Ethics How to pass from former BPTC students

Ethics is a feared exam on the BPTC. Being a centrally set assessment, providers cannot anticipate the type of questions to come up. Further, because the exam is in SAQ format, with a fixed marking scheme, the answers given must comply with the marking scheme points.

The former BPTC students, having survived the process were, as ever, ready to share their experience and advice to help you make through this very difficult BPTC assessment. As always, I am unbelievably grateful to my contributors for their insights and willingness to help my current students. The City Law School alumni are awesome people, whose help is very much appreciated by me. Thank you, everyone!

Please make sure you finish reading this blog post right down to the bottom, as my final contribution is a revision plan worth following!

The most common theme is the importance of knowing the core duties, verbatim. This advice came up in several times, with different reasons and techniques being suggested for both remembering them and for exam technique.

Tanzim Ahmed said this: “The 10 core duties are the most important, especially for SAQs. It’s very essential to refer the relevant core duties in every SAQ!”

Eloise Turnnidge echoes that advice, adding some useful revision techniques for students to her helpful advice: “Personally, I wrote out the core duties so many times. If you’re stuck for an answer, you’ll be able to cite at least one (and often two or three) core duties as being applicable. Other than that, the usual revision techniques should stand you in good stead. Flash cards, multiple colours, etc. Writing things out repetitively has always been the best way for me.”

Nicola Augousti made sure she had memory triggers to help her recall, an ingenious tip: “I wrote out all of the duties in 'trigger word' form and memorised them. I summarised the guidance with bullet points. I also studied the answers to mock papers because it helped me to structure my answers.”

Careful focus on the core duties has paid off for former student Brendon La Touche: “My approach was to memorize all the core rules under the major headings and apply a 'machine gun' approach in the exam. i.e. I put down all the answers I deemed applicable to the issue as ethics rules are dynamic and can be transferable to other issues. worked for me. got a VC.”

Deepti Bismohun adds that understanding the prioritisation of the duties is vital: “I think one should absolutely learn to identify the "red flags" i.e. know the fundamental duties that you cannot breach and which ones take precedence over the other in case of conflicting duties. Well, it worked for me!”

Lauren Le Franc advocated making use of "dead time", particularly when travelling, along with use of the full text of the Professional Ethics: “Read the additional guidance. Learn all the core duties and rules and apply to the question. Download the app, this helped me revise on the tube.”

Hesh Kumar (in his first contribution to this post) says: “I don’t know how the new exams work, but I found knowing the core duties inside and out can get you through any ethical situation. The most reassuring thing I found about ethics was, once you know and understand the core duties, your instincts are usually pretty spot on, and it’s just a matter of showing your thinking as you go through.”

Learn your core duties so that you have an idea for the kind of issues you need to have a sensitivity for. Then look carefully at the facts in your scenario, and trust your instincts that the ethical concerns you have are going to be the right ones. The idea of “showing your thinking” is a powerful one, make sure your answers achieve this aim.

Clearly, identifying which part of the factual scenario causes the ethical issues to be engaged is part of the thinking process.

Charlie Merrett puts it like this: “You really do get marks for repeating the relevant facts in the questions. Between identifying the core duties that are engaged and the aforementioned facts, you'll already be scoring a surprising amount of marks.”

Make sure you have shown which facts relate to which factual dilemmas, so the examiner knows you have worked out what is relevant, what is not and how they relate to the principles of ethics.

Kevin Lim brings these ideas together with his advice: “I found format to be very relevant. The style taught at City is simple, but it allows the examiner to see that the student understands what is the issue, which rule is engaged, and what is the appropriate course of action. It must be understood what an answer needs all 3 of these points in order to score the marks.

In order to communicate this to the examiner, students must: firstly, know what the rules are, and to that end memorisation of all the rules is important. I read the textbook front to back 2 times in order the get a firm understanding of the rules (not all at once, of course; over the span of 2-3 weeks), but different people have different opinions on this. Students must also take into account what stage they are at in the question (e.g, is this during trial, before trial, outside of court, etc.) and as such need to have a working understanding of civil and criminal procedure.

Lastly, an issue may have several rules engaged simultaneously (e.g, the common question about a client lying will involve rules regarding honesty, confidentiality, civil procedure, process of stepping down etc.). Repeating relevant facts in answers is completely normal.”

Hesh Kumar reminds students that there is no “quick fix”, spending time on the reading and studying is essential. He says: “There is absolutely no substitute for reading the BSB handbook. The textbooks etc will help, but you MUST go through the relevant parts of the handbook. It would be like doing Civil Litigation without touching the White Book or Criminal litigation without an Archbold or Blackstones! Whether you use the app or a paper based approach is definitely about personal preference. I am a big advocate of paper, something about flicking through it, knowing how many pages between each rule, writing on it, but many, many people tell me they prefer electronically. The important thing is to find what works for you.”

Another theme which featured strongly in my former students’ contributions is the importance of practicing questions, trying to do as many SAQ practice questions as possible and regular self-testing.

Kita L. Deveaux says: “SAQ mocks are essential for getting a good feel of the types of questions. Complete the questions in a group setting mark them and the discuss within the group sometimes talking with your peers will help you look at a question in a way that wouldn't have normally. The mark scheme for pass questions will also show what the examiners look for.”

I would endorse Kita’s advice about working with fellow students. Well disciplined peer learning is always a great way to learn.

Pal Krisnaveni puts it this way: “My advice will be to practise all the SAQs as often as you can and it is essential that you time yourself while you do the SAQs as time will go really quickly in exams and it is helpful to practise the SAQs under time pressure.”

I have always felt that not enough students take the opportunity to practice as much as possible. Students fear ethics and therefore avoid it, which, whilst understandable, is a bad, bad, idea! Confronting and thereby conquering the subject in the way Pal suggests is, to me, the right way of going about it.

Sammy Campbell draws these points together and echoes Hesh’s “no quick fix” approach: “Go through each chapter of the textbook, make detailed notes on the rules and memorize. Super important to do as many SAQ's as possible to get a feel for what the examiners want.”

A very innovative, but extremely astute tip comes from Shajib Mahmood: “Going through the past disciplinary tribunal findings found on BSB web-site really helped me a lot with my understanding of the subject overall.”

Seeing how the BSB actually apply their own rules is going to help you understand the rules and their purpose. It is like reading a leading judge’s judgement – you see the reasoning and application explained for you.

Ferdousi Kabir Helaly took a pragmatic approach: “I believe that learning the whole book from A to Z is not going to help. In an exam situation, to pick and drop in the answer in only 2 hours is going to be extremely difficult for an average student like me. I have only solved a lot of questions and learnt the duties, guidance and outcomes as I went through them. The exam paper was, as I remember, mostly based on practical difficulties and facts rather in a robotic or theoretical manner.”

I personally would say that not studying the Professional Ethics manual and the Code of Conduct carefully is quite a risk. But it is clear Ferdousi learned the guidance through practice questions and self testing. I would not read this advice as a suggestion to forgo the reading and revision required of you.

Ali Khan was philosophical, theorising about why students feel so threatened by the study of legal ethics: “Aside from all the wisdom above I would also say don’t take it personally. It’s a simple process of doing what you can to get confidence in jumping the hoop. Something about ethics makes a surprising number of students feel like it’s examining their own core values.”

As you become a seasoned practitioner, the values of the code become your own professional values, but to begin with it can be difficult. Before one becomes cynical, it is easy to trust the client too much. Experience teaches you the rules are there to protect you.

Shireen Cotto makes this point: “My advice is become more interested in humanity and moral obligations. I found it a breeze and got a VC with very little revision because it's in line with my own morals. I did it the year it became centrally set too.”

Understanding the consequences of your professional actions for the client and others is vital. Hence I agree with Shireen that understanding and appreciating your moral obligations in society as a lawyer is important. What we do has a profound effect, not just on clients, but on how the rest of society view lawyers and the legal profession.

Olivia Cork provides some novel advice: “Learning the core duties by heart is definitely essential and I would do that right now. However, I found it easier to apply the duties to scenarios that came up in other classes (particularly the criminal lit/evidence seminars). You can usually think around any of the questions set for the seminar work and practice identifying which core duties and rules etc they might engage. It helps to think as you go along with ethics because it’s based around practical examples and the answers are so formulaic in that you have to mention particular words.”

This is fascinating and astute advice; students don’t always realise that their other subjects present ethical issues. I find that students tend to think each subject belongs in a little box, all by itself. Trying to draw together the contexts will give you better oversight and make you a better lawyer in real life.

Laura Hollingbery took a highly effective systematic approach: “From the practice questions available, I compiled a list of every ethical scenario imaginable. I then wrote model bullet point answers with all relevant Core Duties, guidance, etc. and more or less memorised each one. I had to resit Ethics, mainly because I ran out of time in the exam. I managed to pass a second time using this technique...and being more familiar with the Core Duties than my own family.”

Daniel Herbert rounds off this post with his excellent comments on his revision techniques and his exam advice:

- Compile ALL of the practice questions together from all of the seminars, lectures, powerpoints etc. Attempt each one of the questions and then mark them. Read through the answers. Repeat process until you get full marks for each questions.

- If you haven't written full detailed notes out, do so. Once you have your set of detailed notes, keep rewriting them until you have a very basic set of notes. I found that writing things down on paper helped me recall the information easier than writing notes on a laptop.

- Use colour coordination in your notes. By using different colours, it was easier for me to recall certain information. For example, on my notes I would use red for core duties (or info you needed to know word for word), blue for information/explaining, green for any cases etc. I replicated this format across all modules so when I looked at my notes, certain parts stuck out. Also, if I wanted to skim read my notes, I could skim read through the red and green. I believe this helped me to recall information better when taking the exams.

- Write up the 10 ethical "commandments" (core duties) on A4 paper, and large enough to see from a distance, and put them up on a wall in your bedroom or a room you spend a lot of time in. Test yourself when you can by trying to recite the core duties in order without looking. Do this until you can recite all of the Core Duties every day for a week without looking at them.

- Write up parts of the syllabus on A4 paper and stick them up around your house. When walking around the house doing day to day things, like cooking, cleaning, having a bath, etc., you can revise without needing to look at a book or a laptop.

- I also distinctly remember going into the ethics exam and the first thing I did when it started was to write down all of the core duties at the back of the booklet. This was just in case I got a memory block during the exam due to the stress and pressure, and could not think of a core duty.

This is a brilliant step by step strategy, which I am very grateful that Daniel was generous enough to share with you all.

Good luck to all of you taking ethics. Thank you so much to all of my wonderful contributors. 

Evidence in chief - tips from former BPTC students

Evidence in chief is the process by which the barrister questions one of his/her own witnesses. The questioning is designed to help the witness tell the story of the relevant events, in a structured, logical way, bringing out detail when necessary. It is primarily used in criminal cases where all of the evidence is oral. In most civil cases, witness statements stand as the evidence in chief and there is only supplementary questioning. 

On the surface, it appears a simple task. However, it is a deceptively difficult skill to perform well. The evidence should come from the witness, which is why the advocate should not ask leading questions on disputed issues. The barrister needs to carry out case analysis and detailed planning of the evidence in chief beforehand. During the evidence in chief the barrister not only has to ask the questions, but carefully listen to the answers, control the witness and ensure that all the relevant evidence comes before the court, deftly avoiding anything inadmissible. 

You can read all about the theory of evidence in chief in the Advocacy manual (definitely worth reading), but what about the realities as a BPTC student? I asked my former BPTC students if they could help. 

Preparation – legal knowledge and research, case preparation and planning

Farooq Sher gave astute advice on the best starting point for any endeavour as a barrister; a full knowledge of the law.

“Know when not to lead! Know your rules of court, know your civil evidence act, enhance the positive elements of your case through the evidence of your witness. Breathe. Take your time. Speak clearly and follow a logical format.

Elicit the objective and subjective evidence according to the legal tests. Don't forget the burdens and standards of proof in a civil case.”

As set out above, you should not ask leading questions on disputed matters, so making lists of disputed matters as part of your preparation will help you. Knowledge of procedure and rules of evidence might not immediately seem relevant, but you must know what you can and cannot adduce and what the court requires.

Elizabeth Salmon emphasised the need for meticulous preparation. Knowledge of the case as a whole was paramount to her: 

“Snigdha, my advice would be prepare, prepare, prepare. Know what evidence you need your client to give in order to make your case and ask questions that will allow for that information to flow.”

The importance of background knowledge and thorough preparation cannot be overstated - too many students think all that is required of them is to ask questions based on the witness' statement, with no greater awareness of the legal framework or the law of evidence. 

Practical advice on how to prepare came from Prashant Sabharwal:

“Know your brief, read it several times and mark down any detail. Then, prepare the broad outlines of questioning your witness. Understand that your witness is human. If necessary, drill down the details through several targeted questions in quick succession. Most importantly, make your witness comfortable and willing to trust you.”

Preparation of an effective kind is key, and I wholly endorse Prashant’s approach. The elements of the offence, the events, the descriptions, the placing of people in the situation - the advocate must be on top of it all. Another highly significant element of Prashant’s advice is the need to “drill down” on details. The possible need for asking many questions to elicit a single piece of information is something many students do not appreciate. Students often wrongly think that if they ask "What did he look like?" they will get everything - face, clothes, shoes, hair colour.

Whilst full preparation is important, the plan you put together must be a flexible one. Something which is too rigid will not work when dealing with a witness. Witnesses are people, so you can expect a degree of unpredictability.

Mark Joseph warns about having too rigid a plan, stating:

“My view is 'don't over prepare it'! Focus on the facts you're trying to prove rather than listing a volume of questions. Add some natural flair!”

Sharid Sarwardhi has this advice on preparation: 

“My advise is try to memorise the whole chief in your mind and ask questions based on a pattern, which you can form earlier, then just keep on listening to the answers and keep on asking questions. I am not suggesting blindly memorising all the questions for the chief, because you could easily lose your track in the middle of the chief. I am just saying that you should remember your facts in such a way so that when you ask any question you will know what will be your next question after getting the answer from the witness.”

Travis Ritch brings together all of these ideas with his mature reflection based on his own practical experience: 

“Admittedly, I found this difficult on the course. But I think now it was put so early in the [skills] assessments (possibly first) because, however well you prepare (and prepare you must), your meta-skills of case analysis, fact management, and helping the finder of fact to find the facts you need to establish your case in law and win the day, take a leap forwards when you do this assessment. For that reason, those areas are perhaps the starting point. What has my client told me has happened, what am I trying to achieve for my client, what do I need my client to say in order to achieve that for him/her, and then, how do I plan to bring this information out without leading. 

Undisputed facts are particularly helpful, because you can state them yourself and use them to signpost. In practice, cases will range from those where all of the facts seem to be in dispute to those where all of them are undisputed and the judge has to decide a single question of law. The course won't give you either of those extreme scenarios; you will need your witness to establish some or most of the facts but not all of them. So, use the undisputed facts to full advantage, and then plan (but don't fully script) how and when you will ask the witness to say the rest of what you need. As a student, I did not trust my brain to think of the next logical question or to find another way of asking the same question while on my feet if I knew the finder of fact had still not heard from the witness what I needed them to hear. I wish I had now.”

Travis’ perceptive observations and searing honesty should guide you towards being an excellent advocate. His description of the relationship between case analysis and questioning is essential reading for students.

Questioning – avoiding leading

Mark Lafferty had this to say:

“I’ve just seen your request for advice on evidence in chief and the following snippet from a Rudyard Kipling poem sprung to mind. I think it's quite useful in a daft sort of way!

I keep six honest serving-men

(They taught me all I knew);

Their names are What and Why and When

And How and Where and Who.

(Unfortunately, I think the rest of the poem is utterly irrelevant!)”

In response, I would say Mark’s advice is anything but daft. It is enormously helpful. Leading questions are only permissible on undisputed matters. So, learning how to carry out non-leading questioning is very important. Using the open question words set out in Kipling’s poem will help. You will need to practice this over and over again, because normal conversation doesn’t work this way; we nudge each other in conversations, using interruptions, leading questions, and other ways of pushing a story or conversation on.

Hannah Thomas warns against obsessing about leading and non-leading questions, as this can distract you from the point of the exercise:  

“The thing I personally found important to note, is not to overthink it. What you're essentially asking is normal, basic information, and it becomes overcomplicated by people trying to ask non-leading questions. Think of it like a fact-finding exercise- when you're asking anyone information you don't know you ask every question in a non-leading way and I think the pressure of tutors drumming 'non-leading' into your mind makes you forget that it is literally just normal question and answer like you would do with your friends.”

To an extent, you should endeavour to avoid leading, but if searching for non-leading questions is slowing up the witness handling, or the questions are becoming too vague and unspecific, then Hannah’s advice will help you refocus on what is important; the narrative and the facts to be adduced before the court. 

Practice makes perfect

Dana Munnings underlines that skills can only be learned through practice:

“All I can say is practice, practice, practice, and record yourself while doing so. You are your best critic. Play it over and over and see where you can improve. Project your voice, keep eye contact and PRACTICE!“

Practice always makes perfect. Any person who has learned any kind of skill, whether sporting, music, dance, art, craft (etc.), will know the importance of practice to both the building or maintenance of one’s skills level. But thoughtful practice is the most important things to engage in - with review and reflection in between. Watching your performances back and assessing yourself will be hugely valuable.

Prav Chandra has a very simple, achievable tip for all students: 

“Practise with someone who doesn't know anything about Bar studies. That way, you ask questions which are easily understood by the witness without trying to be too legal sounding. At the same time, you get answers that aren't ‘template-like’.”

I have often worried about students practicing with the same people too often. Fellow BPTC students will tend to try to be too helpful. They give far too much information in answer to a question, in a way which is not realistic. Go to court and you will see what I mean. Working with the same people will tend to mean your skill will evolve to suit those people being your witness. As a result, the whole exercise becomes "template sounding”. Once we fall into that template mode, we stop really listening to the answers and determining which facts have and have not been established. Get out of your comfort zone and learn to stretch yourself.

Listen. The importance of paying attention to the witness.

Komal Joshi raised the often ignored point that the witness should be heard, not just by the court, but by the advocate: 

“Don’t over prepare the questions - listen to the witness and let them tell their story. It not only makes it (the evidence) flow better, but also more key evidence can be drawn from them; going from set questions may make you pass over the comments that they make that may be key in the case theory! It also makes it more natural and convincing!”

Komal recognises that follow up questions are often necessary to bring out detail. You cannot hope to use this technique when you are not listening to the witness with great care. 

Small hints, little nuggets of fact can come out, which will need development. But only if you hear them!

Eloise Turnnidge supports Komal’s view with these brief, sharp and incisive points:

“1. Write a list of facts you seek, not questions to ask.

2. Make it conversational. Don’t be a robot.

3. Actually listen to the witness’ response and, if appropriate, adapt your questioning.”

A list of facts is better than a list of questions because you can use your pen to quickly cross out facts you have adduced, giving you an instant reminder of what you have left to adduce. A list of questions is risky, as the temptation is to read the list of questions, without keeping track of the actual evidence adduced by the witness. Adapting of the questioning to pick up the facts which are left on your plan will help you get all of the necessary facts out, allowing the court to decide on the basis of the best possible evidence. 

Be human. Remember the witness is human.

Eloise’s point about being conversational and avoiding being “robotic” set out above is part of a more general point about the need to be professional, yet human and recognising the witness is human too. 

Hesh Kumar takes this point up in his advice: 

“One piece of advice, which helped me a lot in the first few weeks: never forget that in XIC, it’s your witness. You’re on their side and they’re on yours. Be friendly, ease them into it. Students are always keen at the start of advocacy training to get into a witness and do what they’ve seen on minis/on TV/any other experience they may have, but in chief, a smile never hurts.”

Never forget that you only get to examine in chief the witnesses which support your case. Why would you want to give them a hard time? Remembering how stressful it is for a non-lawyer just to be in court, let alone giving evidence and getting grilled! A bit of politeness, kindness and charm is always more likely to get co-operation and helpfulness back. I couldn't agree more.

Jack Horlock reminds us that focussing on questioning technique often happens at the expense of being polite, natural and courteous to the witness. 

“I found it helpful to just think of it as having a chat with a friend about the particular topic. The formalities and other things for the exam etc. are easy to learn and commit to memory. However,  your manner with your witness comes naturally and if it's forced it's obvious!”

Oliver Bee is blunt, direct but astute:

“Just chill, Winston, or whatever your name is. If you sound like a clipped privileged twit barking your commands to the lower orders or a robotic staccato fartgun, that never plays well. Be conversational, you're eliciting a story, a credible narrative for the entertainment of the court.”

As barristers-to-be, you have the advantage of a good education, usually far in excess of that of your clients and witnesses. They are already intimidated by you, and your profession. There’s no need to ensure they know how intelligent and well educated you are. Help them do their job, and they will help you do yours. Oliver explains further “remember that you aren't just asking questions or proving a case, but dealing with another human being is very important. This is a communication based skill.” What we do and say in court has far reaching consequences. We would do well to remember that!

Marshall Harkins has this highly effective tip, which is genius:

“Asking how the witness felt or thought about important moments can be insightful and efficient.”

Advocates often focus on their own performance, forgetting that just watching back a video is only half the story. The witness is the vital other half; a living, breathing, thinking human who can tell you whether they were helped in telling the story by your questions. They can help you identify questions which are vague, unfocussed, unhelpful to ensure you avoid them in future. Sit down with the person you questioned and ask them for feedback. 

Chee Wan Yee brings all of these ideas together with her advice:

“I feel like the most important thing to remember in XIC is that you are dealing with an actual person who may be afraid of being at the stand. The witness' feelings are so important and many students fail to ask questions regarding how the witness felt at the time of the incident. It is also useful to imagine that you are in the scene when the incident occurred so that you have a clearer idea of what is going on. Do not bombard the witness with tough questions and properly read the brief before forming questions because students tend to ask irrelevant questions by thinking that more questions equals more points. Also, it is crucial to prepare the witness for XX!! Better to ask the questions early and let the witness explain themselves than to get caught out later on!”

Tom Jones puts things back into perspective. The star of the show should be the witness, not the advocate. Your time to shine will be in the closing speech of the trial. 

“I received an outstanding in my final assessment for XIC. My strategy was to let the witness do the talking. I think that you should trust your preparation; read the entire bundle carefully (and not just the WS of the person being “chiefed”) and practice asking the questions before hand. There's no shame in memorising your prepared questions so that you can maximise eye contact with the witness on the day.”

Conclusion

Planning is vital; know your law, rules of evidence, the elements of the offence, and all of the papers thoroughly. Plan using a fact led approach and don’t script your questions. 

Avoid leading, but don’t be obsessive. Try to get the story to flow.

Listen to the witness. Watch out for little clues and hints which could be followed up with further questioning. 

Practice frequently, with a wide variety of people. Watch yourself and be self-critical. Get feedback from the witness.

Don’t forget to be courteous. Remember your witness is on your side and is only human.

Finally

Deepti Bismohun has this final word:

“Snigdha. Just tell them to listen to your advice. It works trust me, I am a lawyer!!”