As I write a ‘Case Preparation & Advocacy’ Practice Note for the 2nd edition of the Contentious Probate Handbook, which I am working on over the next 6 weeks, I will put up a series of short extracts from the Practice Note as posts. Today’s post is about one of the most formidable challenges for any advocate in a Contentious Probate Trial – cross-examination of an eminent experts. Note also that in this context, Dr Hugh Series who is a NHS Consultant in old age psychiatry and a member of the Faculty of Law at the University of Oxford, is contributing a separate standalone Practice Note for inclusion in the book as an Appendix about ‘Mental disorders.’ The extract from the Practice Note I am currently drafting is: –
weight to be attached to expert evidence is entirely a matter for the trial
- An advocate who can state the opposing expert’s
case theory, opinions, assumptions, inferences, chain of reasoning, and
conclusions better than the opponent’s expert witness can, is standing on the
mountain top and looking down, for the purposes of:
1.2.1 distinguishing his own expert’s case theory,
opinions, assumptions, inferences, chain of reasoning, and conclusions; and
- conducting a devastating
‘top down’ forensic critique of the opposing expert’s evidence, in order to:
cast doubt; demonstrate falsity; tarnish; ridicule; and comprehensively devalue
the weight to be attached to that evidence.
1.3 ‘Research, as much as technique, lies at the
heart of expert witness cross-examination. Counsel cannot conduct an adequate
cross examination without first thoroughly investigating all of the technical
aspects of the expected testimony. It is often said that you cannot
cross-examine an expert without first becoming an expert yourself. Moreover,
your research should extend beyond the expert’s subject matter area and into
the witness’s own professional background … There is nothing so effective as
impeaching an expert with his own prior assertions.’ (Lubet).
The UK government has decided to sign the Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the 2019 Hague Convention). ‘The Government will move to sign the Convention as soon as possible, as an important signal of its commitment to multilateral Private International Law instruments and to help improve legal certainty for businesses and consumers involved in cross-border litigation. The Convention will enter into force for the UK 12 months after the date it deposits its instrument of ratification.’ (Para 82 Government response to the Hague Convention of July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (Hague 2019) updated 23.11.2023): Google ‘Government response to the Hague Convention of July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (Hague 2019).’
Extract from a Practice Note – ‘Case Preparation & Advocacy’ I have been drafting today for inclusion as an Appendix in the 2nd edition of the Contentious Probate Handbook:
As the late Mr Justice Hunt said, in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’,
‘Don’t [embark] on your case like Christopher Columbus, who on his voyage of discovery, didn’t know:
– where he was going;
– when he arrived, where he was; and
– and after he had been there, where he had been!
Know where you are going, and when you have got there sit down. Set out what you want in paragraph 1 of your skeleton argument, “the Claimant’s case is…” Set out your stall, what you are asking for and want the judge to do. Say to yourself – “what am I doing here? What is my case?” Your opening is the route-map for your case containing the clearest sign-posts to point the judge in the right direction.’ …
2. Case theory
2.1 ‘The case theory is a clear, simple story of “what really happened” from your point of view which puts all the evidence together into a coherent whole. It must be consistent with the undisputed evidence as well as your version of the disputed evidence and the applicable substantive law. It must not only show what happened, but also explain why the people in the story acted the way they did. It should be consistent with the fact finder’s beliefs and attitudes about life and how the world works. It must be a persuasive story that will be the basis of your evidence and arguments throughout the trial.’ (Mauet). You should be able to state this in a single ‘strapline’ sentence.
4. Case preparation
4.1 The case will be proved by the documents and witnesses, not by the advocate. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.
4.2 Once you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then interrogate it. To what extent does the available evidence discharge the burden of proof i.e. prove what you need in order to persuade a Judge (‘J’) to grant the order?
4.3 This will highlight gaps in the evidence.
4.4 Striving to close the gaps is the preparation of your case.
4.5 Sit down and write your opponent’s final speech.
4.6 This will concentrate your focus on weak points you need to address before anybody else does.
4.7 Then perfect your final speech. This is the blueprint for trial. The evidence you need and how you need to present it stares straight at you from this final plan.
5.1 Always try to think like the judge and not the client. …’
My article ‘Commercial Mediation of Music Disputes’ is scheduled for publication both online and in print in the Law Society Gazette on Friday 1st December – see also the ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk. Taxation (Tolley) are also publishing an article I have written about mediating estate disputes which include art and heritage assets, in their special Christmas edition on 14 December. I will post links to the articles on the ‘Publications’ page at www.carlislam.co.uk following publication. I am currently researching cases and material for the 2nd edition of the Contentious Probate Handbook, for publication by the Law Society in 2024, and am on schedule to complete that phase by the end of February. There have been significant changes in litigation practice and in mediation which I will discuss in detail in the book, along with drafting and advocacy in contentious probate hearings and mediation. So you wait for one London Bus and two come along at once! My essay – ‘Mediation of Cultural Property Disputes’, which I wrote and have submitted for the Diploma in Art Law course that I am in the final stages of completing at the Institute of Art & Law in London, is also available to view on the ‘Cultural Property & International Humanitarian Law’ page of my website.
The following is an extract from the introduction to my essay ‘Mediation of Cultural Property Disputes’ on the ‘Cultural Property & International Humanitarian Law’ page at www.carlislam.co.uk:-
Cultural property disputes are multifaceted, legally complex, often involve multiple stakeholders – so, a wide range of interests and underlying dynamics are in play, and can be multi-jurisdictional. ‘The handing back of property to the original possessor or owner is known variously as restitution, return, and repatriation … are treated differently in law, with some covered by private law instruments and others by public law. … [Points] of convergence can be seen where there are no legal means of claiming restitution, either because the passage of time or because there has been no unlawful act. It can also happen that, once outside the state territory, there may be limits to the protection afforded to a disputed item of property under public law, even where international conventions apply, as these are sometimes unenforceable..’ (Cornu, Marie & Marc-Andre Renold ‘New developments in the restitution of cultural property: alternative means of dispute resolution’ , 17 Intnl J. Cultural Prop.1 (2010) pp.1-2).’ The result is limbo. A further legal impediment, is that museum trustees cannot voluntarily dispose of artefacts in a museum’s collection, whatever the merits of a moral/ethical case for repatriation, unless the disposal is lawful. ‘Although the law is not blind to moral claims, trustees and those who control charitable institutions can only satisfy such claims within the framework of the law..’ (‘Ethical Dilemmas For Charities: Museums And The Conscionable Disposal Of Art’ by The Hon. Sir Anthony Mason AC KBE, Art Antiquity And Law, Vol VIII, Issue 1, March 2003, page 3). Mediation can result in a break-through, because it enables ‘parties in dispute’ to become ‘collaborators’ in a process of exploring the existence of terms of a deal, whereby a ‘third-way’ can be jointly-developed, which is sufficient, i.e. ‘enough’ to satisfy their primary needs, resulting in a ‘convergence’ of interests, trust, goodwill, and a mutually acceptable agreement about ‘what is the right thing to do. In this essay, I seek to answer the following questions within the context of non-institutional mediation of a cultural property dispute:
· What is Mediation.
· What are the benefits.
· How does the process work – i.e. what are the key terms of the ‘Mediation Agreement’.
· What are the challenges for a Mediator.
· Where is the deal-making zone (‘DMZ’).
· What is the Mediator’s methodology.’