The following is an extract from the ‘Advocacy’ section of my forthcoming book, the 2nd edition of the ‘Contentious Probate Handbook’, for publication by the Law Society of England & Wales. I finished this note today, and am updating and writing-up the remainder of the chapter on ‘Litigation’ i.e. civil procedure and practice in Contentious Probate claims, over the next six weeks. Note that Family Provision and Proprietary Estoppel are not Contentious Probate claims. In the words of Michael Caine – ‘Not a lot of people know that!’

Extract:

‘The Closing Speech – This is when you join-up the dots. “Closing is when you draw together all of the case, all the answers from the witnesses, all the legal incidents which arose at trial, and you present your theory of the case… Closing is all about persuasion… This means 100% comment. It is not about the facts; it is about comment on the facts. It is not about repeating what the facts were: it is about explaining why the facts as they emerged in trial mean you win.” (Morley [NB I will insert the full citation in the text of the book]). Based upon your portrayal of: (i) the character of T [i.e. of the deceased testator]; (ii) of each P [i.e. each party]; (iii) of T’s relationship with each P; and (iv) of the underlying inter-family dynamics, i.e. the relationship of each P with every other P, including e.g. ‘sibling’ rivalry and the ‘tribal’ loyalties of the other witnesses of fact, does the evidence fit with your case theory? Is there any other credible hypothesis? If you persuade the judge that the answer to the former question is – ‘Yes’, and the answer to the latter question is – ‘No’, then the judge can find that you have discharged the burden of proof by preferring the narrative of your client. If you fail, then your opponent wins. It is as simple as that. Ultimately an advocate is a salesman/saleswoman.’

While researching the Litigation chapter I was shocked and saddened to learn that Blackstone’s Civil Practice has been discontinued. I will nevertheless make references to useful commentary in the 2023 edition – which was the final edition of this legendary tome. Times are changing!

Unconscious/Implicit bias [‘UB’] refers to a set of attitudes and beliefs that Participants, and the Mediator may be unaware of. It has two components:
1.  Attitudes; and
2.  Stereotypes.
Attitudes can be positive, negative, or neutral. Stereotypes are categories that constrain and shape what a person believes about, and expects from, other people. One of the challenges in managing stereotypes is that they are a form of automatic thinking: they spring to mind even if they represent a view that our conscious minds find abhorrent.
In mediating a cultural property dispute UB is linked to fairness. ‘In the pursuit of fairness, the interest-based framework instructs negotiators to answer the question of distribution by relying on objective criteria. According to the interest-based framework, objective criteria-often found in traditions, customs, scientific findings, and market valuations – are deemed legitimate so long as they are created by a third party and are accepted by a sizeable number of people. These criteria are touted as authoritative benchmarks of what is fair. The central promise of interest-based negotiation is that a fair process based on these fair criteria will guarantee a fair distribution which in turn leads to a fair outcome. The problem with this promise is that: in part, it hinges its guarantee of fairness on the presumed fairness of the criteria themselves. It presupposes that so long as criteria are externally crafted and generally accepted, they are objective and therefore fair. However, many types of criteria relied upon by the interest-based framework to ensure objectivity and fairness are themselves animated by norms that are prejudiced and, in fact, unfair. With the twofold recognition that norms can become embedded in ostensibly objective criteria and that said norms can be unjust and unfair, the promise of fairness seemingly collapses. In the wake of this collapse, negotiators must be prepared to (1) assess which unfair norms, explicit or tacit, are shaping the dynamics of the negotiation and (2) consider how the pursuit of fairness dictates that the norms themselves be renegotiated. It is these (often implicit) norm negotiations that are the most difficult, the most unsettling, the most frightening and the most important. These negotiations can have long-term systemic implications for who gets what and why. This can feel, and often is, existential. … A postcolonial negotiation about land distribution between an indigenous group and a former coloniser is as much about land ownership as it is about the white supremacist norms used to justify the initial land theft. … In short, if interest-based negotiation is to realise its promise of fairness, sources of legitimacy must be reimagined.’ [Eckblad, Ariel ‘In Pursuit of Fairness: Renegotiating Embedded Norms and Reimagining Interest-Based Negotiation’, Harvard Negotiation Law Review, Vol 26:1 Fall 2020, 1-29].

La règle d’or de toutes les médiations est que la médiation étant essentiellement une forme de négociation facilitée, le succès (quelle que soit la manière dont chaque participante [‘P’] le mesure) dépend du mouvement et de l’élan, ce qui nécessite un compromis de toutes les parties, c’est-à-dire de la flexibilité, sinon si les P restent dans leurs tranchées positionnelles, la médiation échouera. Cela demande du courage, de la confiance et du réalisme. Par conséquent, à un moment donné (et de préférence dans la première heure de la journée de médiation), l’un des P devra démarrer le moteur de médiation en faisant une offre. L’affaire consistant à conclure un accord peut alors commencer : le jeu est en marche !
En pratique, il n’existe que trois types d’offre d’ouverture qu’un P peut faire :

Une offre ‘inacceptable’, c’est-à-dire une offre qui est si déraisonnablement élevée ou si basse qu’elle sera rejetée par l’autre participant et ne l’amène en aucune façon à modifier son approche du règlement. Au pire c’est
peut entraîner le départ de l’autre participant et
mettre fin prématurément au processus.

Une offre ‘acceptable’, c’est-à-dire une offre si élevée ou si basse que l’autre participant vous mordra la main, ce qui signifie qu’une opportunité d’obtenir une meilleure offre a été perdue.

Une offre ‘intéressante’, c’est-à-dire une offre qui fait vraiment réfléchir l’autre participant. Il est peu probable qu’elle soit acceptée, mais l’objectif est d’inciter l’autre partie à s’engager dans la proposition comme point de départ pour ouvrir une discussion qui pourra ensuite être travaillée pour produire une contre-offre intéressante. la médiation peut progresser vers un règlement final.

Avant qu’un participant puisse faire une ‘offre intéressante’, il doit y avoir une clarté réciproque sur les calculs de médiation de base, basés sur ce qui est revendiqué, c’est-à-dire les droits légaux, la propriété et l’argent, et la valeur commerciale correspondante de chaque élément de la réclamation. Si la volonté de conclure un accord est partagée par les P, le médiateur peut les aider à réduire et éventuellement à combler l’écart. La présentation d’une offre est un question de ‘chronométrage’.
[Avant d’entrer en pratique privée, j’ai travaillé en interne pour Rolls-Royce et Alstom (à Paris), où j’ai structuré la fiscalité, rédigé et négocié des accords dans plusieurs juridictions à travers le monde principalement en Extrême-Orient, notamment en Chine, au Japon, en Corée du Sud, en Malaisie et en Inde].

Music disputes are pregnant with litigation risk because they are multifaceted and legally complex. A case theory may hinge upon persuading a judge, on the facts, that an evolving doctrine of law avails the claimant of a remedy. Equitable remedies are discretionary. Consequently, there may be a high degree of uncertainty about legal merits and chances of success. Spiralling costs in litigation also create a power imbalance between an artist and a record company.

The range of claims is illustrated in a Table under the heading – ‘Deal Making Zone’ on the ‘Commercial Mediation of Music Disputes’ page at www.carlislam.co.uk, and include:
·       Band splits/departure of a member.
·       Breach of confidence.
·       Breach of Contract e.g. of a Booking Agency Contract, Management Contract, Music Publishing Contract, or Recording Contract.
·       Breach of fiduciary duty under a Management Contract – which is linked to claims for equitable compensation, rescission, and contract vitiation on the grounds of Undue Influence and the doctrine of Restraint of Trade.
·       Image rights (also known as ‘personality rights’ or ‘publicity rights’) i.e. an artist’s proprietary rights in their personality, which is linked to branding and endorsement. In England and Wales these rights are not codified. Unauthorised use of a person’s name and image is litigated by claiming for breach of contract; infringement of a Trade Mark; passing off; defamation and malicious falsehood; breach of confidence; breach of advertising rules; or breach of privacy.
·       Infringement of copyright, plagiarism and sampling without consent.
·       Violation of Moral Rights.
·       Passing Off.
·       Royalties – Calculation and deductibles.
·       Share of royalties – Claims by session musicians.
·       Songwriter split disputes.
·       Trade Mark infringement – e.g. the Band’s name, which is linked to ownership of ‘goodwill’ in the name.
Unless either the relationship between the Participants in Mediation [‘P’s’] has irretrievably broken down or the will does not exist to collaborate and ‘do a deal’, then as in the words of the late and great George Michael, commercial Mediation can not only – ‘Heal the pain’, it can also liberate the P’s, by enabling them to work out a creative deal to their mutual advantage. This can be achieved by maximising joint-gains in a way that furthers each P’s individual interests. For all P’s this requires a ‘paradigm shift’, whereby they each decide to apply their talents to a creative endeavour, instead of engaging in litigation – thereby avoiding the costs, risks, stress and publicity of going to war. In Mediation the P’s can also agree a commercial framework for settling a dispute on terms that a court has no power to order.
Google – ‘Commercial mediation of music disputes | Law Gazette.’

A Mediator must not pre-label each Participant’s [P’]s values, as that could result in loss of trust from the start.’ –
Respect for diverse religious, spiritual and cultural beliefs, and attitudes to cultural property – i.e. ‘tolerance’ and ‘respect’, demonstrates humility and modesty regarding one’s own opinions, and shows respect for individuals, cultures, groups and communities. This principle requires participants in Mediation, i.e., the decision-makers, to give consideration to the cultural and historical backgrounds, beliefs and values relevant to all parties concerned. Specifically, it would require a museum to recognize and respect that a community may place a particular cultural value on cultural property that is not shared by others. This may include an ancient ‘spiritual’/’mystical’ belief that a physical object, e.g., a stone, is imbued with ‘energy’ and some form of ‘power’, for which there is no ‘scientific’ evidence.

While ethical principles may provide a Mediator with tools for steering the P‘s toward recognition of common ground, the Mediator must not pre-label each P’s values, as that could result in loss of trust from the start. What the Mediator needs to do through careful questioning, is to get each P to talk about their values, so that in conversation with each other, they can recognise the existence of an overlapping framework of principles which can be used to develop a creative, practical and lawful solution which essentially satisfies their competing interests, ambitions, imperatives, and priorities.

As I wrote in my article ‘Downton revisited – Mediating estate disputes involving art and heritage property’ [published in Taxation (Tolley) 14.12.2023]:
‘ … “The existence of a dispute over ownership raises a practical problem for anyone seeking to sell the artwork. … Unless the owner is able to successfully challenge the ownership claim, potential buyers … may well be put off
buying the artwork.” (Art Law And The Business Of Art by Martin Wilson (2022), Edward Elgar Publishing, page 361). Where an artwork appears to be an estate asset (A) and there is a dispute about the formal or substantive validity of the deceased testator’s (T’s) will, or a claim is made in equity on the grounds of proprietary estoppel, then until the dispute has been resolved, T’s executors/trustees (E/Ts) will not in practice, be able to:
● appoint A to a beneficiary under the terms of T’s will; or
● sell A to realise liquidity, eg to pay inheritance tax or convert it into cash for distribution to beneficiaries under a will/trust. …
[and a] recipient beneficiary will not be able to sell A.
This is a lose/lose outcome all around.
The financial costs of the impasse to the estate are further compounded by the costs of preservation and insurance of A throughout this time, because E/Ts are fiduciaries. …
[However] the existence of art in an estate is a tool whereby a mediator can steer the participants in dispute toward a mutually satisfactory settlement on terms which enable them to re-structure the testamentary disposition of qualifying estate assets so as to ensure the retention and preservation of A for the benefit of the nation by using a tax-incentive scheme, and thereby to expand the size of the estate pie for distribution, resulting in a win/win outcome all round. Thus, by analogy to the famous voiceover slogan for Carlsberg Lager by Orson Welles broadcast in 1983 – mediation ‘reaches the parts that’ litigation ‘cannot’, ie because the court does not have the power to order what the parties can creatively agree to engineer post T’s death. That is why mediation is ‘probably the best’ form of dispute resolution ‘in the world’ for an estate which includes art.’ The article contains a Table of Mediator Tools, including two novel tax-efficient post-death estate re-structuring ideas which occurred to me as I was researching the article.

If you have been reading my recent posts you will know that I am currently writing a section about ‘Trial’ for inclusion in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society, and every week I am posting a short extract. In that section of the book I set out my ‘Golden Rules of Advocacy.’ My 1st Golden Rule is ‘Concise presentation – Keep it short and Sweet!’ –

‘A concise advocate is a demonstrably prepared, organised, clear, confident, and persuasive advocate. Do not use adverbs. In cross-examination questions should be put in less than seven words. At all times think “precision”, “accuracy”, and “impact”. These are all hallmarks of efficient and effective advocacy. Less is more.’

I am currently writing a section about ‘Trial’ in the 2nd Edition of the Contentious Probate Handbook for publication by the Law Society. In that section I recently wrote, 

‘Know the bundles inside out. If you are not on top of the Bundles you are not on top of the case. Make sure that the name of any electronic bundle corresponds with that of a hard copy bundle. Remember that the first few minutes of any hearing are crucial because first impressions count. So if you are wasting valuable daylight labelling a bundle because there is an inconsistency between the electronic and hard copy, you will appear to the judge to be disorganised, in which case you will have planted a seed of doubt in the judge’s mind about the coherence of your client’s case, i.e. its veracity in law on the facts and evidence. In court the Barrister is a General. If a General does not know where his troops are deployed, the conduct of the battle is likely to end in catastrophe because of incompetence. Demonstrating incompetence from the start is not how to make a good first impression. Nor is fumbling around trying to find where a point is dealt with in your papers, or suddenly stopping in mid-sentence, because your papers are out of order. These are hallmarks of lack of preparation. Having to apologise to the court for anything in the first five minutes is not good. Having to do so because you are not on top of your own case is worse.’

The following is an extract form a 15 pages note about ‘Advocacy in Contentious Probate Cases’ that I am currently writing for inclusion in the Litigation chapter of the 2^nd Edition of the Contentious Probate Handbook, which I am writing for publication by the Law Society.

‘A Contentious Probate 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.

‘In Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), later cited in Rainey v Weller & Ors [2021] (a Will forgery claim),Mr Justice Leggatt set out the difficulties of recollection based oral evidence, and the importance of documentary evidence. “An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. … Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”

While an advocate cannot win a case using logic alone, assisting the judge to make findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials, and an essential technique in drafting a Skeleton Argument, and delivering a compelling final speech at trial.

I completed the Diploma in Art Law Course at the Institute of Art & Law in London on 13 December (ial.uk.com). This has been a fascinating three years, and I would like to thank my Tutor Alexander Herman, Director of the Institute of Art & Law and author of, ‘Restitution’ and ‘The Parthenon Marbles Dispute’ (Hart)(2023), and all the teaching staff at IAL’s for their excellent teaching an guidance throughout the journey. I have been commissioned by Trusts & Trustees (Oxford University Press), to contribute an in-depth article during the final quarter of 2024 entitled, ‘Deaccessioning & Repatriation – Duties & Powers of Museum Trustees.’  In the article I will discuss section 331A of the Charities Act 2022 – ‘Limited power for charity trustees to make ex-gratia payments. I will also develop the idea of a ‘trust’/’fiduciary’ custodial solution for restitution requiring a collaborative relationship between national museum trustees in the UK, and national museum trustees in the ‘source‘ i.e. claimant’s country. See the ‘Cultural Property Claims, Museum Deaccessioning & Restitution of Art’ page at www.carlislam.co.uk. In January 2025, i.e. after I have completed writing the 2nd edition of the ‘Contentious Probate Handbook’ for the Law Society in 2024, I am planning to research and write a new book entitled, ‘Islamic Art & Cultural Heritage from Andalucia to Afghanistan – A journey into the past about the present.’ One of the themes of the book, is what we can learn from surviving art and cultural heritage about peaceful co-existence and prosperity, through collaborative engagement in international trade and a constructive exchange of ideas. The roadmap for the book is therefore the ancient trade-routes between East and West in the Golden Age of Islam, which stretched from Granada, Cordoba and Seville, all around the Mediterranean, throughout what is now MENA, and along the Silk Road, passing by the Minaret of Djam in Afghanistan, and beyond into India and China. Meanwhile, may I take this opportunity to wish all readers of my posts this year a very Happy and Peaceful 2024. May your wishes all come true!