1. I [1] ... (be) a forty-seven year old dentist and live at 15 Gray’s Inn Road, London. I make this statement concerning a road traffic accident I [2] ...
(witness) at the junction between Regent Street and Oxford Street, London, on Fri- day 21 September 2007. At approximately 4.00 p.m. that day I [3] ...
(drive) along Oxford Street towards Oxford Circus. It [4] ... (be) a lovely afternoon and the sun was shining. I [5] ... (come) back from a dental conference at Earl’s Court Exhibition Centre and was [6] ... (head) into the West End of town to buy a birthday present for my wife. I [7] ...
(drive) behind a blue Honda Accord motor car which [8]... (travel) at ap- proximately 30 miles per hour.
2. As I [9] ... (approach) Oxford Circus I [10] ... (can) see that the traffic lights [11] ... (show) green. The aforesaid Honda motor car [12]
... (proceed) through the traffic lights and I [13] ... (begin) to fol- low. I then suddenly [14] ... (catch) sight of another vehicle off to my right, a silver Ford Galaxy. It [15] ... (head) at high speed along Regent Street towards the Honda in front of me. I [16] ... (can) see that the driver of the silver Ford [17] ... (hold) a mobile telephone. He also [18] ...
(appear) to be having an argument with the woman sitting in the front passenger seat of the vehicle. He was clearly not paying attention to his driving or the traffic lights, which were showing red from his direction. The Ford [19] ... (come) straight through the traffic lights into the junction between Oxford Street and Regent Street.
3. The driver of the Ford then [20] ... (brake) hard but his vehicle skidded straight into the driver’s door of the blue Honda. I was able to stop just in time to avoid also being involved in the collision. I have no doubt that the driver of the sil- ver Ford was entirely to blame for the accident.
I believe that the facts stated in this witness statement are true.
Signed Dated
Preparing for trial
The legal profession in England is sometimes described as a ‘two-tier profession’.
That is because there are two categories of lawyers, namely:
■
Solicitors
■
Barristers
Most advocacy in English courts is conducted by barristers, who can be thought of
as specialist court lawyers. Solicitors can also appear in court. More commonly
however a solicitor will fulfil the role of taking instructions from a client and
preparing the case. The solicitor will then instruct a barrister to provide the actual
representation in court on behalf of the client. These instructions are provided in
The following is a template for a brief to counsel on behalf of Nicholas Tiessen in the case of N. Tiessen vM. Gluck and Londinium Delivery Co. Ltd. Complete this brief to counsel, providing relevant details in under 50 words under each heading.
Exercise 3 – brief to counsel
IN THE CENTRAL LONDON COUNTY COURT CASE NO. CL4 34756 BETWEEN:
NICHOLAS TIESSEN Claimant
And
MATTHEW GLUCK 1st Defendant
And
LONDINIUM DELIVERY COMPANY LIMITED 2nd Defendant
BRIEF TO COUNSEL Counsel has herewith:
(1) Particulars of Claim and Defence
(2) Statement of Jason Garfinkle dated 10 December 2007 (3) Various correspondence between the parties’ solicitors
Instructing solicitors act for the Claimant in this matter. Counsel is instructed to appear on behalf of the Claimant at the forthcoming trial, listed for hearing over two days at Central London County Court on 15 and 16 February 2008. This is a personal injury claim relating to a road traffic accident on 21 September 2007.
ACCIDENT DETAILS
The circumstances of the accident are as follows:
writing to the barrister in a document prepared by the instructing solicitor called a
‘brief to counsel’. This is known as ‘briefing counsel’, barristers being referred to in
court as ‘counsel’.
Chapter 9
■Trial
DETAILS OF CLAIMANT’S INJURIES
The details of the Claimant’s injuries are as follows:
EVIDENCE
The following details appear to support and strengthen the Claimant’s case:
The following details are conceivably detrimental to the Claimant’s case:
CONCLUSION
The Claimant has good prospects of success because:
...
Stringwood & Evans Solicitors for the Claimant
Addressing the court
Advocacy also involves certain inter-personal skills, including non-verbal commu- nication (NVC) or ‘body language’. The following is a checklist of principles you should bear in mind in order to become a good and persuasive advocate.
■
Enunciate words clearly and speak with sufficient volume
■
Address the court at an appropriate pace, ensuring that you do not speak too fast or too slowly
■
Modulate the tone and pitch of your voice to maintain the Judge’s interest
■
Use the correct mode of address to the Judge (i.e. ‘Your Honour’ or ‘Your Lord- ship’ etc.)
■
Adopt a suitable posture (for instance do not slouch or put your hands in your pockets)
■
Use appropriately formal language (neither pompous nor too colloquial)
■
Demonstrate courtesy, a professional manner and ensure a smart appearance (do not make personal comments for instance about the opposing advocate!)
■
Avoid distracting mannerisms (such as hand or arm movements)
■
Maintain reasonable eye contact with the Judge (while being aware that in some cultures eye contact is regarded as threatening or disrespectful)
Advocacy practice will develop your advocacy skills, which in turn will increase your confidence in using legal English. Now imagine that you are a barrister who has been instructed to appear in court tomorrow on behalf of the Claimant in a case against a motor car manufacturer. You have received the following brief to counsel from your instructing solicitor. Read this brief to counsel. Then plan and write out several cross-examination questions to put to the defendant’s managing director on behalf of the Claimant. (Remember to make these leading questions.) GOOD PRACTICE TIP: Firstly determine the answers you wish to obtain and then formulate questions which will result in the witness providing the desired answers. Try to keep your questions short.
Exercise 4 – advocacy preparation
IN THE KINGSTON UPON THAMES COUNTY COURT CASE NO. KT4 18932 BETWEEN:
FERNANDO ESTEBAN Claimant
And
Chapter 9
■Trial
BRIEF TO COUNSEL
Counsel is instructed to act on behalf of the Claimant at the forthcoming trial of this ac- tion. The basic details of the case are as follows.
The defendant manufactures a range of expensive handbuilt sportscars, including a model known as the ‘Mephisto’. The Claimant purchased one of these ‘Mephisto’ mod- els six months ago, at a cost of £40,000.
The Claimant was injured on 14 August 2007 whilst driving this newly purchased vehicle. The Claimant sustained serious injuries. In particular a broken wrist, fractured collar bone, broken index finger and concussion. The facts of the accident are as follows.
The Claimant was driving his ‘Mephisto’ car towards Oxford on the M4 motorway at a speed of approximately 70 miles per hour. The car has an automatic gearbox and top gear was engaged. Suddenly the car engaged reverse gear, causing rapid deceleration which resulted in the Claimant’s injuries.
The Claimant therefore contends that his injuries were caused as a direct result of the defendant’s negligence. Also, that the vehicle was not of satisfactory quality, this being an implied term of the Claimant’s purchase contract with the defendant pursuant to section 14(2) of the Sale of Goods Act 1979. Counsel is therefore instructed to argue that the defendant is liable to the Claimant for damages for personal injury and for other fi- nancial losses incurred. The latter amount to £10,000, representing the cost of a replace- ment gearbox (£4,000) and lost earnings of £6,000 (the Claimant being an accountant and having been off work for four weeks).
Instructing solicitors have arranged for a consulting engineer to attend court tomor- row to provide expert evidence confirming that the car suddenly engaged reverse gear.
It is the Claimant’s case that this clearly establishes negligence on the part of the defen- dant, since a car should not suddenly go into reverse gear while travelling at 70 miles per hour!
Indeed instructing solicitors believe that the defendant knew about this fault in the gearboxes it fits to the ‘Mephisto’ models. In particular, there have been several press re- ports of similar accidents having occurred in England and in the United States, whereby the car has suddenly engaged reverse gear. Counsel is therefore asked to raise this mat- ter with the defendant’s managing director in the course of cross-examination.
Counsel should also be aware however that the defendant strongly denies liability, contending that the accident was caused as a direct result of the Claimant’s own negli- gence. The defendant does not dispute that the vehicle went into reverse gear immedi- ately prior to the accident. The defendant alleges however that this was due to the Claimant negligently engaging reverse gear while travelling at speed, thereby in- evitably causing the accident. This is vehemently denied by the Claimant. The afore- mentioned engineer who will be attending court has therefore been asked for his expert opinion regarding this allegation. Unfortunately however the engineer has concluded from examining the gearbox that it is impossible to state with any degree of certainty whether the Claimant changed gear or whether the vehicle ‘slipped’ into reverse gear due to a mechanical fault in the gearbox.
Counsel is instructed to endeavour to persuade the court to find in favour of the Claimant and to award damages for personal injury and the other losses outlined above.
Delaney & Co.
Solicitors for the Claimant
If you are working with others then undertake the ‘Group Exercise’ below. Alternatively, if you are working on your own then undertake the ‘Individual Exercise’ below. Both exercises relate to the case above of Fernando Estebanv Hyperformance Sports-Cars Ltd.
GROUP EXERCISE Task 1
Allocate the following roles between yourselves:
■ Counsel (i.e. barrister) for the Claimant
■ Counsel for the defendant
■ The Claimant
■ The Defendant’s Managing Director Task 2
Role-play the trial of Fernando Esteban v Hyperformance Sports-Cars Limitedby adopting the following procedure:
1. Person playing role of Claimant’s counsel conducts examination in chief of the Claimant.
This should be aimed at setting out the Claimant’s case. Claimant answers counsel’s ques- tions, improvising with further sensible facts as appropriate in addition to using the details provided in the brief to counsel.
2. Person playing role of Defendant’s counsel cross-examines the Claimant, with a view to discrediting the witness and/or his evidence. The cross-examination should also ‘put the Defendant’s case’. (E.g. that the Claimant caused the accident by carelessly engaging re- verse gear himself.)
3. Person playing role of Defendant’s counsel then takes the Defendant’s managing director through his evidence in chief. Person playing role of the managing director answers coun- sel’s questions based on facts provided in the brief to counsel above and by improvising with further facts and information as appropriate.
4. Counsel for Claimant cross-examines the managing director, seeking to repudiate the wit- ness’s evidence and to ‘put the Claimant’s case’ to the witness. (Including for instance that there was a gearbox fault.)
5. Defendant’s counsel makes a short ‘closing speech’, summing up the arguments and ev- idence in support of the Defendant’s case and seeking to dispute the Claimant’s claim.
6. Claimant’s counsel makes a short ‘closing speech’, summing up the arguments and evidence in support of the Claimant’s case and seeking to contradict the Defendant’s version of events.
If there are more people available then you can add further parts to the role-play, i.e. a further person could play the role of the expert witness (the consulting engineer). You should then de- cide which party will call this further witness for examination in chief, counsel for the other party then conducting cross-examination. A further additional person could play the role of the Judge
Exercise 5 – advocacy practice
Try to arrange your group as follows for the role-play:
JUDGE
WITNESS (Claimant/Defendant’s M.D./Engineer CLAIMANT’S COUNSEL DEFENDANT’S COUNSEL
Task 3
Ask one of your colleagues to provide you with feedback on your advocacy performance by completing the following feedback form for you. Alternatively, use this form to provide feed- back to one of the advocates on how you assessed his / her advocacy performance.