should be given under the heading: Particulars of Contributory Negligence. However, that’s not necessarily where it ends. If your client is counterclaiming against the claimant, you may wish to allege that, in fact, he was the negligent one. If so, you can cross-refer to the Particulars of Contributory Negligence in the Defence to support a negligence counterclaim, and add further particulars to these by pleading:

“Paragraph X of the Defence is repeated, and further, the Claimant was negligent in that he also… [list particulars].”

Another specific defence that I referred to was the set-off. In a nutshell, in certain types of cases (e.g. those where both parties have been dealing with one another in the course of a business), the defendant may be refusing to pay the claimant because, among other reasons, he believes that the claimant already owes money to him. Thus, the defendant may use his counterclaim as a basis for his defence. A full discussion of the set-off defence is beyond the scope of this article. However, if your client wishes to rely on his counterclaim as a full or partial defence to the sum being claimed, you should insert the following paragraph at the end of the Defence, just prior to beginning the Counterclaim:

“If necessary, the Defendant will rely upon his counterclaim in this action as a set-off to reduce or extinguish the Claimant’s claim.”

The set-off may serve as a total or partial defence, whereas contributory negligence is a partial defence only.

You may recall that near the end of a Particulars of Claim, you’ll find The Prayer. Counterclaims also need a Prayer, but instead of putting: “AND the Claimant claims…” you should put: “AND the Defendant counterclaims…” – An obvious point, yet easily overlooked in exams!

Finally, bear in mind that the defendant may choose to counterclaim against a third party who is not yet involved in the proceedings. This might happen if (e.g.) the defendant is being sued for colliding with the claimant’s car, although the defendant only collided with the claimant because ANOTHER DRIVER drove into the back of him, shunting his car forward. The fact of the other driver’s poor driving thus gives the defendant a defence to the main claim (“I wasn’t negligent!”), plus a counterclaim against the true culprit.

In conclusion, this post and the last one have given general guidance to the civil drafting process. If you’re looking for a user-friendly book to supplement stuffy materials, I recommend Pleadings Without Tears by William Rose. The 7th edition of this work was bought for me as a gift, though I had no time to enjoy it in the run up to my first Drafting exam. I’m thoroughly enjoying it now, and feeling more optimistic about re-sitting Drafting next month.

And to my more casual readers, I promise that the next post on this blog will be lighter!

No Dodging The Draft! (part 1)

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Well, Bar School is finished, and clearly, I’ve neglected to update my blog during the whole time I was there. However, I’m quite confident that any Bar-hopefuls reading this will soon be able to empathise!

Since my last post, I have undergone a total of six pupillage interviews – including a second-round interview, with another second-rounder in the pipeline and two more chambers still to hear back from. I plan to do a post about my interview experience soon. Who knows… I might even have a pupillage by then!

Meanwhile, I’m somewhat sad to report that I have failed Drafting due to making a silly mistake in the final assessment, and thus, I must re-sit Drafting in August. So there will be no Call to the Bar in scorching July for me. More like nippy November (or early next year). This news came as quite a shock after scoring ‘Very Competent’ in the January mock. But it just goes to show that anything can happen when the exam pressure is on.

Drafting is an essential skill for lawyers, though I’m finding there’s no way to ‘revise’ for it as such. The revision aspect starts about two weeks prior to the assessment, when you’re told which substantive area of the law your assessment is to be based upon (e.g. promissory estoppel in the law of contract). However, whilst substantive revision is limited, there are manuals and published guides to the drafting process in general.

This post is not intended as a comprehensive introduction to the skill of legal drafting. Rather, this post assumes basic knowledge of the three following documents:

(1) Particulars of Claim;

(2) Defence;

(3) Defence and Counterclaim.

I will use this post, and the one after it, as a chance to share some tips and insight gleaned from my books. At a minimum, writing this stuff ought to help me improve, but if my words should reach across Google to assist some other deflated drafter in future, so much the better!

PARTICULARS OF CLAIM

Despite my warning that this is not a beginners’ guide, I will start on a fairly elementary note as it helps to keep things straight for me!

It must be borne in mind that a Particulars of Claim is not the same thing as a Skeleton Argument; hence, drafting particulars does not require the lawyer (or law student) to justify assertions that he or she makes by reference to statutes, case law, eyewitness or documentary evidence (etc). In fact, now is a good time to contrast the skills of drafting and opinion writing, as doing so will help make the purpose of drafting a little clearer.

Early in the life of a case, a solicitor may seek your learned opinion, e.g. to decide whether there is a good prospect of success. Thus, in advising your solicitor as to the merits of the claim, you must take everything you read, including everything the lay client has told you, with a pinch of salt. For instance, the lay client may claim that she had an “oral agreement” with a company whom she wishes to sue, but it would be quite negligent to assume this to be true just because she tells you so. You are expected to consider how the fact of this alleged oral agreement can be proved. So, you might start by asking your solicitor to take a statement from the lay client, recording the how, when and where in minute detail. If the agreement was made over the phone, you might ask for copies of phone records to try and back this up (etc). Hence, nothing should be taken for granted at this early stage. As the barrister who may end up arguing this in court, you must consider how to prove everything that needs proving.

Drafting, however, calls for a different mentality from the barrister.

Let us assume that having taken your advice, the lay client instructs her solicitor to take the matter forward. “I want my day in court!” she demands. Now comes the moment for putting a Particulars of Claim together, step-by-step, meticulously asserting all crucial facts in support of your client’s case. It may be that the lay client has only weak evidence for proving the alleged oral agreement. Nevertheless, provided she has been warned and advised at the opinion stage, and provided she is not obviously telling lies, then now is the time for poker faces. You present the alleged facts in good faith, sure that if the case ever sees the inside of a courtroom, all will be proved… even if the client’s hopes are riding on your magnificent skills of cross-examination!

OK… I’m over-simplifying! The point is: drafting just comes down to asserting (or ‘pleading’) facts/allegations needed for your client to win – no more and no less. If it’s a contract claim, don’t discuss the doctrine of consideration, but do state what each party did or promised to do. If it’s a negligent driving claim, don’t mention Nettleship v Weston, but do state that the defendant was driving his car when he collided with the claimant.

Hence, just write the right things to make the law bite, and have ye some faith that proof required will come to light.

In sum, an opinion is seen only by you, the solicitor and the lay client; it is thus a private document that may be used for reality checking. But a Particulars of Claim is different; it is a document served on the court and the other side; it is the first document to declare: “We Mean Business!” – and if drafted well, it could persuade the other side to settle.

Having clarified the nature and purpose of the Particulars of Claim, let us now consider the steps required to draft particulars for breach of contract and negligence – two subjects commonly tested on the Bar Course.

For a breach of contract claim, before putting fingers to keyboard (or pen to paper in the exam), you should ‘fact manage’ the brief by reading and identifying information that fits snugly under each of these headings:

  1. Parties and Background;
  2. Agreement;
  3. Terms;
  4. Defendant’s Knowledge;
  5. Performance;
  6. Breach;
  7. Causation, Loss and Damage;
  8. Interest;
  9. Pre-Action Conduct;
  10. Remedies Sought.

These headings merely offer a way for you to conduct fact management. The Particulars of Claim should not be drafted with these ten headings! Nor is it expected that a Particulars of Claim will contain ten paragraphs, each dealing with just one of the above. Indeed, it will not always be necessary to plead a defendant’s alleged knowledge (#4) or failure to perform his alleged obligations (#5), and the other elements may require more than one paragraph each.

So what exactly do I mean by fact management? …

Parties and Background?

– Who are the parties? [Identify them clearly!]
– Were either or both acting in the course of a business? [If yes, say so!]
– Had the parties dealt with each other previously? [If yes, say so!]
– Has damage been caused to property? [If yes, state whose property!]

Agreement?

– Some may prefer the word ‘contract’ to ‘agreement’ – that’s fine.
– Is the exact date of agreement known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Was the agreement oral? [If yes, try to state the exact words used!]
– Was the agreement written? [If yes, identify all relevant documents!]
– Was agreement mixed oral/written? [If yes, clarify as much as possible]
– Is it clear what the agreement was for? [If yes, identify subject matter!]
– Was there clearly a bargain? [If yes, state what was done or promised!]
– Do not use academic words like ‘consideration’ – you’ve been warned!

Terms?

– Note that an agreement-in-principle means nothing without solid terms.
– It’s fine to skip this bit if the terms are obvious from what was agreed.
– Terms can be express, or implied by statute (e.g. Sale of Goods Act).
– Always set out express terms before any implied ones.
– Only set out terms that you are alleging the defendant has breached!
– No need to copy very long terms word-for-word. Paraphrase them.

Defendant’s Knowledge?

This is only relevant in cases where you’re planning to argue that the loss or damage is not too remote. In such cases, identify anything said by or to the defendant at the time of agreement which supports what he ought reasonably to have had in contemplation. For example, when promising to deliver a new cooker by 2pm on Friday, was the defendant aware that failure would mean the claimant having to cancel a big dinner party?

Performance?

Set out what the claimant did, and what the defendant did wrong or failed to do. For example, the claimant (buyer) may have paid for a cooker, but the defendant (seller) has failed to deliver that cooker as promised. Conversely, the claimant (seller) may have delivered the cooker, but the defendant (buyer) has failed to make payment on delivery. Sometimes, agreements ‘fall through’ before either party has performed obligations; hence, performance is irrelevant in such cases.

Breach?

– You must expressly state that the defendant breached the agreement!
– If you fail to expressly allege breach against the defendant, the court (or
your examiner) will not rescue the claim by inferring that he’s at fault.
You’ve been warned!
– In what way/s did breach occur? [Identify each violation precisely!]
– Is the exact date of breach known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Is defendant asserting repudiatory breach due to a failure of claimant?
– If yes, must be able to state that claimant did not accept the repudiation
… nor did claimant affirm the contract after breach occurred.

Causation, Loss and Damage?

– It is essential that you start the causation paragraph with: “As a result of
the Defendant’s breach, the Claimant suffered loss/damage.” If you fail
to expressly allege causation, the court (or your examiner) will not
rescue the claim by inferring its existence. You’ve been warned!
– Allege causation, then put a heading: Particulars of Loss and Damage.
– Under that heading, set out financial losses in a simple, itemised list.
– If a precise sum is being claimed, set out how it has been calculated.

Interest?

– Does an express term of the agreement set out how much interest may
be payable in the event of late payment? [If yes, state that rate!]
– If the contract is silent as to interest, identify the relevant statute for
claiming interest and state the statutory rate – e.g. 8% per year.
– In any event, calculate the daily rate until judgment or sooner payment.

Pre-Action Conduct?

Often a formality. State whether both parties have complied with the Practice Direction on Pre-Action Conduct – that is, unless the facts reveal that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest as set out in paragraph X.

… but make sure to say so if different remedies are being sought as alternatives to one another. Wouldn’t want the judge to think you’re being cheeky by asking for them all!

That concludes breach of contract. Moving right along.

For a negligence claim, before putting fingers to keyboard (or pen to paper in the exam), you should fact manage the brief by reading and identifying information that fits snugly under each of these headings:

  1. Parties and Facts Giving Rise to Duty;
  2. Accident/Events/Cause of Complaint;
  3. Cause (or Causes) of Action;
  4. Causation, Loss and Damage;
  5. Interest;
  6. Pre-Action Conduct;
  7. Remedies Sought.

Again, these headings offer a convenient way for you to conduct fact management. They should not be treated as an exact ‘template’ for your drafting.

So what exactly do I mean by fact management? …

Parties and Facts Giving Rise to Duty?

– Who are the parties? [Identify them clearly!]
– Simply state the facts that qualify your case as a duty-of-care scenario.
– If defendant was a driver and the claimant a pedestrian … say so!
– If defendant was an occupier and the claimant his visitor … say so!
– If defendant was an employer and the claimant his employee … say so!
– But don’t use academic terms like ‘duty of care’ – you’ve been warned!
… unless no duty exists, or the duty is quite unusual (very rare today!)
– Remember:  you simply write the right things to make the law bite.

Accident/Events/Cause of Complaint?

Describe, e.g. the car collision, in precise detail – including location, time and the date it occurred. If the exact date is uncertain, use “on or about” to approximate. Also, use neutral language to describe events, as you will be pointing the finger of blame at the next step, when you formally accuse the defendant of being negligent.

Cause (or Causes) of Action?

– You must expressly state that the (e.g.) accident was caused by the
defendant’s negligence and/or the defendant’s breach of any relevant
statutory duty that may apply to the facts. At this point in your draft,
it is fine to refer to relevant statutory duties, though the names
Donoghue and Stevenson should not be seen anywhere (unless those
happen to be the parties’ names!), nor should any other cases be cited.
Imagine that statutory duties get a mention in drafting as Parliament is
supreme! But judge-made law must be kept on the down-low.
– Allege that the defendant’s negligence and/or breach of statutory duty
caused the accident, then put a heading: Particulars of Breach of
Statutory Duty (if relevant) followed after that by the heading:
Particulars of Negligence. You must deal with any statutory duties
before common law ones – again, because Parliament is supreme!
– Just prior to the ‘Statutory Duty’ heading, identify which statute and
section number applies.
– Under both headings, make your particulars… particular! That is, list
every possible act or omission on the part of the defendant which could
amount to negligence. Unlike when describing the breach of a contract,
breach of duty offers scope for creativity. Even a typical car accident
can be attributed to many possible faults on the part of a driver, and
you are free to allege them all, assuming they can be credibly alleged –
e.g. it wouldn’t be fair to allege that the driver was busy changing a
CD at the moment of impact if there is no evidence to support that.
– If accusing multiple defendants of negligence within the same claim,
dedicate a separate paragraph to making each accusation, then draft
separate particulars of negligence/breach of statutory duty against each
individual defendant. Avoid confusing the judge at all costs!

Causation, Loss and Damage?

– It is vital that you start the causation paragraph with: “As a result of the
Defendant’s negligence and/or breach of statutory duty, the Claimant
suffered injury and/or special damage.” If you fail to expressly allege
causation, the court (or your examiner) will not rescue the claim by
inferring its existence. You’ve been warned!
– Next, put a heading: Particulars of Injury (if the claimant was injured).
– Under that heading, list all injuries sustained. In addition, the following
information must be provided:

  • Claimant’s age and date of birth;
  • Treatment received to date;
  • Claimant’s present situation;
  • Future prognosis;
  • Any other relevant matter, such as a likely handicap on the labour market;
  • … and reference must be made to the medical report that should accompany the Particulars of Claim.

– Next, put a heading: Particulars of Special Damage.
– Under that heading, simply state: “The special damages claimed by the
Claimant are set out in the schedule of past and future expenses and
losses served with these Particulars of Claim.” On my Bar course, it is
not necessary to draft this separate schedule, so that’s job done!

Interest?

State the relevant basis for claiming interest (daily rate only needed in personal injury cases).

Pre-Action Conduct?

Often a formality. State whether both parties have complied with (e.g.) the Pre-Action Protocol for Personal Injury Claims; that is, unless the facts make plain that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest under section 35A of the Senior Courts Act 1981 to be assessed.

This concludes Part 1. In Part 2, I will provide further tips on drafting the Particulars of Claim, and will discuss drafting the Defence document, whose aim should be to ‘knock out’ as many of the essential particulars as possible. I will also discuss the Defence and Counterclaim document, which draws the last two together, but with a few neat tricks of its own.

Major Scholarship Award!

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Honourable Society of the Middle Temple, London.

A couple of weeks ago, I opened an e-mail from Middle Temple to find that I am the recipient of a Jules Thorn Scholarship – providing an impressive boost for my CV, as well as a highly generous cash award to help take the sting out of Bar School. Naturally, as a blawger, I wish to offer some words of advice based upon my experience of this process.

Firstly, it should go without saying that if you wish to compete for a scholarship (and yes, it really is a competition), then your application form must be flawless. In other words, there should be no typos, no spelling mistakes and appropriate use of grammar throughout. In applying for a scholarship, you are holding yourself out as a would-be barrister; hence, the form says a lot about your attention-to-detail and written advocacy potential. My advice is to treat your application for a scholarship as though it were an application for a pupillage (as I did). Aim to be accurate, articulate and persuasive in your written responses to the questions…. but don’t then go and forget what you have written!

Secondly, if possible, try to organise your referees ahead of time. For a Middle Temple scholarship, you must arrange for two references to be submitted shortly after the application deadline. One reference must be academic – that is, a written statement of your intellectual ability from a professional (such as a former law tutor) who is in a position to comment both honestly and positively. For my part, I was extremely fortunate to be able to approach two respected ‘names’ in the law. I cannot say if using famous referees adds more value, but in my case, it clearly didn’t hurt. I met my esteemed contacts at legal events…. and was sure to stay in touch with them afterwards, regularly updating both as to my achievements in mooting, publishing, etc. Therefore, I cannot stress enough the value of networking. At a minimum, however, you should have a couple of law tutors (or perhaps one tutor and a lawyer) in mind, whom you could call upon to support your application whole-heartedly. Do let your intended praise-singers know, though!

Thirdly, start listening to the weekly programme Law in Action on BBC Radio 4. If you have a TiVo or Sky Plus box then you can set your machine to record it. Past episodes can be replayed online. This show is topical, but more importantly, it is fantastic at putting complex legal matter in simple terms which everyone (including non-lawyers) can grasp. In the days leading up to your scholarship interview, be sure to check-out Law in Action and, as a backup, read a quality daily newspaper like The Independent. This will ensure that you arrive fully briefed as to the latest legal news and political developments. Of course, you should form reasoned views of your own on current affairs and be ready to talk about these if required – as I was, and as you probably will be too. A couple of minutes spent discussing one topical issue is the most likely scenario, although, if (like me) you are cunning, you can steer the panel towards the issue that you would most like to discuss, rather than waiting for them to spring an issue on you at random. Remember that you must look for possible merits on both sides of a debate, no matter how wrong you personally consider one side to be.

Lastly, it may sound like a tired old cliché, but it pays to show manners…. literally, in my case. I replied to my scholarship e-mail a few days later, asking that my sincere thanks be expressed to the members of Panel #1 – who clearly saw the best in me. I said that the award has left me free to focus on securing pupillage, and I aim to show that the panel’s faith has been well-placed. A couple of days later, I received a reply from one of the panel members who invited me to meet with him for coffee (since we were soon to be in the same neck of the woods). We met, and I was treated to some rare personal praise, as well as some useful advice for Bar School…. and an offer of a few days’ work experience! Not a bad return on a bit of common courtesy. Hence, I would advise not leaving your manners at the interview room door. If you should get an award, follow through and say thanks to your panel.

As an after-thought for Middle Templars, the pupillage portal will probably have closed by the time you hear back from the Inn; hence, it will be too late to update your pupillage applications with details of a scholarship. However, it is worth checking online (as I did) to see if any deadlines have been extended for chambers that you may have applied to outside the portal. To my utter delight, I found that one of my non-portal sets had extended its pupillage deadline by a further two weeks. I thus e-mailed the head clerk of that set with details of my scholarship, and was assured that this new information would be added to my form.

The Jules Thorn Scholarship is one of the best awards that an aspiring barrister could hope for, and I feel proud to have received it. But no one gets a scholarship unless he or she is found, on a number of levels, to be worthy. Therefore, aside from the useful cash injection it brings, a scholarship (of whatever title) serves as your personal endorsement from the profession itself.

Make it count!

rootin’ tootin’ mootin’ !

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ImageI apologise for my absence from this blog lately. So much is happening right now. In addition to the masters, I’ve had two rounds of mooting to contend with, plus a mock scholarship interview (to help prepare me for the real thing at Middle Temple shortly), and I’ve been researching my chosen sets for pupillage applications. It’s not all drudgery, though…

I am delighted to report that, as well as holding the UKELA Junior Mooting Shield (a national prize), I now hold the Birmingham Postgraduate Mooting Cup, too! This award could not have come at a better time. It will surely help to strengthen my pupillage applications by proving that I have a knack for advocacy – bearing in mind that I have not yet been to Bar School.

This year’s moot problem was a fairly easy one to grasp, so thought I’d use this post as a chance to share my winning approach with readers. The problem concerned the crime of theft. Specifically:  Can a person who receives a valid gift be held, under the Theft Act, to have “appropriated” the property involved? Or, putting it more plainly:  If you sit back and accept a valid gift from someone, have you committed the actus reus element of theft?

On first glance, you might be forgiven for thinking:  “Of course not! If a person makes a valid gift to me (meaning that person acts freely, with all their marbles) then I have done nothing physically wrong. I have not robbed, tricked or deceived the other into parting with their property.” And yet, in the case of Hinks (2000), the Law Lords held that accepting a valid gift can indeed count as the first step on the road to a conviction for theft. In Hinks, a woman accepted a large sum of money from a vulnerable (but not mentally incapable) man whom she was entrusted to care for. Thus, Hinks set a precedent whereby even accepting presents can count as “appropriating” property. Of course, appropriation on its own is not enough. To be found guilty of theft, a jury or magistrates must be satisfied that you appropriated property dishonestly. But with everything now counting as an appropriation, it is worrying to think that, with a good prosecuting advocate in court, any dealing with property might be made to appear dishonest.

This was the dilemma facing my fictitious client in last week’s moot. My client, Professor Smart, was an eminent archaeologist who visited Mrs Jury, a collector of royal artefacts. The professor used his charm to persuade Mrs Jury, an elderly widow, to make a gift to him of the recovered finger bone of a former king of England, King Ricky III (who invents these names?!). The professor intended to display this item in his museum for all to look at. Mrs Jury was happy to oblige. She handed the item to the professor for him to take “as a present.” But the next day, she changed her mind and reported the incident to police, claiming to have parted with the artefact during a “moment of madness.” This led to the professor’s arrest and conviction for theft, which he appealed to the Supreme Court with the help of a budding young barrister… Yours Truly.

It was clear to me that Hinks is a major weight that would need to be lifted if my client was to stand a chance. I thus began by arguing that Hinks itself is bad law.

The 1968 Theft Act did not result from debates in Parliament;  it was envisaged by the Criminal Law Revision Committee in its 8th Report, which was presented to Parliament for consideration along with a draft Bill. Parliament surely liked this Bill, for it was soon enacted into law. Hence, to ascertain the true meaning of the word “appropriation”, it seemed logical to discover what the Committee’s report had to say. The Committee had stated that “appropriation” was to have the same meaning as “conversion” – a tort, or civil wrong, committed whenever a person deliberately usurps an owner’s right to dominion or control over their property. An owner might sue for conversion if another person offers their property for sale (or sells it) without consent, or physically removes their property without consent, or destroys it, etc. I argued that, clearly, accepting a valid gift does not belong in the same category as offences such as these. None of an owner’s rights are usurped if passed voluntarily to another as a valid, unconditional gift. I thus argued that the meaning of “appropriation” stated by the Committee should be treated as the one which Parliament intended – a view shared by Lord Lowry in his Gomez dissent. If there is no tortious conversion, there is no criminal appropriation.

My next attack on the Hinks precedent came from human rights law.

I argued that the development made to the law by Hinks violates the Article 7 guarantee of freedom from arbitrary prosecution. In other words, not being sure if accepting a gift could lead to you being prosecuted is repugnant to the Rule of Law. In the famous “rape in marriage” case, the European Court of Human Rights held that judges are allowed to develop criminal offences via judicial interpretation, provided (1) that developments are consistent with the essence of the offence, and (2) that developments are reasonably foreseeable.

I argued, firstly, that the Hinks development is not consistent with the essence of the offence of theft because it is less about protecting property rights from usurpation, and more about protecting vulnerable persons from exploitation at the hands of the unscrupulous. Yet, in 2006, Parliament created a new criminal offence for just this purpose, termed:  Fraud by Abuse of Position. What reason could there be for this, except that Parliament never intended theft to be resorted to as the means of punishing those who exploit the goodness of others?

I argued, secondly, that the Hinks development was not reasonably foreseeable because it stands in diametric opposition to the civil law of gift. Indeed, if Miss Hinks had sought advice from a solicitor prior to accepting gifts from the vulnerable man in that case, a solicitor would surely have said that it would be “most surprising” to find that an activity which is perfectly legitimate under civil law could, at the same time, form the basis of criminal liability. I submitted that a solicitor’s “most surprising” would hardly accord with a court’s “reasonably foreseeable.”

By this stage, judicial interventions had taken their toll. My time was running short. I thus invited Their Lordships to overrule Hinks, then I moved swiftly to the alternative strand of my argument:  that Hinks can be distinguished from the facts of the instant case since no special relationship existed between Professor Smart and Mrs Jury, unlike the relationship of carer and cared-for that existed in Hinks. I suggested that something like a fiduciary duty might even be said to have existed in Hinks, which would have had the effect in law of rendering gifts invalid, since it is arguably unethical for carers to profit from their trusted position. Therefore, if no valid gift was made in Hinks, that might account for how the defendant had, in fact, usurped the owner’s rights – thereby “appropriating” his property in the eyes of the law. And this would justify disapplying Hinks as against my client.

Their Lordships took time for consideration, then ruled that I had won on the advocacy (which is the main thing in a moot), but, perhaps unsurprisingly, not on the law. It was held that “appropriation” is a neutral, objective term;  it simply describes a thing that has happened;  it requires no behaviour as such from the person who is said to have appropriated. Thus, Hinks would not be overruled (even in a moot court), nor would the weight of that case be lifted from the facts of the instant one.

The professor’s conviction for theft would stand.

In my view, having the law against you is great in a moot because it compels an advocate to fight hard for their “client.” But one day soon, when the clients become real, we must take care never to understate the force of judicial precedent in any of the cases we handle.

Eichmann: Thoughts on a Legal Landmark

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The Second Adolf

As an LLM student focusing on human rights issues, and hoping to one day build a practice around human rights law, it surprises me to find that so few of the aspiring criminal lawyers I talk to are familiar with the term:  “universal jurisdiction.”

In a nutshell, universal jurisdiction is a rule of custom which says that, when it comes to certain heinous crimes, any state may choose to prosecute the offender — no matter where the offender is from, no matter who the offender happens to be, and no matter where the crime took place. This international rule came about because of pirates robbing ships at sea. It was clear that all states would need to act together in order to bring pirates to justice. Today, however, universal jurisdiction has been extended to cover genocide, torture and other crimes against humanity.

Cases in recent times have seen General Pinochet arrested in London over torture committed in Chile, and ex-President Montt indicted in Spain over genocide in Guatemala. In 2011, George W. Bush even cancelled a trip to Switzerland over concerns that, once on Swiss soil, he could be arrested for authorising torture.

An important case which helped to extend universal jurisdiction from piracy to crimes against humanity is the trial of Nazi war criminal, Adolf Eichmann. This coming April will mark 53 years since the trial in Israel of “the second Adolf” who was responsible for putting Hitler’s “Final Solution” into effect. Eichmann’s trial began on 11th April 1961. He was found guilty of crimes against the Jewish people and executed the following year, after his appeal had failed.

Having achieved a good mark recently for an essay about this case, I thought that I would share some of my thoughts with readers.

Eichmann’s case is interesting because the State of Israel did not exist at the time of the Holocaust. We can therefore see universal jurisdiction being exercised in Asia to bring a European criminal to justice, and years after his dreadful crimes were committed. However, in my opinion, the Eichmann case has flaws;  he should have been tried by an ad hoc tribunal, or by some other state than Israel.

Traditional rules of natural justice demand that cases be decided without bias, actual or apparent. However much Eichmann deserved to be punished, there was a real possibility of bias favouring conviction in this case. Eichmann’s mission had been to exterminate the Jewish people, and yet, he was tried by Jewish judges in the self-proclaimed “State of the Jews.” Moreover, under Israeli law, the crime of genocide (which Eichmann had committed) was technically termed a “Crime Against The Jewish People.”

All of this might suggest that Eichmann’s case cannot be likened to the indiscriminate trial of some random pirate — as the Israeli judges argued it could.

The Court also remarked that a threat to Jews anywhere is a threat to the State of Israel, but there was no precedent to support such a broad assertion. Indeed, the Court appeared to be reinforcing its ‘universal’ claim to Eichmann, and masking its apparent bias, by compounding universal jurisdiction with protective jurisdiction — that is, the right of every state to protect its national interests against foreign criminal activity. Such prosecutions are typically brought for acts of treason, or the counterfeiting of passports and currency (etc), but not to protect a worldwide group from genocide.

That having been said, Eichmann’s case makes for powerful reading. Its reasoning may have been flawed, but without a doubt, the right man was brought to justice.

To read the full transcript of Eichmann’s trial and appeal, click here.

Movie Therapy for Law Students!

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It’s Sunday! It’s a day of rest (even for us law students), so thought I’d write something a little less dry and a little more fun.

Whilst browsing on Amazon recently, I came across a book entitled Movie Therapy for Law Students by Sonia Buck — which, apparently, helps you to prepare for law exams… by watching classic drama!

Sounds good, and I was tempted to buy, except that two things occurred to me. Firstly, the book is aimed at American students. Secondly, it’s obviously too good to be true! Not to mention, if my legal buddies spotted such a get-rich-quick title on my shelf, slouching idly between the likes of Michael Mansfield and Clive Stafford-Smith, then my reputation for due diligence could be over before my career begins.

However, I also thought:  What a splendid idea for a Sunday blog post!

Therefore, I have adapted Miss Buck’s idea to present a selection of ‘smart’ movies for the aspiring British lawyer. In nerdy fashion, I have placed recommendations under related subjects from your law degree — so you know what kind of mindset to bring to each movie. I have decided not to recommend movies on criminal law as there are literally thousands to pick from, and the subject matter is so engrossing that students are likely to switch-off and enjoy the story rather than try to think critically about the legal bits.

If this list had to include just one ‘criminal’ title, let it be Twelve Angry Men (1957), so you can see how a trial jury reaches a verdict as to guilt or innocence.

 

* Legal Disclaimer:

Watching movies about the law will not turn you into a lawyer. But it’s better for your future career than vegetating in front of Emmerdale!

 

CONTRACT LAW —

The Paper Chase (1973).

A young student, played by Timothy Bottoms, gets into America’s prestigious Harvard Law School, but soon finds himself struggling with his class on contracts. This story is good for two reasons. Firstly, because it involves a lot of discussion in class about contract law. Secondly, because the points of law being discussed are mostly taken from English cases (American contract law is founded upon English contract law, which goes back centuries). Not to mention, watching this movie will introduce you to an important contract case that you will undoubtedly need to learn… Carlill v Carbolic Smoke Ball Company!

 

My Cousin Vinny (1992).

This is a terrific comedy starring Joe Pesci as a hapless lawyer called-in to represent his cousin who stands accused of murder. However, I’m recommending it for another reason. Throughout the story, Pesci is confronted by a local thug who wishes to fight him. Pesci promises to fight the thug in return for the $200 which he owes to Pesci’s girlfriend. But the dialogue between these two characters is “on the money” from a contract law perspective. Pay close attention whilst Pesci schools the thug on the difference between an offer and a counter-offer! For me, watching this sequence made remembering the rules of contract formation easier.

 

TORT LAW —

The Verdict (1982).

A drunken lawyer, played by Paul Newman, turns down a settlement offer and decides to fight for his client, a young girl whose life was destroyed by the negligence of a hospital that treated her. The lawyer must prove that his client was given the wrong type of anaesthetic during surgery. Things take a terrible turn, though, when his expert witness goes missing on the eve of the trial. Hence, proving negligence will take everything this lawyer has got. But has he got enough left?

 

Philadelphia (1993).

Tom Hanks portrays a brilliant lawyer who suddenly finds himself sacked when colleagues discover his secret — that he is living with AIDS. Whilst this story is not based strictly on tort, it serves as a good reminder that all civil cases are about getting justice as well as money.

 

CONSTITUTIONAL LAW (human rights) —

Strip Search (2004).

Starring Glenn Close as a ruthless interrogator, this movie begins with the question:  If giving-up all of your rights would end terrorism forever, would you do it?

 

In The Name Of The Father (1994).

The true story of the ‘Guildford Four’ who were accused of bombing a pub, and wrongly convicted as IRA terrorists. Daniel Day-Lewis is exceptional as Gerry Conlon, the young man from Belfast who was tortured into signing a false confession at a British police station. I think this movie is relevant because these events occurred after the UK had signed the European Convention on Human Rights, but before Labour had passed the Human Rights Act. Hence, it proves that just being signed-up to international conventions will not ensure that our rights are protected. Indeed, we should all think carefully before saying we want the Human Rights Act to be scrapped.

 

… And that’s all for now as my Sunday roast awaits!

Unfortunately, try as I might, I cannot think of any movies to inspire you for land law and trusts. But if anyone knows of delightful titles that could spread a little butter on these dry-as-toast topics, feel free to add a comment for the rest of us.

Happy viewing!

Two Tips to Improve Your Speed-Reading!

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Last night, I attended a lecture at my Law School on how to become a better public speaker. Somehow, the subject of ‘speed reading’ came up. The lecturer asked if anyone had ever sat a course on how to speed-read. No hands were raised. But after the moment had passed, I recalled taking some classes on this a few years ago.

In 2010, whilst undertaking a ‘death row’ internship in Mississippi, I considered the possibility of transferring my education to the United States in order to qualify as a death penalty litigator. I discussed this with the Dean of MC Law, who suggested that I start by having a go at the LSAT — that is, the Law School Admissions Test.

Talk about baptism by fire! Being completely new to standardised verbal reasoning tests, I decided to take some preparation classes to help improve on my practice score. This is how I came to know a little about speed reading.

As far as America goes, I decided not to stray from the path of becoming an English barrister. However, two years on, I applied for a job with the UK Government Legal Service. Part of the selection process required candidates to take an online verbal reasoning test, in which 25 multiple-choice questions had to be answered within 20 minutes — allowing less than a minute per question. This is where my preparation for the LSAT paid off. The speed reading tricks I had picked-up abroad enabled me to pass well, and be invited to interview with 89 other candidates (from around 1000).

So, whilst I do not claim to be a master speed-reader, I do feel able to share a few tips with fellow law students. These tips should be of particular interest to aspiring barristers, who are now required to sit the BCAT (Bar Course Aptitude Test) in order to get into Bar School. The examples I use do not quite mirror the questions you will encounter on the BCAT, although my examples will start you in the right direction for approaching a test of this kind.

Incidentally, I can say, beyond reasonable doubt, that the English BCAT is currently much easier than America’s LSAT. Still, an aspiring barrister, who is unaccustomed to verbal reasoning tests, would be foolish to underestimate the mental challenge that lies ahead — not least because the test costs £150 a pop.

Aside from the BCAT, the following tips will improve your ability to skim-read passages from court judgments and academic texts in general.

 

TIP # 1:  FIND THE CONCLUSION !

If you are presented with a long passage, don’t just try to read the whole thing from start to finish. You will soon run out of time with this approach. Instead, start by asking yourself:  What point is the writer trying to make?

The conclusion is the most important one sentence in the whole of the piece. It is the one sentence that the writer would choose to keep in if every other sentence had to be taken out. And it is the one sentence that the writer would want you to read if nothing else.

But how do you find it?

The most obvious way is to scan the passage with your eyes and try to spot the word ‘conclusion’ somewhere towards the end. You may spot a sentence like this:

“In conclusion, the only way to ensure that human rights are protected is for all countries to enshrine them in a written constitution.”

This sentence would be the most important one in the whole passage. It is what the writer wants you to take away after reading. Every other sentence is simply meant to support this one.

Now you should consider the True/False statement that is presented. If the statement tries to suggest something like:

“The writer does not believe that human rights can be protected by law.”

… then BINGO — you know this cannot be true. The writer’s conclusion is that human rights will be protected if enshrined in a country’s constitution (a type of law). So you would tick ‘False’ and move swiftly to the next question.

If only it were always that simple! A writer’s conclusion may not be so neatly sign-posted by the word ‘conclusion.’

Other words that writers use include:

Therefore.

Thus.

Hence.

And some writers will use a phrase to sign-post their conclusion:

“It follows that…”

“It is arguable that…”

Or the old chestnut:  “In my opinion…”

Any one of these could be used as a substitute for “In conclusion…” in my example above.

Before moving on, there is a final point to be aware of. Some writers prefer to start with their conclusion, then spend the rest of the passage backing this up. Where a passage begins with the conclusion, there will be no word or phrase to sign-post you. The passage will simply start like this:

“The only way to ensure that human rights are protected is for all countries to enshrine them in a written constitution.”

And every sentence that follows will be intended to back this up. You must use your judgment to identify the first sentence as the conclusion.

Ask yourself:  How does the writer know that what he is saying is true?

If it is the sort of sentence that is giving you information, it is likely to be part of the writer’s evidence used to support the overall conclusion he wishes to reach. However, if it is the sort of sentence that seems to be making an argument, it is probably the writer’s opinion (and therefore, his conclusion) which needs to be backed-up with something more.

This brings us to the second useful tip.

 

TIP # 2:  SPOT THE EVIDENCE !

After discovering a writer’s conclusion, you should see if this is enough to answer the True/False question that is presented. Quite often, grasping the gist of a passage (by finding the conclusion) will tell you all you need to know. However, the True/False statement might read something like this:

“Statistics on international abuses of human rights would tend to suggest that compliance is better in countries with some kind of rights legislation in place.”

Here, simply knowing the writer’s conclusion is not enough. You need to find out what he is basing his conclusion on. The most popular word that is used to sign-post a writer’s evidence is ‘because.’

Consider the writer’s conclusion again, but this time, notice the reference to evidence which he is relying on:

“The only way to ensure that human rights are protected is for all countries to enshrine them in a written constitution because statistics have shown for decades that turning human rights into constitutional rights is by far the best policy.”

It is fine to assume (for the sake of a test, at least) that the writer’s evidence is correct. However, consider again the True/False statement that is presented to you:

“Statistics on international abuses of human rights would tend to suggest that compliance is better in countries with some kind of rights legislation in place.”

The answer you should tick is ‘False.’

The writer’s evidence refers specifically to constitutional rights, not some kind of rights legislation in general. If, instead, the True/False statement were to read as:

“Statistics on international abuses of human rights would tend to suggest that compliance is better in countries with constitutional rights in place.”

… then you would be right to tick ‘True.’

Unfortunately, the evidence does not always come directly after the conclusion, and there may be more than one type of evidence that is referred to. Also, evidence does not always follow the word ‘because.’

Other words that writers may use to sign-post their evidence include:

Since.

As.

For.

Or the old chestnuts:

“Due to such-and-such…”

“Owing to so-and-so…”

Any one of these could be used as a substitute for ‘because.’

 

IN CONCLUSION !

If you had chosen to read just one sentence in this post, I would have wanted it to be this:

Start by finding a writer’s conclusion (always), then try to spot the evidence used to support that conclusion.

The UK has no constitution!

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Here’s a little piece I had published in 2009. I’m adding it here so that it may be accessed via Linkedin.

So much passion expressed in so few words! But still, my view remains essentially unchanged. Our most basic rights (call them human, civil, constitutional or democratic) should be guarded by our Supreme Court, not politicians — whose tenure depends on the ability to pacify an often-angry electorate.

 

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Are Barristers Really Needed?

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When Lord Carnwath described me as a “serious advocate” last year (after winning a major mooting competition), it seemed like the right time to start reading great books about advocacy.

I began with The Devil’s Advocate by Iain Morley QC. This excellent guide led me on to The Art of Cross-Examination, a lengthier work by Francis Wellman — American attorney with twenty-five years’ court practice, during which time he claimed to have “examined and cross-examined about fifteen thousand witnesses, drawn from all classes of the community.”

Alas, the pressures of postgraduate study kept me from delving into this title until quite recently. However, on reading Wellman’s introduction, I was struck by his express view (indeed, his desire) that America should be more like England in the way its legal profession is organised. I found it ironic that whilst England has for decades been striving towards a more ‘fused’ profession, akin to the American system, here was an experienced American attorney arguing, in 1905, that his country needed to be following the English example!

I will provide the relevant introductory passage (edited for convenience), followed by a discussion leading to consideration of the proposed cuts to Legal Aid.

Hence, in 1905, Wellman argued:

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“ The conduct of a case in court is a peculiar art for which many lawyers, however learned in the law, are not fitted.

In the United States, we recognise no distinction between barrister and solicitor. We are all barristers and solicitors in turn. However, one has but to frequent the courts to be convinced that, so long as the ten thousand members at the New York County Bar avail themselves of the privilege of appearing in court, the majority of trials will be poorly conducted, with much valuable time wasted. 

One experienced in the trial of causes will not require more than a quarter of the time taken by the most learned [but] inexperienced lawyer. He will not only complete his trial in shorter time, but will be likely to bring about an equitable verdict which may not be appealed — or, if appealed, will be sustained by a higher court, instead of being sent back for re-trial.

It is pleasing to note that some of our leading advocates have expressed their intention to refuse all cases where clients are not already represented by competent attorneys — recognising, at least in their own practice, the English distinction between barrister and solicitor. We are thus beginning to appreciate in this country what the English courts have so long recognised:  that the only way to ensure speedy and intelligently conducted litigation is to inaugurate a custom of confining court practice to a number of trained trial lawyers. ”

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In England, the way things usually work is that a client will first approach a solicitor with their legal problem, and the solicitor will then instruct a barrister at a later stage if specialist advice is needed, or if it looks as though the matter will end-up in court. Barristers are mostly self-employed, whilst solicitors belong to firms.

For my part, it would be disingenuous not to concede my bias favouring separate branches to the profession (barristers and solicitors as opposed to ‘all-round’ attorneys who handle everything). I believe that law graduates pick the barristers’ Bar Professional Training Course over the solicitors’ Legal Practice Course for a reason — namely, because they dream of spending the larger portion of their careers in court, on their feet, persuading judges and juries that their client’s point of view is correct. Indeed, who else, if not one so impassioned, would forgo the relative comfort of a solicitor’s salary in preference to a job which provides no steady income, no paid holidays, no perks and no pension?

But equally, one might ask:  If barristers have it so tough, being paid strictly for the work they do and no more, why do it?

The short answer, I suggest, is that people become barristers for the love of advocacy. As even this student can attest, there is no feeling like persuading a court that your interpretation of the law is correct — or, at least, better than the other side’s. And as a mature student who is no stranger to the repetitive environment of the office, having worked in jobs ranging from customer services to the Civil Service, I have no doubt that my legal career should involve more of the former and less of the latter.

Having put my case for separation, I should now, in a spirit of fairness, address some of the potential flaws in both mine and Wellman’s views.

The 1990 Courts and Legal Services Act made significant reforms to the English Legal System. Details of these reforms can be discovered online, but for present purposes, the Act dismantled some of the traditional distinctions between barristers and solicitors. In particular, solicitors were given the right to undergo additional training in order to become solicitor-advocates, thereby enabling such solicitors to speak on behalf of their clients. However, whilst this reform lifted the barrister’s monopoly on speaking in the higher courts, all solicitors had enjoyed advocacy rights in the lower courts for decades. Therefore, it would be wrong to assume that solicitors are, on the whole, less capable of advocacy than barristers.

Another incorrect assumption is that all barristers work in courts, whilst all solicitors work in offices. As academics Slapper & Kelly have written, solicitors can mostly be thought of as general practitioners, whilst barristers can mostly be thought of as court advocates. However, a barrister specialising in, say, tax law, will seldom (if ever) need to appear in court, whilst a solicitor at a criminal law firm might rack-up hundreds of hours spent defending clients before magistrates. Therefore, it cannot be claimed that all barristers are “experienced in the trial of causes” and thus able to complete trials in shorter time than solicitors — bringing about more “equitable” verdicts in the process.

In sum, a solicitor may be an impassioned advocate who spends long hours in court, whilst a barrister may be a specialist advisor whose whole career is spent in the office. Be that as it may, whether one chooses to become a solicitor or a barrister, I think there can be no doubt that Wellman is absolutely correct in stating:

“There is no shortcut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success.”

… and, speaking as a current national mooting champion, I would venture to add one further requirement of the aspiring advocate:  a desire to excel.

But, reader, this brings us back to a fundamental question:  If one graduates from law with the desire to be a great advocate, why, then, choose to become a solicitor, thus avoiding that branch of the profession which virtually guarantees a life of advocacy?

One might reply that the odds of becoming a solicitor are better. And, to some extent, this is true. There are certainly more training contracts available each year for aspiring solicitors than there are apprenticeships (known as ‘pupillage’) for aspiring barristers. However, it would be quite naïve to assume that a training contract can be won just by sitting a good interview. Competition is still fierce, with many more job applicants than there are jobs.

Moreover, applicants to solicitors’ firms, who are craving a life of advocacy, will first need to demonstrate competence over a broad range of task areas in order to be hired. For barristers, though, courtroom advocacy is deemed to be their most defining trait; hence, applicants to barristers’ chambers are free to channel the bulk of their energy into demonstrating a talent for public speaking. In other words, there is nothing for the aspiring advocate to ‘fake’ if seeking to become a barrister!

In light of the foregoing, it would seem to make sense for any aspiring advocate to pursue the role of a barrister, which emphasises advocacy above all else, as opposed to the role of a solicitor, which merely includes advocacy among a range of activities that must be performed for clients. Indeed, a solicitor-advocate remains, primarily, a solicitor.

To reach a conclusion here, it is surely safe to say that whilst solicitors are competent to undertake advocacy, the greatest advocates are, on the whole, more likely to be found amidst that branch of the profession whose lawyers, overwhelmingly, regard “the trial of causes” as an end in itself, not just one more aspect of a demanding job.

This brings us to the issue of further proposed cuts to the Legal Aid budget.

Those who follow the news will doubtless have seen barristers in England and Wales coming out on strike (essentially) over plans to cut £220 million from Legal Aid. Their frustration is understandable. At the same time as MPs are expecting an 11% pay rise (bringing an MP’s salary to £74,000), the cuts to Legal Aid may well result in the average criminal barrister losing 30% from yearly earnings of £37,000 — bearing in mind that criminal barristers are self-employed, so must deduct tax and professional overheads from this figure, leaving around £23,000 realistically (before proposed cuts).

To put things in perspective, Legal Aid currently costs the taxpayer around £2 billion per year. That may sound like an enormous sum, but in fact, this is the cost of running the NHS for one week (based on 2012/13 figures). Not bad, then, considering this money enables anyone to be represented by a quality advocate in court, all year round, if and when the need arises.

It should also be noted that barristers can now expect to spend around £36,000 in qualifying to practice. Hence, a yearly take-home figure of £23,000 might be deemed much too low in light of the sheer expense, time and effort involved. Remember, too, that it could take several years for a new criminal barrister to build a practice that brings in this figure.

Hence, what is the effect of cutting Legal Aid likely to be?

Quite simply, if criminal law does not pay enough to cover one’s rent and bills, with a little left over to derive some enjoyment from life, then barristers will stop practising criminal law and try to take their skills elsewhere. In fact, this is happening already. One experienced barrister told The Independent that he is currently being forced to turn down criminal briefs offered to him by solicitors:  “I can’t afford it. The fees won’t pay my mortgage.”

The impact of cuts will transform criminal defence into an area of law reserved almost exclusively to solicitors, and prosecutions will suffer too. More criminal solicitors will develop into experienced advocates, granted. But, on the whole, the quality of criminal advocacy will be reduced, for lawyers most eager to take this work will be unable to afford to do it.

In my opinion, barristers are still necessary. For now, though, it seems that you, me, and everyone we know, had better hope we never need a good barrister.

Voluntary Work — My Personal Account

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Originally published in issue 8 of Law Student (Sweet & Maxwell, 2009)

Undertaking voluntary work is a rewarding experience both personally and professionally. In the following article, a part-time law student describes his experience of working in Ghana with the Commonwealth Human Rights Initiative.

After completing my 2008 exams, I flew to Ghana, West Africa, and spent three months working voluntarily as an intern with the Commonwealth Human Rights Initiative (CHRI). I applied for the placement through the website of Projects Abroad, an excellent work experience provider.

Ghana is one of the better-developed African nations. The people are lovely and, for tourists, there is much to see and do. Still, one need only spend a single day there to witness such hardship as extreme poverty, water shortage, frequent power-cuts, lack of assistance for vulnerable groups such as the disabled, etc. And it makes you realise how luxurious European life is by comparison. We take so much for granted.

CHRI is led by a prominent human rights lawyer. As an intern, your role is to assist her with cases and projects that she is involved with. This varies between individual clients and workshops intended to make people aware of their rights. Whilst interns must never provide legal advice, the experience you will receive goes beyond tasks you can expect to be given on a mini-pupillage… no doubt.

For example, two weeks into my placement, a client walked-in off the street and claimed to have been unlawfully detained by a public body. The lawyer delegated me the task of taking his statement, compiling a brief, researching the applicable law and submitting to her an opinion as to whether or not a solid case could be built.

I was also involved in a fact-finding mission, whereby volunteers were sent to a small village to knock on doors and collect statements regarding incidents of politically-motivated violence. The information gathered by us was used to push for a formal police investigation.

Other tasks assigned to interns include report-writing, attending court and conducting research. And you’ll never be asked to make the tea!

One of the major issues facing Ghana right now is freedom of information. There is a strong culture of secrecy whereby officials at every level of society are reluctant to disclose information — for instance, details of how money from the public purse is being used. Undoubtedly, this lack of transparency encourages corruption. But hope is in sight. The Right to Information Bill is a welcome addition to the law, intended to empower citizens to demand the information that can help to improve their lives and living conditions. However, as things stand, the Bill contains some questionable provisions which must be amended if the new law is going to work. I was fortunate to assist CHRI in delivering advocacy workshops pertaining to this matter.

Above all, though, the most precious thing that I gained from my time spent at CHRI was a ground-level insight into human rights, and how these rights affect regular people. Until going to Ghana, I was naïve in thinking that once a country signs a treaty or declares something in its constitution, then that’s the law and the law must be followed. But I was wrong. In reality, signing a document such as the Universal Declaration of Human Rights means nothing unless the subscribing country takes steps at the national level to ensure that human rights are expressed throughout all aspects of the legal system, from pensions to crime. This takes years, and even then, without fearless monitoring by bodies such as CHRI, there is nothing to stop police and officials from simply ignoring the law when it suits them.

Human rights are not just legal rules to be cited in court; they are also political objectives which shape society. Yet, in England at least, it’s amazing the number of people who fail to appreciate their importance. Working in Ghana, I witnessed some awful abuses by public authorities, and as stated, Ghana is one of the better African nations. One can only imagine the horrors in some parts of the world.

Ghana is moving forward with its human rights obligations, but there is still a long way to go. CHRI does an invaluable job and I feel privileged to have contributed during the past three months. The experience has surely improved my prospect of obtaining pupillage, and I’d recommend this placement to anyone.

For further information on volunteering abroad, click here.

And to read more about my time in Ghana, click here.