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. …’