‘A trial is not an exercise designed to discover the truth. The rules of evidence are mainly designed to exclude. They often operate to prevent the evidence actually presented from showing the truth of the matter at all … The Judge is not an investigator but more like an umpire … What we are doing as advocates is trying to get the fact finder to arrive at an opinion, an opinion in our favour … our objective at trial is not the ultimate truth but an opinion in our favour…’ (The Golden Rules of Advocacy by Keith Evans).
‘The aim of the advocate is to win at trial within the rules of law, evidence, and professional ethics. ‘The means of winning is by being persuasive… Rightly or wrongly, adversarial advocacy is not really an enquiry into the truth. Perhaps the adversarial system should be about finding out what really happened. But it isn’t. Instead it creates a polite contest. The contest is this: while a judge will seek out the truth as best they can, the advocates use their skill to test the evidence, and to control the way the evidence emerges, and then comment in closing on whether a case has been proved to the necessary standard of proof.’ (The Devil’s Advocate by Ian Morley QC).
‘People often think that establishing objective facts will resolve the dispute… yet in each situation, the key to the dispute is not objective truth but what is going on in the heads of the parties. Objective reality is unlikely either to be the cause of the problem or the source of a solution. Experience suggests that the two most helpful qualities in dealing well with differences are an ability to be persuasive and an ability to revise our own thinking in the light of fresh insights. More data – more facts and figures – merely contribute to our ability to be persuasive or to see a problem in a new way. They are not ends in themselves. To be persuasive, we need to understand how others see the world, their motivations, emotions, and aspirations. To see a problem in a new light, we need to analyze it from perspectives other than our own. In each case, our power depends on our ability to put ourselves in other people’s shoes and to see the world from their point of view. We often handle conflict poorly because we are each prisoners of our own thinking. We tend to judge differences, particularly when we think we know best. Understanding differences is hard work. Frequently we do not know how to go about it…Coping with conflict means coping with the way people think and feel. In any conflict people think and feel differently from one another, and the issue is not whose perceptions are ‘true’ and whose are ‘false’…The better we understand the way people see things, the better we will be able to change them. There is no magic formula for acquiring understanding. It takes a little time and effort.’ (‘Beyond Machiavelli – Tools For Coping With Conflict’, by Roger Fisher, Elizabeth Kopelman, and Andrew Kupfer Schneider).
An effective litigation strategy aims to both win and settle – the key is persuasion. Success depends upon preparation.
From September 2019 I am presenting a new 3 hour course in London, about ‘Litigation Strategies – from case preparation to trial’. The course discusses the principal tools available to a practitioner when designing a bespoke litigation strategy for a civil case:
- Strategic objectives – preparing to win whilst educating/persuading your opponent about litigation risks, with the aim of settlement (5 minutes);
- CPR compliance and sanctions (5 minutes);
- The burden of proof (i.e. what has to be proven and by whom) (5 minutes);
- The standard of proof (and alleging fraud) (3 minutes);
- Presumptions, and rebuttal (5 minutes);
- Facts; investigation & chronology (2 minutes);
- Presumptions, and rebuttal (5 minutes);
- Evidence, admissibility, and weight (including expert evidence) (10 minutes);
- Draft your closing speech to highlight gaps in evidence and proof, i.e. as the blueprint of your strategy (5 minutes);
- Case theory and presentation – Protocol compliance (5 minutes);
- Privilege (5 minutes);
- Disclosure (including PD51U – the new scheme for disclosure in the Business and Property Courts, electronic disclosure, & the application of Norwich Pharmacal principles) (30 minutes);
- Part 18 Requests – Working backwards from cross-examination (10 minutes);
- Litigation Risk Analysis (including the Judge) (5 minutes);
- Commercial Analysis (Assets; Valuations; Claim; and Costs ) (5 minutes);
- Settlement Range (‘BATNA’) (5 minutes);
- Drafting and responding to Part 36 & Calderbank Offers (30 minutes);
- Drafting skeleton arguments (5 minutes);
- Case Management Conference (5 minutes);
- Pre-Trial Review (5 minutes);
- How to design an effective litigation strategy for your case – putting theory into practice (30 minutes); and
- Q&A .
3 hours @ £400 per delegate (limited to 25 places per afternoon) plus VAT (including a 200 page course manual with precedents).
To enquire about the course and book a place please send an email to email@example.com.
For more information please visit https://newsite.carlislam.co.uk/mental-capacity-law-practice