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Prepare for the unexpected

by Simon Heaney
16 October 2015

As part of our series of articles in the autumn written by nominees for the Solicitor Advocate of the Year Award 2015, Simon Heaney draws on his past experiences in court to speak out on why the first rule of advocacy should be to always prepare for the least expected.

I suppose the most basic advice one can give to any advocate, from the beginner to the most senior, would always be that preparation is key.

Preparation covers a whole host of components, from the obvious to the subtle. Of course, you need to know what your client’s case is, and what your opponent’s case is. You need to know the strengths and weaknesses of both sides.

Focusing your preparation

The more subtle aspects of preparation are just as important: for example, learning about your tribunal. Whilst our judiciary will always assess a case and the evidence before it objectively, there is always merit in researching and understanding the approach your tribunal is likely to take, and preparing yourself accordingly.

For example, imagine the judge you are appearing before is notorious for treating the witness statement as evidence in chief. There is little point focusing your preparation here, only for the judge to curtail your planned elaboration. You would do much better ensuring the witness statement was as near to perfection as possible. 

On the other hand, a judge may have a reputation for wanting the advocate to develop the evidence in questioning. In such instances, there can be little worse than seeing an advocate either run out of steam or clearly stumble for questions in an attempt to develop a theme, losing the interest and patience of the judge in the process.

Not knowing the background of a tribunal can also lead to potentially excruciating moments. A few years ago, I remember junior counsel opening up into a rip-roaring submission centred around an analysis of a particular House of Lords authority. Try as I may, it was impossible to alert counsel to the fact that this long-winded guided tour was of a case the judge had appeared in. It was also a case the judge had lost and despite the passage of nearly two decades, the scars were still as raw. It was the one authority to steer well clear of, let alone present to the judge on a silver platter.

A case in point

While preparing for the unexpected is an oxymoron, it’s arguably the most crucial lesson for an advocate to learn. I was reminded of this lesson in a recent family law case I appeared in.

I acted for the father, who was facing a number of allegations that were the subject of a finding of fact hearing. The allegations covered a number of areas, but the most serious related to sexual abuse. It was these allegations that perhaps understandably took the lion’s share of the court’s focus and, indeed, my preparation.

At the conclusion of the hearing, I thought that I had done a good enough job to lead the judge to the inevitable conclusion that, on the evidence, the allegations against my client had not been proved on the balance of probabilities: the test in family law proceedings.

The judge informed the court that a full perfected written judgment would follow, and that she would be making the findings against my client in their entirety.

Such a situation allows no time to massage a bruised ego or engage in self analysis. Immediate attention had to be turned to the next course of action.

The client was distraught and a judgment call had to be made. A quick re-check of the belief in the evidence had to be taken, and I decided to inform the other parties immediately that we would be seeking leave to appeal upon receipt of the perfected judgment.

Some days passed before the written judgment landed. I had to read it five times, because the conclusion had been turned on its head. The judge had now decided the findings would not be made. My client was obviously relieved at this somewhat unusual, but helpful u-turn by the judge.

‘Judiciously, not capriciously’

Criminal practitioners will undoubtedly find it strange at the very least that such a change can even be contemplated, but the Supreme Court in Re L (Children) (Preliminary finding: Power to reverse) [2013] UKSC 8 said, in short, that a judge has the power to do it, as long as they act ‘judicially, not capriciously’. If this happens, it is incumbent upon the judge to say why. In this particular case, it would have been acceptable for the judge to say that she gave an ex tempore judgment in the heat of the court room, but, upon careful reflection in the calm of her chambers, she had evaluated the evidence and changed her view. The explanation for the change was not forthcoming.

It came as no surprise, therefore, that counsel for the mother sought leave to appeal. Within days I had gone from telling the other advocates that we would be seeking leave to appeal, to finding myself on the opposite end of an appeal. My client, of course, sought to preserve the ‘new’ judgment, and so a defence to the appeal was upon us. I knew that my appearance before the Court of Appeal was not going to be a comfortable one.

After the evidence was completed at the retrial, my client again asked me for my prediction. My answer was simple - ‘I have not got a clue’.

About the author - Simon Heaney

Simon is the managing director of Heaney Watson. He heads the children and advocacy team and specialises in complex children cases including abuse, serious injuries and cases involving international jurisdiction issues. He is also a higher courts advocate and regularly appears in the High Court and Court of Appeal.

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