Sunday, 18 August 2013

Script for introducing a Witness in an English Civil Court

That may seem an odd title for a blog post. It is there because it illustrates an item of information an unversed advocate may be ignorant of. If you Google it, you will not find the answer but you will find litigants in person fruitlessly making similar enquiries on those useless forum sites that Google will insist on on indexing. Since you may be reading this for the script I had better provide it for a civil proceeding before proceeding to my rant on advocacy education

The Witness is called to the stand and the court associate will ask him if he wishes to affirm or swear. If a special holy book may be required for any of your witnesses best to mention this to the associate in advance.
Advocate: Your name is [Joe Smith - these bits in square brackets should match the information you put in that Witness' statement that is in the trial bundle]
Witness: Yes
Advocate:Your address is [ 1 High Street, Midtown]
Witness: Yes
Advocate:Your Job is [Bricklayer]
its not like this in an English court. For info
Witness: Yes
Advocate: You have made a statement in this case on [date] which appears at page [25] of the bundle. Can I ask you to turn to that now. pause Is that your statement?
Witness: Yes
Advocate: Please turn to page [27] is that your signature?
Witness: Yes
Advocate: Are there any corrections or alterations you want to make to that statement
Witness:  No  (If there are make sure you have given the other side details in advance)
Advocate: I submit [Mr Smith] for cross-examination.  sit down

The real reason why Patent Agents do not exercise their rights of audience in the soon to become The Intellectual Property Enterprise Court (it is the Patents County Court until 1 October 2013 when  the Civil Procedure (Amendment No. 7) Rules 2013) and provide access to justice at a proportionate cost is that they are inhibited by ignorance and lack of confidence.

So we have education and training. This is expensive so you want to be certain of its value.

Last month I attended a short lecture on advocacy given by an English barrister from which I learned that in his opinion at the Nuremberg trials, Sir David Maxwell Fyfe QC was more successful in cross-examining Herman Goring than Justice Robert H Jackson. This was because he asked something called closed questions. This lecture did not leave me any more able or confident in my excursions in advocacy. However this month I attended a course run by a trainer (also a qualified lawyer but principally now a teacher so he was not even indirectly looking for my instructions) and learned what the first speaker meant. This is because the second course was run interactively and we had ample opportunity to practice and be critiqued on our performances. We received the necessary signposts to the material that we needed to learn in the CPR. While the first speaker mentioned case theory, the second taught me to use one. The necessity of preparation came across much more effectively than if we simply listened to a speaker telling us that preparation is necessary. We came away understanding how the preparation each of us had invested gave different results. We also saw that some lucky people have more inherent credibility than others, but the rest of us learned how to catch up fast.

The first lecture was recorded so now I can re-listen to it and get about 200% more out of it.

The downside is that the second course cost me the Filemot training budget for this year and next as well as three days. Nevertheless if you get an opportunity to attend a course with Peter Lyons of CPD Training, try it.  Why? Because its excellent value. As well as the training there is an assessment day which ensures you consolidate the work you did on those days. Indeed when you consider the requirement for an eminent assessor and SRA and IPreg endorsement, the cost is proportionate to the overriding objective of education in justice.

1 comment:

Jane Lambert said...

We are holding a course on advocacy before IPO hearing officers which should be suitable for patent and trade mark agent litigators in the new year and any of your colleagues would be most welcome.