OPENING SPEECHES – advice for the younger advocate

There is a well known old story of a barrister specializing in fraud cases commenting on the importance of a clear and persuasive opening: if he could get the jury by the end of his Opening, they were his for the rest of the case. Certainly it is a great thrill as an advocate in such cases to see the dawn of recognition on the faces of a jury as they suddenly appreciate the real heart of a fraud case. But the story has a wider value.

The essence of all good advocacy is absolute clarity. Align that to an accurate chronology of the relevant facts and you have the blueprint for a good opening in all proceedings where you, the advocate have to go first and tell the tale. So here is my working document for a good Opening.

1. Prepare an essential chronology as you read the papers. A useful tip is to create a table in Word, dictate into it via Dragon and press the Sort by Date button.

2. Think of a sober, arresting, accurate opening sentence.

3. Then put the essence of your case in no more than two tight paragraphs.

4. Expand your story chronologically. Within ten minutes, introduce your documentary and photographic bundles, where you have them.

5. Remember to have prepared the photographs in an order so that they help to tell part of the story. For example, start with a picture of the outside of a building where a crime has been committed and take the jury inside the house to illustrate the relevant rooms in the approximate order in which the crime has been committed inside. Then leave the house to trace chronologically where the offender is said to have gone. Identify what is relevant in the police station after arrest: a picture of any weapons used and then any marks on the suspect’s body. Make sure you include a photo of the suspect in the police station, ideally in the clothes being worn on arrest.

6. Have a good sketch plan in the documentary bundle of the inside of that house and another of the relevant roads in the area of the crime. That is not necessarily an extract from an OS map.

7. Make sure you outline enough of the Interviews of the Defendant to capture fairly his or her case. It is a bad mistake to underplay or ridicule in advance what a defendant is going to say. It will come back to haunt you. Above all, you will have failed the first rule of a good prosecutor: be firm but fair.

8. Always briefly refer to the burden and standard of proof. Keep subsequent legal observation very brief – eg in self defence. Say no more than is absolutely necessary about the Law. There is authority now limiting your explanations of law in opening.

9. Finish firmly but not over the top.

So much for content. What about presentation and style?

Obviously clarity remains the paramount quality – I assume absolute accuracy in your favour. Well, remember you are telling a story and you need to sound interesting. Turgid over-legalistic language is to be avoided like the plague. Humour is dangerous, but a little self – deprecation may lighten matters occasionally. But in some obvious cases do not even attempt that.

I am accused sometimes of theatricality and it is probably too late to change. But do not discount the power of a word picture that keeps the jury absolutely attentive. That does involve changes of pace, light and shade, proper pauses and an inner desire to hold their attention. An occasional look towards the dock may be just as effective as a trenchant comment. The jury will follow your eyes.

Lastly, as with all good advocacy, be yourself. Juries eventually see through any attempt to make histrionic bricks without straw and prosecutors are not there to pretend otherwise. Good luck!
Nigel Pascoe QC

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Pause for Thought

Thinking beyond the ballot needs cautious language and a keen appreciation that there are some honorable and very disappointed participants. Unity is not an automatic consequence, as a very few bitter tweets have made clear. Best to think of the most realistic tactics at this moment in time. First I want to repeat a suggestion made already for a constructive brainstorming meeting or series of meetings going beyond the leadership of the Circuits and the CBA, but which of course they should organize. The agenda would be – What Now? The whole point is to look forward and promote reform from the precise position we are in at this moment. Ideas can be taken back to formulate a policy around which real unity may emerge.

Then solicitors doing legal aid crime. It has provoked an anguished response from both sides. Here the bar needs to learn a lesson. We cannot oversee the independent structures of our colleagues or paper over all the differences between us. But we CAN and should support in a coherent and effective way the very specific injustices which remain. A classic example is the sum payable for attendance at a police station. We can do that in all the conventional ways open to us in a democratic society, including publicizing specific examples, known to us as practitioners, of immensely important representation by our colleagues at that stage in the process. We can canvass for change. To that extent, the real unity which has been created can continue. But short of fusion, which would not be in the public interest, we must put our own house in order. That is not retrenchment, but common sense. I also believe that the majority of legal aid practitioners will not blame the bar for accepting pragmatically the reasons for voting No. We can work in harmony again, recognising the limits we possess to help each other.

Third. I echo the very responsible words of those voting both ways that we cannot undermine our elected representatives any more. Our Leaders have served us superbly in very difficult and unexpected circumstances. Fourth and frankly just as important, we need a moratorium on personal abuse of The Lord Chancellor. I will admit to having been shocked when very able and senior colleagues and even friends have completely lost their heads in the savagery of their personal abuse. What sort of example is that to young advocates in whom we inculcate the absurdity of personal abuse when you seek to persuade? That can be distinguished entirely from the strongest critical analysis of policy. Last, the opportunity we still have to tackle specific, obvious and undeniable fee injustices. Surely these can be collated and agreed in the very meetings I have suggested above, if not in another way. This profession is not finished and long term may have reinvigorated itself magnificently.
Nigel Pascoe QC

In the Court of Appeal – A beginner’s guide

Who does not know about the Reading factor? You have settled Grounds of Appeal with enthusiasm and a degree of forensic indignation, days after conviction and/or sentence. Your accompanying Advice is a model of clarity. You are now on the train to London en route to the Court of Appeal, CrIm Div. You have re-read all the documents and you have reached Reading. And suddenly things seem a little less clear cut….

Court of Appeal advocacy can be a scary business. There is no point pretending otherwise. The three Judges appear formidable, even remote at first blush. The LJ in the middle has a fearsome reputation and you have never seen any of them before. You know, however, that brevity is essential and that they will be or appear to be completely on top of the papers. Well, one of them will be. All of them will have read the professional and extremely skillful summary that has been prepared.

Take heart and launch with suitable confidence…

‘ My Lords, I propose to argue simply the first two Grounds of my Grounds of Appeal.’

Very wise, Mr Pascoe, the others are beside the point.

As your Lordship pleases.’

Then do exactly that, in language of precision and devoid of the least suspicion of jury advocacy. Expand your grounds in moderate terms and finish cleanly.

My Lords, those are my submissions.’
If they want to hear more, they will tell you.

Confession and avoidance is a useful technique. And be prepared to explain oddities of the trial which may puzzle them. Avoid like the plague unnecessary attacks on the Crown. Phrase your criticism of the Trial Judge in moderate language. But the key rule is clarity at all times. Be sure that you have supplied your list of authorities and if providing photocopies, they must be meticulously copied and enlarged. No black patches.

All this is conduct for the day itself. But the success or otherwise of your heroic enterprise is usually not your performance on the day. It is the skill, detachment and precision of your appeal documents. Good presentation in a readable font is essential. Worthwhile then thinking about each of them.

Advice on Appeal against Sentence.

First in nearly every case you should let the dust settle before you
recommend an appeal. I very rarely tell the client in the cells that I shall be advising an appeal. Instead I tell him or her that I want to look at the very latest cases on the topic and also think carefully about the sentencing remarks. For giving false hope to a depressed defendant is close to a criminal offence. Back in chambers, I will kick the sentence around with colleagues, particularly the more detached ones. I want to get a feel for the level of injustice, if that really is what it was.

Then I will look at sentencing cases or occasionally have the luxury of asking others to do so for me. Of course I went into court with some examples of the existing authorities, but they need to be read again in the lights of the sentencing remarks: they will have been adopted and adapted by the judge to mould the sentence. Remember that no facts are identical and your advice and grounds should look for sentencing trends rather than putting too much weight on reports of what appear to be very similar facts.

Then couch your advice in clear, authoritative and moderate language. Do not let your anger at the sheer stupidity of the sentence, as you perceived it, spill over into the subtext of your advice. There is much to be said for careful understatement when you are,in effect, criticising a monstrous sentence. Let the injustice speak from your language without inflating it.

Your Notice of Appeal should be precision itself. Pare down your numerous potential grounds of appeal to the best six at most. Remember there is authority deploring personal attacks on your opponents and similarly you are firmly discouraged from suggestions of judicial bias, save in the clearest cases. That said, occasionally it will be your duty to attack fearlessly judges who have lost the plot and with it, the concept of a fair trial. But don’t elevate a few crass unfair comments into an unmeritorious ground.

If you then get leave or on refusal, want to chance your arm pro bono, then all the luck in the world. Occasional successes are very stimulating. A recent double top in their Lordships’ Court left me a very happy bunny.

Nigel Pascoe QC