Advocacy preparation and conduct

Preparing for court

Whether you’re representing a client in court for the first time or the fiftieth, it’s important that you know how to prepare for a case before proceedings begin.

Your style of advocacy and how you prepare for court is likely to develop over time.

If you’re starting out as a solicitor advocate, you may want to observe other advocates in a range of court settings to find a style that works for you.

This guide outlines some of the basic preparation steps to cover before bringing a case to court.

Understand the other side

You may find it helpful to start by working out what the other side is trying to prove. This can help you understand the case that your client is facing.

Assess the evidence closely, looking for anything that could indicate what your opponent is seeking to prove on behalf of their client.

Pay attention to the key documents. These will differ depending on the type of case. For example, you should look at the:

  • statements of case – civil cases
  • charge sheet and indictment – criminal cases
  • threshold document and composite schedule of allegations – family cases

You may identify weaknesses with your client’s case. Finding these at an early stage can help you plan your case strategy in response.

Analyse the case

Carefully look through the evidence to establish your client’s case. Make sure you understand the essential facts before you try to identify the legal issues.

To work out what you need to achieve, you may find it useful to create documents that gather key pieces of evidence together. This could include a:

  • chronology
  • position statement that establishes what you want and why
  • witness list that identifies the witnesses’ evidence and role in the case
  • schedule for each witness that draws together their evidence and any contradictions

Carry out a case analysis to determine what evidence supports your client’s case and what evidence could be used against them.

Make sure you understand the legal principles that apply to the proceedings. There may be several different issues that need to be addressed individually.

You could find yourself in difficulty when seeking to prove or deny a fact if you have not fully understood the relevant principles. Research the law and choose your authorities carefully. Ask yourself why you should reference each authority.

Skeleton arguments

A skeleton argument is a short overview of the areas of controversy in your case. You must file it with the court and exchange it with the other parties before proceedings begin.

Your skeleton argument should include:

  • a heading that identifies which party the argument is on behalf of
  • an introduction that states your position
  • a list of identified issues
  • the essential facts
  • the text of any key statute and/or the strongest relevant case law
  • your submissions
  • a conclusion that states what you’re asking for

Your skeleton argument should be as concise and focused as possible. Do not overload the court with excessive detail or irrelevant points. If needed, you can cite additional supporting legislation or case law in your oral submissions.

Skeleton arguments are usually required before High Court and County Court judges. It’s unlikely that you’ll need a skeleton argument before district judges, magistrates or registrars.

The length of a skeleton argument may be limited depending on the type of proceedings. Skeleton arguments should be no longer than:

There’s no page limit for civil cases, but you must comply with Civil Procedure Rules: Part 52A Section 5.1.

The court may disallow preparation costs if your skeleton argument does not comply with the relevant procedure rules.

You can use our library’s document delivery service to order copies of precedents and commentary.

Part three of Effective Written Advocacy: A Guide for Practitioners (2nd edition) contains precedents for skeleton openings, submissions and arguments.

You can also find examples of arguments designed for submission to the following courts and tribunals:

  • asylum and immigration: Atkin's Court Forms, Volume 22 (2017 reissue)
  • appeals courts: Atkin's Court Forms, Volume 5(1) (2017 issue) Form 10
  • Employment Appeal Tribunal: Cunningham, Employment Tribunal Claims (4th edition, 2014) precedent 13.10
  • judicial review: Southey, Judicial Review (3rd edition), pages 323 to 327
  • magistrates' court: Atkin's Court Forms, Volume 19(3) (2011 reissue), Environment and Public Health, Form 56

Detailed commentary on skeleton arguments is available in:

  • chapter 12 of Pleadings Without Tears (9th edition)
  • part one of Effective Written Advocacy: A Guide for Practitioners (2nd edition)

Oral submissions

Your oral submissions should establish what your client’s case is and what you aim to achieve.

Although your submissions should be based on your skeleton argument(s), you should not repeat it verbatim. Your skeleton argument should be a foundation on which you build your other submissions.

Be flexible in your approach. Court proceedings rarely follow a set pattern, and you must be able to think on your feet and respond to any changes in fact or law appropriately.

If you rigidly follow your skeleton argument, you may fail to recognise and react to something that harms your client’s case.

You should use the opportunity to find out what issues concern the court and respond appropriately. You may need to address your points in a different order to your skeleton.

Listen carefully to any questions you’re asked before answering and take notes of any new points raised by your opponent or the judge so that you can respond appropriately.

Cross-examination of witnesses

Effective cross-examination can be the difference between success and failure in a trial.

At the beginning of the case, list the key issues the court is being asked to determine. Identifying these will help you when preparing questions for cross-examination.

Your cross-examination should:

  • be well structured – examine the witness’s evidence and make a list of the things that you want to achieve in your cross-examination
  • contain short and clear questions so that the witness and jury understand them
  • hold the jury’s attention – you should try to focus the jury’s collective mind on your client’s case
  • end when you’ve made your point – avoid asking too many questions that would allow the witness to regroup

When cross-examining a witness, do not ask every possible question. Focus on the relevant issues. This helps the judge to prepare their judgment and shows that you’re picking the strongest points in your case.

It may be helpful to explain to your client:

  • what issues the court is being asked to determine
  • the legal points that are being considered
  • why you believe the questions that you’ve prepared will help challenge the relevant evidence and help the court reach a decision

Expert witnesses

An expert witness is anyone with knowledge or experience in a certain field: for example, a psychiatrist or an independent social worker. Their main function is to give their independent expert opinion on a matter to the court.

When cross-examining an expert witness, you must give the expert:

  • the fullest information available on the circumstances of the case
  • a clear brief and set of instructions (if they're a witness that you've arranged)

Standard instruction letters are fine, but specific instructions help to progress the evidence provided.

You should understand the difference between expert specialisms and make sure instructions and questions are both appropriate and concise.

When preparing to cross-examine an expert witness, you should:

  • identify all the calendar dates relevant to the witness – this could help you see if the witness received all the relevant documents and whether there are any gaps in their knowledge of the case
  • research the expert witness and the field in which they’ve trained – do they have the necessary skills and qualifications to fully understand the issues the court is being asked to address?
  • check whether there’s an industry standard framework for the relevant assessment process – has the witness adopted the standard practice within their field?
  • consider how many meetings the expert has had with your client and the quality of those meetings 
  • consider whether adjustments were made for your client – this may have an impact on your client’s ability to engage with the expert
  • determine whether the expert delegated any parts of the assessment process to an assistant or work colleague, and if so, whether this was entirely appropriate
  • ask for the expert’s notes of all meetings and discussions they’ve had with your client and any other relevant party – this will help to confirm whether the factual content is correct
  • consider whether the expert has repeated information having read the court bundle and statements and pleadings within it
  • discuss with your client the section of the report where the expert witness has recorded your client’s discussions during the assessment process – does your client agree with the summary of the discussions recorded in the report?

You must also make sure that the expert is clear about their responsibilities to the court, for example, independence and keeping within their level of expertise.

Closing submissions

Although closing submissions to a judge and a speech to a jury are different in content and tone, there are similarities in preparing for and delivering them.

When preparing your address, make sure that your submission has form and direction.

Many judges require bullet-point written submissions, and bullet points are useful in formulating the form, shape and content of the verbal address.

Keep your submission short and make sure it has impact. Long, waffling repetitions of points you think you’ve successfully achieved in cross-examination can sound self-congratulatory.

The judge or jury will not want to hear the same pieces of evidence all over again. Make sure your theme is clear and illustrated by selected evidential points and case law. Always finish on one of your strongest points.

If you’re a defence solicitor acting in a jury trial, remind the jury that if they’re not completely sure that the prosecution case is right, then they should return a ‘not guilty’ verdict.

In a submission to a judge, a clear reference to an authority that supports your case may make the judge consider the chances that your client will appeal if the decision goes against them.

Your conduct in court

You must comply with the Solicitors Regulation Authority’s statement of standards for solicitor higher court advocates. The standards set out what's expected of you before and during court proceedings.

You must:

  • observe your duties to the court
  • comply with professional courtroom etiquette
  • assist the court with the proper administration of justice
  • understand and comply with the relevant procedure rules

Your duty to the court

You have a dual responsibility to your client and to the court. Sometimes even the most experienced advocate will need advice from colleagues on how to find the right balance when conflicts arise.

The Court of Appeal discussed the duty advocates owe to the court in R v Farooqi [2013] EWCA Crim 1649. The case is relevant for all advocates, whether a barrister or solicitor.

The Court of Appeal recognised that different advocates will conduct their cases in different ways and that there must be a wide margin of discretion about how best to conduct a trial.

However, it disapproved of the “myth” that an advocate is the “client’s mouthpiece” who must conduct the case in line with whatever the client’s instructions are.

The court noted that the administration of justice benefits from mutual respect and the “professionalism of high quality advocates on both sides”.

Courtroom etiquette

It’s important to remember to:

  • be on time
  • dress professionally
  • act with integrity
  • be respectful of the judge, jurors, witnesses and your opponent

Stand and bow to the judge when they come to the bench or leave it. Stand when you address the judge and make sure you use the correct form of address.

You must always comply with the relevant procedure rules:

Contempt of court

If you do not meet the expected standards of conduct, you could compromise your client’s case by committing contempt in the face of the court.

This is misconduct linked to the court, either through location or context. It covers:

  • disturbing proceedings – see Phelps [2009] EWCA Crim 2308; Huggins [2007] EWCA Crim 732
  • improper conduct of a case – for example, Aquarius [1974] 59 Cr App R 165
  • contempt by witnesses – see Apted v Apted [1930] P 246; Daye [1908] 2 KB 333

The burden of proof is to the criminal standard (Dean v Dean [1987] 1 FLR 517 CA).

In criminal law, the primary legislation is the Contempt of Court Act 1981 and part 48 of the Criminal Procedure Rules. Part 48A provides direction for contempt in the face of magistrates.

In civil law, see part 81 of the Civil Procedure Rules (CPR).

In family law, similar provisions are provided in CPR 81 and part 37 of the Family Procedure Rules.

The Court of Protection has rules on contempt proceedings (rules 185–194), with practice direction 21(A), although where these do not cover an issue, the fallback is to CPR 81.9.

The remedy for a minor contempt is often an apology at the time of the offence. More serious breaches can result in criminal proceedings.

Read more about contempt of court

Acknowledgements

We'd like to thank the following for their contributions in writing this piece:

  • Adam Tear QC
  • Amanda Yip
  • Graham Wilkinson
  • Joy Merriam
  • June Venters QC
  • Mike O’Brien
  • Simon Heaney