Civil submissions involve bundles, skeleton arguments, Civil Procedure Rules, case law, and arguments which need to encompass facts, evidence and legal principles. The advocate has to juggle their White Book, their papers, their skeleton argument and other notes, and bring all these things together in a piece of living, breathing, dynamic, advocacy. That is a big ask. But spare a thought for the judge! Real life judges have many applications to hear in a session, which means they have probably only skim read the skeletons and papers.
This means that they need the guidance of the advocates. And this has to start from the very first words spoken. The introduction is important. It helps the judge ensure they have everything they need to deal with the hearing, it shows the judge you know what you are doing, and it sets up your whole submission to follow.
Too many students neglect the introductory parts of their submission, either because they are in too much of a rush to get to their best points, or because they have not thought about the logical steps the judge needs to be taken through to set up the submission to be performed.
The Applicant goes first, and their introduction needs to cover the following:
Please, do not wish the judge "good morning" or "good afternoon" unless the judge does so first. It can come across as either unprofessional or overly familiar.
You then need to introduce yourself, your opponent and say what you application is for. Because you need to introduce your opponent, you will need to know their family name. Barristers refer to their opponent as "my learned friend". We tend to refer to our opponents as "Mr X" or "Miss Y", rather than use their given names. Things are likely to change now that "Mx" is a title for non-gender conforming people, so do remember to ask your opponent for their title and family name.
Please use "my learned friend" for other members of the Bar, and please, use this for solicitor opponents too. The days of barristers belittling solicitors belong in the past. Besides, if you do a good job, your solicitor opponent might even want to instruct you in the future, so why alienate them? As Lady Hale told the BACFI Students Night on 22nd October "I would recommend anyone thinking of going to the Bar to work in a Solicitor's firm. You will get a tremendous respect for what they do.... Don't think of them [the two legal professions] as being in silos; they are not."
I make the suggestion that you check the judge has all the papers, because if judges start a hearing and realise something is missing, they get rather upset. In fact, they get very cross indeed. I have been burned by cross judges in my professional life. It isn't nice. Remember, the applicant's counsel is essentially setting up the whole hearing. Don't just deal with your own side's papers. You need to be even handed.
A summary of the facts is a useful opportunity to put your application in a context and perhaps to give the judge an steer of what the dispute is all about. Some students think this is not a necessary part of the submission, but that is not your decision to make. Give your summary and let the judge move you on if they feel it isn't needed. It is a skill to be able to boil down a legal dispute into a few sentences of most salient facts.
When dealing with the legal test, you will need to do some legal research at the preparation stage - are the requirements or principles in the rule, the practice direction or the case law? Make sure you know the exact source. Think about principles like the court's discretion and the burden and standard of proof. Please use your White Book and if necessary, use case law authorities. You should also think about taking the judge to the Application Notice and/or the Draft Order. The judge needs to know what you are asking for in precise terms.
A summary of what all the issues the Applicant wishes to raise is helpful as it gives the judge an indication of what they need to turn their mind to and in which order those matters will be raised. Give the judge a list of the Applicant's issues verbally, or list in the skeleton argument and cross refer.
Start your submissions, remembering to cross reference with your skeleton argument from time to time. The judge will be trying to keep up with you, in dealing with the facts, evidence and argument. That means the judge might lose their place in your skeleton argument. Everything you do should be to help the judge understand and follow your submissions.
Think about the arguments your opponent either might make or you know they will make. Try to pre-empt them and neutralise them in your own submissions. That way, when the opponent does make those points, it will be on the back foot.
After the Applicant, comes the Respondent. But that does not mean that the Respondent's representative looks out of the window or checks their email whilst the Applicant's representative is performing. You need to be alert and listening. You want to think about whether there are any arguments raised that you can respond to. Write them down and plan your arguments in rebuttal as your opponent is performing.
Much of the ground work will already be done by the Applicant in setting up the application. So you only need to do a few mandatory things, and the rest is mopping up things which your opponent has not done.
Thanking your learned friend for their submissions is a matter of professional courtesy. Formality, politeness and professionalisms are important values in the legal professions.
When thinking about which facts or legal principles to introduce, ask yourself what the judge needs to know before you get into your arguments. What pieces of background factual or legal knowledge are essential? For example, if your opponent has failed to mention the burden and standard of proof and you feel that the Applicant's evidence is weak and disputed by strong evidence for the Respondent, then it would be helpful to introduce this at the start. It can then be something you highlight in the main submissions when needed.
During your performance, you should try to present some arguments in rebuttal to those raised by your opponent. Don't let the fact you go second allow them to gain an advantage by raising arguments which are not challenged. If you possibly can, try to anticipate their arguments in advance and plan out rebuttals before you get to court (or the advocacy classroom).
Setting up your submissions will help them run smoothly, which will give you confidence and help your advocacy flow. If you need a checklist, make one. But make sure you cover all the introductory and housekeeping matters in this blog post and you will be performing helpful and well structured submissions in your civil advocacy sessions.
Good luck!
The next stage in the process of preparing civil submissions is thinking about the Legal Test. You can find out more about this here: https://snigsclassroom.blogspot.com/2020/11/the-legal-test-in-civil-submissions.html
