Fundamental Litigation Skills Print E-mail
Written by Philippe Doyle Gray   
Friday, 19 March 2010

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Fundamental

Litigation Skills

 

 

 

17 March 2010

 

 

 

Philippe Doyle Gray

Sam Adair

Barrister

Barrister

 

 

 

 

 

8th Floor Wentworth Chambers

180 Phillip Street

SYDNEY NSW 2000

 

Telephone 9232 7967

 

www.PhilippeDoyleGray.com
Table of Contents

 

About the Authors................................................................................................................................................ 4

Philippe Doyle Gray........................................................................................................................................ 4

Sam Adair............................................................................................................................................................. 4

Introduction............................................................................................................................................................. 5

Why Litigate?..................................................................................................................................................... 5

Dispute resolution of last resort.......................................................................................................... 6

Stages of Litigation........................................................................................................................................... 6

Appeals............................................................................................................................................................. 7

A brief tour of Courts and Tribunals...................................................................................................... 7

Ethics for Litigators............................................................................................................................................... 9

More-than-advocacy rules........................................................................................................................... 9

Costs..................................................................................................................................................................... 9

Reasonable Prospects of Success........................................................................................................... 10

Alternatives To Litigation................................................................................................................................ 11

Settlement......................................................................................................................................................... 11

Mediation........................................................................................................................................................... 11

Drafting for Litigators....................................................................................................................................... 12

Simple Claims and Defences..................................................................................................................... 12

Additional considerations for Defences.......................................................................................... 13

Notices of Motion......................................................................................................................................... 14

Subpoenas for Production.......................................................................................................................... 15

Orders................................................................................................................................................................ 15

Case Preparation................................................................................................................................................. 16

Service of Process......................................................................................................................................... 17

Adjournments & Amendments................................................................................................................. 18

Dealing with Witnesses.................................................................................................................................... 19

What to talk about.................................................................................................................................. 19

How to talk to someone....................................................................................................................... 20

Interview Strategy..................................................................................................................................... 20

No more than 30 minutes................................................................................................................ 21

Your client’s expectations..................................................................................................................... 21

Fulfilling your client’s expectations............................................................................................... 22

Read documents beforehand............................................................................................................... 23

Speaking in someone’s own language............................................................................................... 24

Drafting affidavits and statements.......................................................................................................... 24

Rules of thumb for drafting affidavits and statements............................................................... 25

Speech in affidavits............................................................................................................................... 25

The final draft......................................................................................................................................... 27

Swearing affidavits: I say on oath/affirm........................................................................................... 27

Witnesses at Court...................................................................................................................................... 29

Get your witness to Court................................................................................................................... 29

Prepare your witness to give evidence........................................................................................... 29

Managing Documents........................................................................................................................................ 30

Sedley’s Laws of Documents.................................................................................................................... 30

Documents and Barristers......................................................................................................................... 31

Documents and affidavits........................................................................................................................... 31

A few pages of documents.................................................................................................................... 31

A document bundle.................................................................................................................................. 32

Working with Counsel...................................................................................................................................... 32

Why work with counsel?............................................................................................................................ 32

Obtaining advice from counsel................................................................................................................ 34

Retaining and Briefing counsel.................................................................................................................. 34

Instructing counsel........................................................................................................................................ 37

Advocacy Basics................................................................................................................................................... 38

What is advocacy?......................................................................................................................................... 38

Applications of advocacy: opening, examining and closing........................................................... 38

Public speaking techniques......................................................................................................................... 39

Interlocutory appearances......................................................................................................................... 39

Strategy & tactics.......................................................................................................................................... 41

Where to from here?........................................................................................................................................ 41

Cultivate a mentor........................................................................................................................................ 41

Establish rapport with a junior barrister............................................................................................. 41

Join NSW Young Lawyers......................................................................................................................... 42

 


About the Authors

Philippe Doyle Gray

Philippe initially set upon a career in medicine, until realising that this involved working with sick people. Lacking compassion, which made him unsuited for medicine, he concluded that this trait, in combination with a natural talent for pedantry, had the potential for a successful legal career.

He commenced a course of undergraduate study in theoretical chemistry and law, in which he performed with spectacular mediocrity. He managed to win what was at that time the largest legal scholarship awarded to undergraduates at Sydney University Law School, by good fortune at an orientation week lucky dip.

He was admitted as a legal practitioner at the age of 23. Whilst backpacking in Africa, he narrowly avoided being eaten by a hippopotamus, and returned to work as a solicitor working mainly in insurance litigation, for which his encounter with the hippopotamus prepared him well.

In 2001, after over 5 years as solicitor, he concluded that the only long term solution to a receding hair line was to go to the Bar. He practises at 8th Floor Wentworth Chambers, hoping that one day he will stop practising and do it for real.

He has a practice focussing on commercial transactions gone sour, failed building projects, and/or fights over dead people’s money. When not talking in Court, he treats his insomnia with the work of the Costs and Fees Committee.

Sam Adair

Sam studied for a combined arts/law degree at Macquarie University, with a desire to “never have to deal with numbers again.” Sam was admitted as a legal practitioner in 2005 and spent over 3 ½ years as a solicitor, working in law firms specialising in insurance litigation.

As a solicitor, Sam was initially involved in general insurance litigation including property damage, personal injury and home owners’ warranty insurance disputes. Most recently, Sam worked in a national law firm, specialising in construction and engineering disputes and indemnity disputes.

Sam was admitted to the Bar in May 2009 and practises at 8th Floor Wentworth Chambers. Sam has a general civil practice, but spends most of his time involved in commercial litigation, as well as real property, equity and trade practices matters.

Introduction

Why Litigate?

1.      If you were given $20,000 to spend, what would you spend it on? Would you purchase a new car? Would you take a holiday? Would you buy some jewellery?

2.      Would you instead take a risk? Would you purchase some shares in the hope that they rose in value? Would you go to the casino and gamble the money?

3.      Would you sue someone? Probably not. In my experience, almost no one would sue someone if they a choice as to how to spend money.

4.      Why are people more likely to spend their money on jewellery or gambling at a casino, than suing someone? I think the reason is that given a choice, human beings would prefer to spend money on something that gives them pleasure in preference to something that does not. Taking a vacation gives most people pleasure. Purchasing shares or gambling on the roulette wheel also gives some people pleasure, but of a slightly different kind.

5.      Almost no one believes that being a party to litigation will give them pleasure. Therefore, it is reasonable to say that litigation is unpleasant. Why would you ever do it? Like most other things in life that people do that are unpleasant, you do it because you have to.

6.      Why do you have to litigate? Litigation is a solution to a problem.

7.      What is the problem that litigation solves? The problem is an unresolved dispute. You have some sort of dispute with another person, or group of people.

8.      There are many types of disputes that people have regularly, none of which end up in the Courts. You may have a dispute with your spouse about which movie to see, or which in-laws will be invited to Christmas lunch. Disputes of that type are resolved by people themselves.

9.      Sometimes people are unable to resolve disputes themselves. A better way of looking at it, is that sometimes people feel that they cannot resolve disputes themselves. Sometimes the feeling is correct, and sometimes not. For instance, if you suffer an injury at your place of work, develop permanent disability, and seek compensation, then in the contemporary business environment it is highly unlikely that the dispute between you and your employer will be resolved without litigation. Two people may be involved in a commercial dispute, the essence of which is that one person believes that they have paid too much money to a second person, and the second believes that they have not been paid enough. Someone involved in a commercial dispute may feel that they are entitled to receive more or pay less money than they did, but the other people involved in the dispute disagree. Such disputes may be resolved by the Courts.

Dispute resolution of last resort

10.  Litigation is dispute resolution of last resort. This has 2 elements, both of which need to be kept in mind in order to be an effective litigator:

(a)   Whatever you do should be aimed at resolving your client’s dispute.

(b)  Whatever you do, will be to a greater or lesser extent unpleasant for your client.

11.  In civil litigation, the unpleasantness is all about cash flow. The least unpleasant position is a deferral of positive cash flow, i.e. having to wait to receive money to which you are entitled. The most unpleasant example is a permanent, negative cash flow, i.e. walking out of the Courts poorer than you were when you walked into them.

12.  In criminal litigation unpleasantness is a combination of cash flow and liberty. The impact on cash flow is always negative – it simply depends on how much, and when. The impact on liberty is straightforward – either you remain free, or your liberty is curtailed to some degree, the worst being imprisonment. The total amount of unpleasantness in criminal proceedings is a combination of the adverse impact on cash flow and the impact on your client’s liberty.

13.  There are different ways to litigate. Different ways of litigating the same dispute will have different total costs, different impacts on cash flow over time, and in the case of criminal proceedings different impacts on liberty. In order to determine how you litigate, it is important to undertake a cost/benefit analysis as early as possible, and to review the cost benefit analysis periodically throughout litigation.

14.  The goal of a litigation lawyer is to litigate in such a way that maximises the benefit and minimises the cost for his or her client. In civil cases, this is often, but not always ensuring your client has more money in his pocket the last time he sees you compared to the first time he saw you. What is sometimes overlooked is that the experience should not be so unpleasant that, in the client’s mind, the unpleasantness outweighs the financial gain.

15.  In criminal proceedings, often the best result is that which maximises the client’s liberty at the conclusion of the litigation. This is because most people put a very high value on personal liberty. Nevertheless, it is possible, particularly with minor crimes, to spend so much money in litigation that this outweighs the client’s relief at maintaining his liberty.

Stages of Litigation

16.  There are 4 stages of litigation:

(a)   Commencement of proceedings.

(b)  Preparation for hearing.

(c)   Hearing, and.

(d)  Enforcement.

17.  Commencement of proceedings is concerned with taking instructions, deciding the forum of the dispute, giving consideration to the jurisdiction and the parties to the dispute, drafting and serving originating process.

18.  Preparation for hearing includes a multitude of interlocutory appearances and office work, which is divided into 2 main groups:

(a)   Identifying the issues in dispute.

(b)  Marshalling the evidence to prove your case.

19.  Hearing is essentially about the application of forensic advocacy.

20.  Enforcement is about making the law change your client’s circumstances. In civil proceedings, this is usually about your client receiving money. In criminal proceedings, this is usually about your client regaining his or her liberty.

21.  You have to successfully complete each stage of litigation before moving onto the next stage, in order to successfully resolve a dispute by litigation.

Appeals

22.  If a matter is going to be appealed, that decision is generally made after a hearing. In that case, the parties proceed again through Stages 1, 2 and 3, but this time on the appeal. The enforcement stage only arises when all avenues of appeal are exhausted. This is important to bear in mind, because when estimating both legal costs and the time that it will take to resolve the dispute, the possibility of appeal needs to be considered.

23.  This workshop will focus on a few key aspects in the first 3 stages of litigation. The emphasis will be on frequently occurring, important steps that have a significant bearing on the success of litigation.

A brief tour of Courts and Tribunals

24.  Unless you work in a specialised area of law, almost certainly you will be involved in disputes in one of 5 jurisdictions: 3 Courts, and 2 Tribunals. The Courts are the New South Wales State Courts, being the Local, District and Supreme Courts. The 2 Tribunals are the Consumer Trader and Tenancy Tribunal (CTTT) and the Administrative Decisions Tribunal (ADT).

25.  There are of course many other Courts and Tribunals, both specialised and appellate. As this workshop is concerned with fundamental litigation skills, these other jurisdictions will not be addressed. If you find yourself in one of these jurisdictions needing advice, you should consult a more senior practitioner, either a solicitor or barrister.

26.  The Local Court is the preferred forum for all common law disputes between nil and $30,000. It is the appropriate forum for simple common law disputes between $30,000 and $60,000. The jurisdictional limit of the Local Court is $60,000. The Local Court has no jurisdiction in equity (but note the Law and Equity Act 1972).

27.  The District Court is the appropriate forum for complex common law disputes between $30,000 and $60,000, and all common law disputes between $60,000 and $750,000. The District Court’s limit of jurisdiction is $750,000 is subject to a few exceptions. The District Court has limited jurisdiction in equity, but due to the way in which the Court is organised and operates, it is not an appropriate forum to bring disputes that are solely equitable in nature, even if it has jurisdiction. If a dispute is predominantly common law, but has a small component of equity involved, the District Court would be the appropriate forum in which to bring these proceedings, where the amount in dispute is between nil and $750,000.

28.  The Supreme Court is the appropriate venue for common law disputes in excess of $750,000, and all disputes that are principally or solely equitable in nature.

29.  The CTTT and ADT are the principal New South Wales Tribunals. Their names are misleading. Until relatively recently, there were a large number of Tribunals, each of which dealt with specific issues e.g. building disputes, credit disputes, professional discipline, guardianship, mental health, etc. In more recent years, these various Tribunals have been consolidated, and now proceedings which would previously have been conducted before one of these specialised Tribunals will probably be conducted in front of either the CTTT or the ADT. Both Tribunals have gained jurisdiction beyond what their names imply, e.g. the ADT has jurisdiction to deal with commercial leases, which of course have nothing to do with administrative law.

30.  All Courts, and especially those mentioned above, have similar cultures and similar procedures. Once you get the feel of the Local Court, you will find that you are by and large at home in the District or Supreme Court. The same is not true of Tribunals. The different Tribunals have distinctly different cultures, and every Tribunal has its own individual procedure. Courts and Tribunals overlap in jurisdiction. Where this is the case, there is less to learn about proceedings before Courts than before Tribunals. For that reason alone, at least at the beginning of your career, it may be desirable when considering the forum in which to bring proceedings to select a Court over a Tribunal.

 


Ethics for Litigators

31.  In order to get your practicing certificate, you have to pass at least one ethics examination. This workshop is not going to re-hash material that you should already know. There are 3 aspects of ethics that assume particular importance in litigation that are often overlooked by solicitors. Perhaps this is because solicitors are trained and examined to focus upon those rules that are most relevant when solicitors are acting in conjunction with the benefits of counsel, thus sharing the workload both legally and ethically.

More-than-advocacy rules

32.  The Solicitor’s Rules contain a section dealing with practitioners’ duties to the Court (Rules 17-24). Incorporated in that section, are the so-called Advocacy Rules, being Rule 23 and its sub-rules. Rule 23 effectively includes a sub-set of the Barristers’ Rules.

33.  Unfortunately, the Advocacy Rules are not confined to matters of advocacy. Periodically, solicitors will comply with all their duties to the Court except for some of the Advocacy Rules. This is probably not because solicitors are unethical, but because they mistakenly do not refresh their memory of the Advocacy Rules, erroneously believing that these rules are confined to forensic advocacy.

34.  Solicitors involved in litigation ought to carefully consider the Advocacy Rules in contained in Solicitor’s Rule 23. Consider, for instance, Advocacy Rule 15A which states as follows:

A.15A. A practitioner must seek to ensure that work which the practitioner is retained to do in relation to a case is done so as to:

(a) Confine the case to identified issues which are genuinely in dispute:

(b) Have the case ready to be heard as soon as practicable;

(c) Present the identified issues in dispute clearly and succinctly

(d) Limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect the client’s interests which are at stake in the case; and

(e) Occupy as short a time in Court as is reasonably necessary to advance and protect the client’s interests which are at stake in the case.

35.  Whilst this rule does have an application to the work an advocate does at hearing, it actually has a far greater impact on the work a solicitor does in preparing a matter for hearing.

Costs

36.  The second important ethical area in litigation which is frequently overlooked is that relating to costs. The Legal Profession Act 2004 (LPA) mandates that disclosures are to be made in particular forms to clients, and specifies with great particularity the nature and contents of costs agreements. It is essential to be familiar with your professional obligations.

37.  An effective way to minimise the effort on your part in practice, is to draft a Costs Agreement that complies with all aspects of the LPA. This is a simple exercise of going through the relevant part of the LPA, section by section. Many of you will work in practices that already have Costs Agreements. You should take the opportunity of reading through one of these agreements once, and comparing the contents to the LPA, section by section.

38.  Disciplinary complaints about money are common. Generally the time to deal with costs is at the very beginning of a matter. Failing to address costs issues adequately affects the entire course of litigation, not simply from an ethical perspective, but from a financial one as well. For instance, if your client is successful and obtains an order in his or her favour for costs as agreed or assessed, if costs need to be assessed, then a costs assessor should be supplied with costs agreements and invoices that comply with the LPA; a failure to supply those agreements will usually reduce the amount your client recovers on assessment.

Reasonable Prospects of Success

39.  The third important ethical area in litigation is the comparatively recent introduction of s.347 of the LPA. Section 347 is found in Division 10. The purpose of Division 10 is to prohibit lawyers from commencing proceedings which do not have reasonable prosects of success. Under s.347, practitioners are required to certify that proceedings have reasonable prospects of success.

40.  At the time when a solicitor signs the certificate, the solicitor must have considered and formed the view that proceedings have reasonable prospects of success. The difficulty for inexperienced litigators is knowing how to determine whether or not a claim has reasonable prospects of success.

41.  A very useful article on the meaning of the phrase, which suggests what ought to be taken into account and what need not be taken into account is the readable article by Nicholas Beaumont, barrister, entitled What are reasonable prospects of success? published in the Law Society Journal, August 2002 at page 42.

 


Alternatives To Litigation

Settlement

42.  A bird in the hand is worth 2 in the bush.

43.  Almost always, the whole point of litigating is for a Plaintiff to end up with more money in his pocket than he had before he commenced litigation. The sooner a Plaintiff has that money, the better.

44.  One way to control when and how much money a Plaintiff will receive is by settling a matter.

45.  At the very beginning of proceedings, neither the Plaintiff nor the Defendant is burdened by significant legal costs. Not much time has passed. Therefore, the very beginning of litigation is a most opportune time to consider settlement.

46.  Whilst it may be impossible, or at least imprudent, to advise a client on prospects of success at the very early stages of litigation, that does not prevent a reminder being given to parties that the point of litigation is to end up financially better off than they were previously.

47.  For commercial reasons, and not legal reasons, a matter can be settled in the early stages.

48.  Early settlement is particularly important in small disputes. The risk of a settlement being made impossible because costs have escalated is high. It is unlikely that a client will be satisfied with the outcome of a hearing whose sole practical purpose is to determine whether or not a party gets his costs.

49.  There is nothing preventing a Plaintiff from serving originating process at the same time as serving an offer of settlement. That offer of settlement may be in the form of a letter, and not just any letter, but a Calderbank letter. This has the added advantage of encouraging an early settlement, but if none transpires, the Calderbank letter can be relied upon to increase the proportion of costs which a successful Plaintiff will recover, thus enhancing the likelihood that the litigation will be economical.

50.  Service of originating process accompanied by a Calderbank letter enhances the likelihood that a Plaintiff will walk away from litigation satisfied.

Mediation

51.  Mediation is a tool to achieve settlement. It is a tool that all lawyers are obliged to raise with a client. Solicitors’ Advocacy Rule 17A says:

A.17A. A practitioner must inform the client or the instructing practitioner about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the practitioner believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.

52.  Note this is another example of the advocacy rules having little to do with advocacy.

53.  Mediation is not an exercise in testing out the strengths and weaknesses of each party’s case. Do not litigate a matter by correspondence, pointing out the deficiencies in the other party’s case. This will merely give them an opportunity to remedy those defects.

54.  Mediation works best when:

(a)   The parties mediate sooner rather than later.

(b)  The parties know each other personally (e.g. family members).

(c)   The parties agree on many facts.

(d)  The parties appreciate (and not merely understand) the financial, emotional and privacy burdens of litigation; and

(e)  The factors driving the dispute are emotional, at least in part.

55.  Your clients should be doing a lot of the talking at the mediation. An inarticulate client will not do as well in mediation as one with superior communication skills.

 

Drafting for Litigators

Simple Claims and Defences

56.  Number every paragraph.

57.  Be as brief as the case allows.

58.  Start the pleading by identifying the parties, who they were, and what they did, at the relevant time.

59.  Recite the facts in chronological order.

60.  If the timing of an event is important, place a date at the start of the paragraph.

61.  When pleading time, avoid using the words “from”, “until”, “before” and “after.” These terms may lead to confusion as to whether or not a date on the end of the range is included. Instead, use the phrase “On and from” or “On or before”.

62.  Use the trinity: each paragraph is 1 sentence, that is also 1 clause, which expresses 1 idea.

63.  Start a new paragraph if you feel the need to use any of the following:

(a)   And.

(b)  But.

(c)   A full stop.

(d)  A semi-colon.

64.  If in doubt, do not particularise.

65.  Do not set out the precise terms of any document or conversation unless they are material to the case.

66.  End your claim with the following formula: “The Plaintiff claims: Damages, Interest, Costs, and Interest on Costs.”

Additional considerations for Defences

67.  Respond to each claim in the same order as it is made.

68.  Respond to a claim in one of 3 ways:

(a)   If the claim is true, admit it.

(b)  If the claim is false, deny it; and

(c)   If you don’t know if it’s true or false, then “not admit” it.

69.  If you want your responses to several claims to be grouped together in the same paragraph of your Defence, then do this the first way rather than the second way below:

(a)   First way

(1)  The Defendant admits paragraphs 1 and 2.

(2)  The Defendant does not admit paragraph 3.

(3)  The Defendant admits paragraph 4.

(4)  The Defendant does not admit paragraphs 5, 6 and 7.

(5)  The Defendant admits paragraph 8.

(b)  Second way

(1)  The Defendant admits paragraphs 1, 2, 4 and 8.

(2)  The Defendant does not admit paragraphs 3, 5, 6 and 7.

70.  Read through your Defence and count the references to the paragraph numbers of the claim; this way you ensure that you have responded to every paragraph.

71.  End your Defence with the following formula: “The Defendant opposes the relief sought by the Plaintiff.”

Notices of Motion

72.  Describe your party as the Applicant, and refer to any other party relevant to the motion (not the proceedings) as a Respondent.

73.  If a Respondent to a motion is not a party to the proceedings, then include that respondent’s address for service on the face of the Notice of Motion.

74.  Draft the notice as if each paragraph were prefaced with the words “An order that…”.

75.  Each paragraph should refer to:

(a)   A party,

(b)  An action that the party should do,

(c)   A time in which to do it,

(d)  In that order.

For example:

The Plaintiff answer the Defendant’s request for particulars on or before 16 March 2004.

76.  When pleading time, avoid using the words “from”, “until”, “before” and “after.” These terms may lead to confusion as to whether or not a date on the end of the range is included. Instead, use the phrase “On and from” or “On or before”.

77.  End Notices of Motion with the following 2 paragraphs:

(a)   Further or other orders as the Court sees fit (or abbreviated to simply Further or other orders).

(b)  Costs (although costs need not be specifically claimed in a Notice of Motion, it is easier to do so in order to avoid any dispute about whether proper notice of such an application was given).

78.  If you specifically want costs to be costs in the cause, or each party to bear their own costs, and you are very confident that the other parties to the motion/action will consent to the order, then draft that order instead of merely “costs.”

Subpoenas for Production

79.  If the subpoena is going to a natural person, address the subpoena to that person’s title, first and surnames, and their street address for service.

80.  If the subpoena is going to a corporate person, address the subpoena to The Proper Officer at the street address for service.

81.  When drafting the schedule, remember that the subpoena will be read by a non-lawyer! Use simple language, short sentences, and numbered paragraphs.

82.  If you want to be comprehensive, use a thesaurus in choosing words to encompass the documents or things you want subpoenaed, and refer to several synonyms.

83.  To avoid drafting a schedule that is too wide, start by drafting a paragraph in the widest terms, then copy that paragraph and re-draft it in more narrow terms, so that you are left with 2 paragraphs, one of which includes the other. If you are still concerned that the subpoena may be too wide, repeat the process. If you are challenged as to a subpoena’s breadth, you have room to concede the wider paragraphs but retain the narrower paragraphs.

84.  Remember that the purpose of a subpoena is to produce relevant documents. If you don’t know what is relevant then get advice from someone who does before issuing the subpoena.

Orders

85.  Clearly date orders.

86.  Consent orders should be prefaced by the words By Consent clearly appearing at the beginning, and should be signed by all parties.

87.  See the rules for drafting Notices of Motion – most of the rules are applicable to orders as well as motions.

 


Case Preparation

88.  There are 2 principles to follow so that you can prepare proceedings for trial quickly and inexpensively:

(a)   Know what you are doing; and

(b)  Keep it simple.

89.  It is trite to say that you should know what you are doing, but what does this actually mean? In the context of litigating disputes, knowing what you are doing means knowing 3 things:

(a)   Knowing why the matter is before the Court.

(b)  Knowing what your client wants to the Court to do; and

(c)   Knowing the procedures by which the Court can do what you want it to do.

90.  It may seem obvious that the appropriate time to know all these things is at the beginning of litigation, preferably before the filing of originating process. If you do know this before filing originating process, then you have engaged in what is known as “front end litigation”.

91.  Front end litigation is a reference to when preparatory work is done for the resolution of a legal dispute through litigation. The phrase “front end” indicates that this work is done at the beginning (front) of litigation.

92.  Conversely, back end litigation means the preparation for trial is done at the end of proceedings, usually just before trial.

93.  Back end litigation has been the traditional form of preparation, at least in recent history. Front end litigation is a comparatively contemporary phenomenon with a history of about 15 years, commencing with the first pilot differential case management system (a.k.a. DCM) in the Supreme Court, and the once infamous Practice Note 33 in the District Court.

94.  The contemporary approach of litigation is front end. Sit down and think when you get instructions about a new matter. What does the client want? The client wants an award for damages. Bearing in mind that a judgment itself has no commercial value, is the Defendant in a position to meet any judgment? If not, then it would be futile commencing litigation. It is far better to know this at the beginning of a case than near the end.

95.  Each dollar spent on litigation usually buys you more the sooner you spend it. In other words, it costs less to get the same job done early than late. This is another reason why front end litigation is preferable. This was recognised in disposing of a motion for security for costs by White J in April Fine Paper v Moore Business Systems [2009] NSWSC 867 at [26]:

In a usual case of commercial litigation, counsel, at least junior counsel, should be briefed early. Where there is work that can be done either by the solicitor or by junior counsel, and, as often happens, junior counsel is more experienced than the solicitor and charges at a significantly lower rate, then the solicitor's duty to his or her client is to ensure that the work is done at the lower cost. That general statement is, of course, subject to the ability of the individual legal practitioners involved. But very often one sees work done by a solicitor in a firm which could be done equally well or better at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.

Service of Process

96.  Service of originating process may be effected in a number of ways, which broadly falls into 2 classes: personal and non-personal.

97.  As experienced litigators know all too well, it is a common experience in debt recovery proceedings in the Local Court to commence proceedings, enter judgment, and attempt to enforce the judgment, only to find themselves being served with a motion to set aside default judgment. A recurring claim in the affidavit in support of the motion, is that the originating process did not come to the attention of the Defendant because it was never received by him. Regardless of whether or not that claim is actually true, in our experience it is far less common for such an allegation to be made when service has been personal than where service has been non-personal.

98.  Unsatisfied judgments have no commercial value. Read that again: unsatisfied judgments have no commercial value. Litigation is not an end in itself, but a means to an end (usually a financial end). A judgment’s commercial value only exists in the potential for money to be paid. The greater the amount of time it takes for money to be paid, the less valuable a judgment will be.

99.  Serving originating process in a manner that is non-personal, increases the likelihood that before a judgment is enforced and thereby satisfied, time and money will be spent over at least one interlocutory application to set aside judgment, and more likely than not subsequently litigating the whole proceedings from effectively the very beginning. This in turn means that it will take longer, and cost more money, to realise a judgment’s potential.

100.         The more commercial practice to adopt is to serve originating process personally.

Adjournments & Amendments

101.         The solicitors’ advocacy rules have something to say about adjournments:

A.15B. A practitioner must take steps to inform the opponent as soon as possible after the practitioner has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of the fact and the grounds of the application, and must try with the opponent’s consent to inform the Court of that application promptly.

102.         However, don’t expect your application to vacate a hearing date to be granted even if all parties consent. The Court is not a rubber stamp.

103.         By conducting front-end litigation, you should only need an adjournment because of the unreasonable conduct of your opponent, or misadventure. In either case, a Court will most likely grant an adjournment.

104.         Particular attention should be given to adjournments which relate to applications to amend pleadings.

105.         In Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 the Court of Appeal held:

28 The respondent invoked the authority of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 in support of its ability to amend, even for the fifth time. Case management practices in all Australian courts have changed significantly in the decade since that judgment. Although it remains binding authority with respect to the applicable common law principles, the circumstances of the case were significantly different from those in the present case and do not dictate its outcome. In any event, such principles can be, and have been, modified by statute both directly and via the statutory authority for Rules of Court.

29 In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms – “must seek” – to give effect to the overriding purpose – to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” – when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.

106.         In AON Risk Services Australia Limited v Australian National University [2009] HCA 27, the High Court overturned its previous decision in Queensland v JL Holdings Pty Limited [1997] HCA 1 and in doing so, made it clear that parties to litigation are not entitled to amend their pleadings as of right. In particular, the Court held that when litigation is at an advanced stage, issues such as delay, wasted costs and concern for case management will weigh heavily in a Court’s exercise of its discretion on an application to amend. As observed by Gummow, Hayne, Crennan, Kiefel and Bell JJ at [113]:

In the past it has been left largely to the parties to prepare for trial and to seek the Court’s assistance as required. Those times are long gone...

Dealing with Witnesses

107.         Clients may be witnesses too. The comments that follow apply to all witnesses, whether clients or not, but there are also comments that apply only to witnesses who are also clients.

108.         When it comes to oral evidence, speak to your witness as soon as possible so as to facilitate front end litigation, and preferably on more than one occasion before hearing to build trust and rapport. Speaking with a witness more than once before trial, allows you to develop a rapport with that witness. If you develop a rapport with a witness, that makes it more likely that the witness will co-operate. It is also more likely that a witness will volunteer information to you that may avoid unnecessary costs in future.

109.         Do not be afraid to use the telephone. There is nothing particularly magical (usually) about speaking to a witness face to face, so at least for a solicitor’s purpose, you can speak with a witness over the telephone early in the proceedings, and potentially at less cost and trouble for client.

110.         Most witnesses dislike having to come to Court. They will not tell you this, but it will be on their mind. You should learn to put them at ease and address this concern without them having to raise it. You should address this early in the interview, and before getting to the relevant facts.

111.         An excellent way to learn how to interview witnesses is to see someone more experienced do it – and preferably a few different people do it. A good way to arrange this for yourself is to schedule a conference with counsel to settle an affidavit.

What to talk about

112.         There is no point in attempting to conduct litigation without obtaining proper instructions from the client. Taking the example of contractual disputes, the point of taking instructions is to answer just one, simple question: who was supposed to do what, when, and for how much?

113.         You might remember being taught at university about the 4Ps of contracts: the parties, the price, the period and the performance. In other words, the who, how much, when and what of agreements. All contractual disputes necessarily canvass each of these 4 elements. They may not all be in dispute, but proof of each of these 4 elements is essential before any Plaintiff can succeed. Accordingly, if you act for a Plaintiff you need to satisfy yourself as to the existence, nature and extent of each of these elements. If you act for the Defendant, not only must you do the same work as the solicitor for the Plaintiff, but you also need to decide which, if any, of those elements will be the subject of admissions by your client, and which elements will be in dispute.

114.         Irrespective of whether you interview your client or a witness, the answer to the question as to what to talk about will be confined to seeking instructions on at least one element involved in proving or defending your case. Of course, there may be issues that extend beyond mere contractual elements. There may be relevant pieces of legislation, and there may be further or alternative causes of action that are relevant. If so, then these other issues will influence your decision as to what to talk about. However, irrespective of what other issues there are, you are expected to answer to the question: Who was supposed to do what, when and for how much?

How to talk to someone

115.         Interview strategy in the context of contractual disputes is not particularly different from interview strategy with respect to other, civil law disputes. The purpose of formulating an interview strategy before conferring with your client or a witness, is to identify and refine what it is that you wish to achieve. In other words, you are identifying goals. This is discussed at paragraph below.

116.         Having identified your goals, how can these be best achieved? Knowing where you want to go will make it more likely that you get there. Like any journey, there are various ways of travelling from where you are to where you want to go. Some modes of travel are better than others. This is equally true of interviewing clients and witnesses. This paper identifies 4 techniques that can be employed in contractual disputes to reach your goals, starting at paragraph below.

117.         Whilst your strategy and technique concern what you can do, ethics concerns what you should do. Bear in mind the Solicitors Professional Conduct and Practice Rules. There are a few rules that deal specifically with interviewing and other less specific rules that apply to litigation, which depend upon prior events, such as what occurred during an interview.

118.         A rule of thumb when interviewing witnesses is to use questions starting with W words:

(a)   What did you see?

(b)  When did you see it?

(c)   Where were you?

(d)  Who did it?

(e)  Why did you do that?

119.         Don’t simply bombard the witness with questions. Explain to them why it is that you want to hear what they say. Let them tell their story their own way – you can ask questions to clarify what they mean once they tell you the story.

Interview Strategy

120.         There are 3 strategic elements to a professional interview: how much time is the interview going to take, the cost to your client of that time, and the value to your client of that time. In contractual disputes, these concerns reduce down to: first, identifying an appropriate duration for an interview; second having regard to your client’s expectations; third, monitoring the interview dynamically.

No more than 30 minutes

 

121.         Every initial interview with a client or witness in a contractual dispute should take no more than 30 minutes. In that time, a competent practitioner will have identified the parameters of their engagement. That lawyer can then plan the future conduct of the proceedings.

122.         There will often be occasions where careful consideration and lengthy explanation will need to be given to clients, and sometimes other non-lawyers involved in disputes such as expert witnesses. However, conferences to settle affidavits, meetings with the client to give advice, and briefing expert witnesses have nothing to do with taking instructions. The first interview with a client or witness must necessarily be the most broad so as to ensure that the lawyer is able to properly apply his or her professional skill in servicing his or her client. The time limit of 30 minutes is directed to that type of interview.

123.         What is the point of the time limit? If the time limit is reliable (and you have to take it as a matter of trust from me that it is reliable), then it allows you to measure your progress against an objective standard. If you have commenced a first interview with a person, and it has taken 20 minutes to find out their name and address, then you are doing something wrong. Most likely, what is occurring is that you are unable to control the interviewee and direct the conversation to what is relevant. Busy lawyers periodically encounter talkative witnesses who are difficult to control. However, if you observe yourself repeatedly spending more than 30 minutes with any witness the first time you interview them, then you are doing something wrong.

Your client’s expectations

124.         Clients could not care less about proprietary estoppel. Res judicata bores them to tears. There is no such thing as an interesting question of law.

125.         The whole reason why you are interviewing someone is because of the fact that you have clients who expect something from you. There is no utility in interviewing someone unless that leads to the satisfaction of your client’s expectations.

126.         As far as what the client wants is concerned, this is a much broader question than what the client wants from you. All commercial disputes are about money, so it is very likely that money will be on your client’s mind. In a contractual dispute, it may be nothing more than wanting an amount of money to which your client believes he, she or it is entitled. There may however be other concerns that are also about money, though not obviously so. For example, your client may be in a continuing business relationship with a Third Party, and while your client believes that he, she or it is entitled to a certain sum of money from that Third Party as a result of a transaction, your client does not wish to jeopardise other transactions. Alternatively, your client may be involved in what at first blush appears to be a completely uneconomical dispute over a very small sum of money with a Third Party, but your client may in fact have similar contracts with a very large number of Third Parties. While each contract is for a small amount of money, the totality of all the contracts is a significant sum of money. A dispute may be seen by your client to be economical in the wider context of your client’s relations with a large group of Third Parties.

127.         It is difficult to conceive of advice properly given to commence litigation, or to pursue (or not to pursue) alternative dispute resolution, without identifying what it is that your client wants. Knowing what it is that your client wants before starting an interview with a witness is essential to canvassing relevant subjects during the interview.

128.         Most clients care about cost. This is not simply the amount of your bill, but also the opportunity cost to the client. That opportunity cost will include the client’s own time (e.g. travelling to see you, conferring with you, and spending time away from their business), the client’s own money (i.e. the cost to come and see you, and the income foregone in coming to see you) and the client’s personal resources (i.e. making up for the time that it takes to come and see you). Your client’s concern with cost, of whatever type, is broader than the cost of the interview. The expectations your client has about cost will influence whether or not information that you obtain in an interview with a witness is of any value to your client. A witness may provide information that is potentially very useful to you, but it may need to be verified, and the cost of verification and the cost of proving in accordance with the law of evidence the information that a witness gives you may be prohibitively expensive. Knowing before any interview what costs your client is willing and able to incur (and not simply knowing how much money your client is willing to spend) is essential for you to efficiently and effectively decide whether you should conduct the interview, and if so, then how to conduct the interview.

129.         The final area about which clients commonly have expectations is the duration between the present, and the subsequent fulfilment of their expectations. Most business people in dispute recognise a trade-off between how much money should be paid, and when it should be paid. Clients typically understand that the longer the period for money to be paid, the larger the payment should be. This applies equally to business people either paying or receiving money. Time periods are more important to some clients than others. Some businesses operate on a basis where targets need to be met on a monthly, quarterly or annual basis. Knowing the importance to your client of satisfying expectations within a particular time period is essential to the decisions that you make, and the advice that you give as a professional lawyer.

Fulfilling your client’s expectations

130.         Having noted the time, and bearing in mind your client’s expectations, the next strategic concern in any interview is dynamically assessing how the interviewee can contribute to the satisfaction of your client’s expectations.

131.         If the interviewee is your client, then those expectations will usually be satisfied by listening to your client tell their story, identifying what your client’s expectations are, and accurately communicating your understanding of those expectations to your client. In other words, clients want you to listen, and want to be sure that you have understood what it is they have told you. This is known as ‘active listening.’ That may not be enough to satisfy them, but it is an essential component of any first interview.

132.         If the interviewee is not your client, then there are 2 ways in which that person can satisfy your client’s expectations: either they are a witness in their own right, or they can identify other evidence in the form of other witnesses or direct evidence. In the context of contractual disputes, ‘direct evidence’ means documents, business records, databases, registers and other compendia of information. Accordingly, when first interviewing someone in a commercial dispute, you should bear in mind whether or not they can and should be a witness, and if not, if they can identify other potential witnesses or other direct evidence. If an interviewee does appear to be a likely candidate for a witness, then you should assess how valuable a witness the interviewee could be. However, if an interviewee is of no help as a witness in their own right, and cannot point you in any other useful direction, there is no point taking instructions from them. If it takes you 30 minutes to discover that the interviewee knows nothing and cannot help you, you have far less to regret than if you make the same discovery after a 3 hour interview.

Read documents beforehand

133.         Documents do not forget. They do not waffle, even though they regularly venture into unnecessarily elaborate detail. Information that documents convey is always the same, though the significance of that information may vary. Documents do not get tired, nor are they ever late for meetings.

134.         Documents are as reliable, or as unreliable as their authors, but in every other respect are far more useful sources of instruction. It is inevitable in any contractual dispute that results in litigation that lawyers will need to read and consider at least some, and usually many documents. In commercial disputes, pleadings will have to be drafted, particulars requested, and discovery given. Pleadings cannot be drafted, and particulars cannot be supplied in commercial disputes without recourse to documentation. Accordingly, in any contractual dispute, requesting as much documentation, as early as possible, will ultimately be of benefit to the client.

135.         While documents are just as reliable as people, they are superior in every other aspect to people as far as taking instructions is concerned. Before interviewing witnesses, and preferably before any substantial interview with a client, all the relevant documents should be obtained, read and understood. This will enable inconsistencies to be identified between information conveyed during an interview, and information contained in documents. Comprehension of the contents of relevant documents enables an interviewer to explore inconsistencies with an interviewee’s information effectively, efficiently and ethically. Even if documents do not contain any information that is dramatic, they at least form a basis upon which you may ask questions. Obviously, if you have documents in your possession, someone must have believed that they were relevant. Documents that do not appear to be relevant upon their face can be discussed, and whatever the result, a view can be taken as to the relevance and importance of those particular documents.

Speaking in someone’s own language

136.         We are not merely suggesting that you obtain an English – Chinese interpreter for your Chinese client. Speaking to someone in their own language means being attuned to the vocabulary the interviewee employs. That vocabulary will almost certainly be different to yours. Identifying the differences is important for 2 reasons: first, it provides you with an opportunity to employ words and phrases with which the interviewee is familiar and comfortable; second, it identifies the register at which affidavits and witness statements for the interviewee should be drafted, and provides words and phrases to be used in any such statement to properly convey the interviewee’s evidence.

137.         People who understand what you are saying, and who are comfortable in your presence, will tell you more than people who do not understand you, and whom you make uncomfortable. Lawyers start at a disadvantage, like undertakers and dentists, in that seeing lawyers usually means something unpleasant has happened. People are naturally wary of having any unpleasantness visited upon them.

138.         Identifying particular words and phrases used by an interviewee should trigger a consideration of whether you understand those particular words and phrases. By clarifying with an interviewee what is meant by those words and phrases, an interviewee learns that what they have said has been listened to. They also believe that what they have said is of some importance.

139.         Forcing yourself to adopt words and phrases used by an interviewee leads you to identifying the interviewee’s register. When the time comes to draft an affidavit, identification of that register will be critical in drafting an affidavit which accurately conveys relevant evidence, while at the same time is a written statement that the deponent can understand, and with which they are comfortable. There is also a collateral benefit seen in cross-examination: a statement drafted at an appropriate register prevents the possibility that your witness will be embarrassed whilst testifying when propositions are put to them under cross-examination that employ the language appearing in their own affidavit in respect of which the witness does not understand, or worse still, misunderstands. This is usually an entertaining, if not always fruitful, line of cross-examination of witnesses not fluent in English.

Drafting affidavits and statements

140.         What is the difference between an affidavit and a statement? An affidavit is sworn, whereas a statement is not. Hence when a witness is in the witness box adopting their written evidence, one asks an additional question when a statement is made, namely: Are the contents of your statement true and correct?

Rules of thumb for drafting affidavits and statements

141.         Use the witness’ own words as much as possible; see above at Speaking in someone’s own language

142.         Don’t use a formal format when drafting statements – print the draft statement on plain paper, and only put it into proper format immediately before the witness signs it.

143.         State the witness’ full name, address and occupation at the beginning, in a full paragraph. This will enable the witness to check that these items are correct. Move this information from the first paragraph to the appropriate location when creating the statement in proper format.

144.         The address should vary with the role of the witness: eyewitnesses should state their home address, and professional witnesses should state an address at which they can be found during business hours.

145.         Number every paragraph.

146.         Paginate every page (make sure the page numbers are visible on photocopies!).

147.         Paginate on the top and bottom right-hand corners.

148.         Recite the evidence in chronological order.

149.         If the timing of an event is important, place a date at the start of the paragraph.

150.         Each paragraph should express only 1 idea.

151.         Use headings

Speech in affidavits

152.         All too often, lawyers who draft affidavits do not deploy the deponent’s own words and manner of speech, succumbing instead to the temptation to “improve” the evidence. We are not suggesting unethical conduct, but highlight that even the best intentions are sometimes misguided. This is especially the case when it comes to speech.

153.         Lawyers are articulate, and generally speaking, much more articulate than other people. Lawyers write succinctly, precisely and accurately. There is always the temptation to re-draft a deponent’s own words to increase readability. Often, there is merit in some re-drafting (editing), but re-drafting can become so extreme that the language deployed departs from the witness so much that as to become questionable.

154.         We all know about writing in direct speech from plain legal language courses. However, in LMI v Baulderstone [2001] NSWSC 688, Barrett J had this to say about direct speech:

8 There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the 2 Queensland cases to which Mr Campbell took me share a common thread of the witness's inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.

9 The possibility that s.135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report, but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.

10 In the end, I think all this comes down not to a question of the admissibility of evidence but to the way in which evidence might most appropriately be tendered or adduced. Part 36 r 2 of the Supreme Court Rules reflects a general expectation that evidence will be given viva voce, an expectation very much modified in this Division and modified in a particular way in the Commercial List (Part 36 r 4A and Practice Note 100). However, the primary means based on oral testimony may usefully be resorted to where there are reservations about evidence in affidavit or statement form and where the opportunity can be taken test the witness on whether or not a conversation can be related in direct speech, even if in part only. As Wright shows, it may be useful to have some part of the actual words used, even if the witness cannot remember them all and must resort to descriptive recollection as to the balance.

11 Mr Wise will give oral evidence.

155.         In our experience, the best way to deal with speech in affidavits is to insert the following paragraph, and then apply it:

1.      In this affidavit, I have referred to conversations. Where words are underlined, this means that I now remember that these were the exact words spoken. Where words are not underlined, this means that I do not now remember exactly what words were used, though I do remember the substance of the conversation, and I have used words to the same effect as the substance of the conversation. Where some words are underlined, this means that I now remember that the underlined words were the exact words spoken, and I have also used other words to the same effect as the substance of the conversation.

156.         This technique generally does not work for very inarticulate or unintelligent deponents.

157.         When the witness evidences speech, place each part of the conversation in a separate paragraph (a sub-paragraph for each change of speaker is a good idea). For example:

2.       Bill and I had a conversation.

a.      I said: “Hello Bill”’

b.      He said: “I’m going to kill you.”

158.         Note that if you have used the suggested paragraph discussed at [155] then “said” really means “said words to the effect”.

The final draft

159.         Give a witness a copy of his/her final draft statements, and give him or her at least overnight to digest the contents. It is a very common phenomenon for witnesses to remember something and significantly alter their evidence after considering the first draft, and less commonly after the last draft.

Swearing affidavits: I say on oath/affirm

160.         Close attention must be paid to the execution of affidavits:

(a)   Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299; (2008) 217 FLR 366; see attached:

52 This case illustrates the high price that may have to be paid for lack of attention to simple matters of detail.

(b)  McPherson Project Services Pty Ltd v Nine2Three Employment Solutions Pty Ltd [2008] NSWSC 384:

1 The Plaintiff makes application under s 459G of the Corporations Act 2001…

2 The Defendant has raised a threshold objection to the competency of the s 459G application.

3 It is provided by s 459G(3) that an application is made in accordance with s 459G only if, within the period of 21 days to which the section refers, 2 things have happened. One of them is "an affidavit supporting the application is filed with the Court": s 459G(3)(a).

4 The document the Plaintiff relies upon as an affidavit supporting the application is a document which begins, “I Mark McPherson of Level 1/317 The Kingsway, Caringbah in the State of New South Wales make oath and say”. Then follow 9 numbered paragraphs. After that there is a space for a date, but no date appears. There is then a signature under which are the typewritten words “Signature of Mark McPherson, Director of the Plaintiff”.

5 The Defendant takes the point that this is not an affidavit at all.

6 One of the essential characteristics of an affidavit that is sworn (rather than affirmed), as this one purports to be, is that it is sworn in the presence of an official having authority under the Oaths Act 1900 to administer an oath who then appends his or her signature to show that the deponent has actually appeared before that person, been put upon his or her oath and, while on oath, has signed the document.

7 The absence of any indication that the deponent or supposed deponent appeared before any official recognised by the Oaths Act and that an oath was administered, so that the affidavit was sworn before that official, is fatal to the contention that the document is an affidavit – unless extrinsic evidence is tendered and received to prove those matters. No attempt has been made to adduce extrinsic evidence to show that the requirement of due swearing was observed.

8 The absence of an affidavit is fatal to the Plaintiff's claim…On this ground alone, therefore, the present application for an order under s 459G must be dismissed.

(c)   Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at per Young JA at [97]-[98]:

97 I would make one final point which has nothing to do with the merits of this case. At pp 145 and following of Vol 1 of the Blue Appeal Book, there is a document which purports to be an affidavit of an employed solicitor on behalf of the Plaintiff. The document starts with the deponent’s name and that she is a solicitor, and then says:

“I say on oath/affirm”

At p 149 at the end, the document ends up ”SWORN/AFFIRMED on …”.

98 Such documents should not be received as affidavits. Whilst if a person objects to take an oath, that person may instead of taking a oath, make a solemn affirmation (vide s 12 of the Oaths Act 1900). At the very least, the person making the affidavit and the solicitor or Justice of the Peace taking the affidavit, must see that it is taken on oath unless the person objects to taking an oath and is prepared to make an affirmation. Whichever happens, it must be clearly said. A person who signs a piece of paper “Sworn/affirmed” or a like expression, shows that the person did not really make an affidavit and indeed probably did not appreciate the solemnity of what he or she was doing. My practice at first instance was never to receive such documents and have the deponent re-swear or give oral evidence. I have noticed, however, that the over-casual approach to affidavits has, nonetheless, continued.

161.         The failure to properly administer the oath can amount to professional misconduct: English v Legal Practitioners Complaints Committee (1986) 41 SASR 217

Witnesses at Court

162.         Most witnesses have either never been to Court, or have been to Court several times. Work out which type of witness you have. Instructions you give them will vary in accordance with their experience.

Get your witness to Court

163.         Serve a subpoena to attend – even if the witness is happy to attend. If a witness fails to show, then you can always apply for an adjournment by reading the affidavit of service of the subpoena. Note that if you don’t have an affidavit, you may not get the adjournment: it is your job as a solicitor to serve the subpoena and to get affidavits of service.

164.         Your witness needs to know where to go, and what time to be there, in order to give evidence. Street addresses and maps are a very good idea to assist the witnesses in finding the Courthouse.

165.         Take a walk around Courts that you often visit and take note of any obvious geographical features and car parking stations. Take the time to sit down and prepare a simple map.

166.         Test the accuracy of the map on a colleague.

167.         Allow 30 minutes time for the witness to get to Court:

(a)   Not knowing where they are going

(b)  Passing through security or queues for the lifts

(c)   Using the toilet (remember, they’re nervous).

168.         Supply witnesses with the instructing solicitor’s mobile phone number in case of a problem.

Prepare your witness to give evidence

169.         The less experienced a witness is in giving evidence, the more preparation will have to be done. In the case of anxious witnesses, the morning of the day on which they are to give evidence for the first time is too late to effectively prepare the witness to give evidence. The less experience your witness has, the further away from trial you need to prepare the witness to give evidence.

170.         Ask the witness to leave all their papers relating to the proceedings at home, unless they are an expert witness and need access to those documents.

171.         Ask witnesses to re-read to their statements the night before giving evidence.

172.         Explain to the witness:

(a)   What is going to happen to them physically once they enter the Court room.

(b)  The layout of the Court room from the perspective of the witness box.

(c)   Who the various people in the Courtroom will be, and what their roles are.

173.         Make sure there is water available in the witness box for the witness to drink, and also make sure that your witness knows he or she is allowed to drink.

174.         Witnesses, including witnesses who have appeared in Court before, will be a little nervous. They want to be re-assured that the experience they will go through does not resemble in any way the abusive cross-examination techniques displayed in American TV shows. They will not always tell you this, but they will usually have it on their mind. Re-assure them. Tell them what you expect will be the subject of cross-examination.

175.         If you are not the advocate, ask your advocate (usually a barrister) if they wish to confer with the witness prior to the witness giving evidence. Almost invariably they will do so. Observe what the advocate does with the witness, and learn from that experience.

 

Managing Documents

Sedley’s Laws of Documents[1]

(1)  First Law: Documents may be assembled in any order, provided that it is not chronological, numerical or alphabetical.

(2)  Second Law: Documents shall in no circumstances be paginated continuously.

(3)  Third Law: No 2 copies of any bundle of documents shall have the same pagination.

(4)  Fourth Law: Every document shall carry at least 3 numbers in different places, any one of which could be a page number.

(5)  Fifth Law: Important documents shall be omitted.

(6)  Sixth Law: At least 10% of the documents shall appear more than once in the bundle.

(7)  Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

(8)  Eighth Law: At least 80% of the documents shall be irrelevant.

(9)  Ninth Law: Only one side of any double-sided document shall be reproduced. That shall be the unimportant side.

(10)         Tenth Law: Transcriptions of handwritten documents shall bear as little relation as reasonably practicable to the original.

(11)         Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

(a)   A steel pin sharp enough to injure the reader; or

(b)  A staple too short to penetrate the full thickness of the bundle; or

(c)   Tape binding so stitched that the bundle cannot be fully opened; or

(d)  A ring or arch-binder, so damaged that the 2 arches do not meet.

Documents and Barristers

176.         If you are in doubt as to what documents you need, then brief counsel to advise on evidence. A relatively modest outlay sometime before trial will minimise the likelihood that time and effort will be spent in accumulating evidence that is either irrelevant or otherwise inadmissible. It will also minimise the probability that a hearing will be adjourned because you are not ready.

Documents and affidavits

177.         After 15 years of practice, one of the authors has concluded that there are only 2 effective ways of managing documents when it comes to affidavits.

A few pages of documents

178.         One method presents itself if the combined length of the pages of text of an affidavit and the pages of documents is less than 25 pages in total.

179.         In this case, annex copies of every document. Use annexure stamps, not annexure certificates. If necessary, when copying the document, reduce the image size to make room for annexure stamps and pagination.


A document bundle

180.         In any other case, create a single exhibit to the affidavit, which is a bundle of documents in a folder separated by tabs, enclosing copies of each document behind various tabs. Insert the following in the first or second paragraph of the text of the affidavit:

3.      Exhibited to this affidavit and marked XXX-1 is a folder of copies of documents separated by tabs. When I refer to a document in that folder, I will identify the particular tab behind which the document can be found; for example, “at Tab-3” is a reference to the document appearing behind Tab 3.

181.         Refer to the documents as follows, for example:

4.      By December 2006, I became sufficiently interested in the promotions offered by the Plaintiff to have visited its website. On 7 February 2008, I printed out 2 pages from the Plaintiff’s website. Those 2 pages appear at Tab‑1. To the best of my recollection now, those 2 pages were the same as the Plaintiff’s website as at December 2006.

5.      On 19 October 2007, I had a telephone conversation with Mr Smith, along the lines of the note appearing at paragraph 15 of Mr Smith’s Affidavit.

6.      Later on 19 October 2007, I received an email from Mr Smith. A copy is at Tab‑2. This is the same as the email that appears at Tab 13 of the exhibit to Mr Smith’s Affidavit.

7.      On 22 October 2007, I sent an email to Mr Smith. A copy is at Tab‑3. This is the same as the email that appears at Tab 14 of the exhibit to Mr Smith’s Affidavit.

182.         Note that “Tab-2” is underlined and in bold – easy to spot on the page isn’t it?

183.         Do not paginate the bundle – when another document has to be inserted you will be grateful that only tab numbers need to be updated.

 

Working with Counsel

Why work with counsel?

184.         You should work with counsel because they possess skills necessary to successfully conduct litigation which you do not possess yourself.

185.         Traditionally, solicitors maintained general practices and barristers became specialised advocates. Barristers became not simply experts in the practice of litigation, but also became experts in particular fields of law. At least in New South Wales, the position is changing. The modern approach is for solicitors to specialise in either litigation or transactions. A solicitor specialising in litigation (of whatever type) will become familiar with the practice of litigation, to some degree or other. The result is that solicitors no longer turn to barristers for everything to do with litigation; instead solicitors turn to barristers to deal with the hard parts of litigation.

186.         Almost invariably significant or complex interlocutory applications, and all hearing and appeals will be conducted by barristers. This is because barristers of necessity specialise in forensic advocacy, irrespective of what other areas of law they know.

187.         Most barristers come to specialise in one area or another. Consequently, legal problems may be most quickly and cost-effectively resolved by seeking the input of counsel experienced in a particular field of law.

188.         What about solicitors who have a great knowledge of one area of the law? When it comes to advice work, advising on what the law is, there is no reason why an experienced solicitor should not be able to provide as good an advice as an experienced barrister. However, senior solicitors are often partners in firms who are pre-occupied with running the business. They don’t have time to give advice on issues. If you require another lawyer to give a considered advice, you will usually find it much quicker and simpler to arrange for a barrister to give that advice, rather than a solicitor more senior in your firm.

189.         What about solicitor advocates? Again, there is no reason why a solicitor advocate should be any better or worse than a barrister in Court. However, one brutal fact of life is that barristers are of higher status than solicitors in Court, whether solicitor advocates or not. The same words spoken by a barrister will be treated more carefully than words spoken by a solicitor. In turn, words spoken by senior counsel are more likely to be given attention than the same words spoken by junior counsel. By hiring a barrister to act as advocate, you are purchasing higher status, and therefore purchasing an enhanced ability for your client to succeed.

190.         It is impossible to know everything about the law. It is very difficult to run a busy solicitor’s practice if much of a solicitor’s time is taken up with relatively complex advices. It is also difficult to justify a large fee to a client for advice. Even though the total sum paid may be the same (or a little more) clients are often far more receptive to being charged for an advice given by counsel, than to be charged a comparable amount for advice given by a solicitor. Engaging counsel frees up a solicitor’s time to occupy him or herself with what he or she does best.

191.         A very important reason for working with counsel is the independence of the Bar. Barristers are obliged to conduct their practices by means of only one vehicle: being a sole trader. The consequence of this obligation is that barristers are completely independent. Barristers provide a fresh perspective on a case, which is often difficult to obtain within a firm. Often it is easier for a barrister to deliver bad news to a client than the client’s own solicitor, because the issue of why it was that the solicitor had not previously raised this is not canvassed (barristers are very adept at avoiding this issue!).

192.         The role of a barrister is to make a solicitor’s life easier. That’s why you brief barristers. If you brief a barrister who does not make your life easier, then brief someone else.

Obtaining advice from counsel

193.         In conjunction with forensic advocacy, legal advice is the main area of barristers’ work.

194.         Barristers’ advice can be formal or informal. A formal advice is delivered either in writing or orally. If advice is delivered in writing, this has traditionally been in the form of what is known as a Memorandum of Advice. This is a traditional term that is (slowly) falling out of favour as a growing number of barristers will simply provide their advice in the form of a letter, in the same way that solicitors’ provide advice to their clients in the form of a letter.

195.         When a barrister gives formal advice orally, that is to give advice in conference. This means that there will be a meeting between the barrister and solicitor (and usually but not always, the client) in which the barrister will give his opinion. There will be no written record of that advice, other than the solicitor’s notes.

Retaining and Briefing counsel

196.         Briefing counsel is the phrase used in the practice of law to mean the engagement of a barrister to do something on behalf of the solicitor and/or the client.

197.         Barristers are briefed to:

(a)   Advise; or

(b)  Appear; or

(c)   Advise and appear.

198.         In civil litigation, there are 5 main types of brief to advise. Counsel is briefed to advise:

(a)   On liability.

(b)  On quantum.

(c)   On evidence.

(d)  On prospects.

(e)  Generally.

199.         Advising on liability, is advising on the issues that determine the victor. Advising on quantum, is advising on how much the claimant is going to get. Advising on evidence, is advising how liability and quantum are going to be proved. Advising on prospects is the barrister’s estimate as to the likelihood of success. A general advice is to advise on all these things, and anything else the barrister thinks is important. If in doubt, brief counsel to advise generally.

200.         Unless otherwise stated, the assumption will be that if counsel is advised, counsel is to provide a written advice. If what you intend is for counsel to advise in conference, then this should be clearly noted on the brief as “to advise in conference”.

201.         If counsel is briefed to appear, then the brief should clearly identify the matter, the jurisdiction, the venue and the date upon which counsel is to appear.

202.         When deciding whether or not to brief counsel, it is often a good idea to telephone the counsel you want to brief. If the brief is to advise, have a brief discussion with the barrister, and if there are time constraints raise these with him. If it is a brief to appear, find out if the barrister is available on the particular day.

203.         If you intend to brief counsel to appear, then the appropriate time to retain counsel is immediately before a hearing date is allocated. Even if the hearing date is months away and your counsel is comparatively junior, you should always contact either the counsel or the clerk of chambers to ensure that the hearing is allocated to a day which is convenient to counsel.

204.         Having retained counsel to advise, or to appear, you then have to supply counsel with a brief. Briefs comprise the following:

(a)   Observations.

(b)  Pleadings.

(c)   Affidavits and statements.

(d)  Evidence.

(e)  Other stuff.

205.         Observations are a short summary of the following:

(a)   Identifying your client.

(b)  Identifying the parties to the dispute, and if necessary their respective solicitors.

(c)   The nature of the dispute.

(d)  What you would like counsel to do.

206.         Observations should be no more than one page long. There is no need to recite the facts of a matter. Counsel are not stupid. Counsel will read the entirety of the brief, and there is no need to waste your time repeating what is contained in the rest of the brief.

207.         Pleadings are confined to those Court documents that are relevant. This is often the most recent Statement of Claim and Defence thereto, or the Notice of Motion if counsel is briefed to appear on a motion. Notices to Admit Facts and Authenticity of Documents, and Offers of Compromise should also be included. Interlocutory Orders, if relevant, should also be included.

208.         The affidavits and statements are simply that. The affidavits and statements should be separated into groups, with each group being the depositions of a particular party, e.g. there will be a collection of Plaintiff’s affidavits, and a separate group of Defendant’s affidavits. In each group, affidavits should be organised alphabetically by the surname of the deponent. If a deponent has sworn more than one affidavit, then the affidavit should be arranged in chronological order. Do not include every single affidavit and statement in the proceedings – only those that are relevant.

209.         Evidence encompasses all that evidence that is not an affidavit or statement. This will usually include:

(a)   Expert reports.

(b)  Evidentiary certificates under the Evidence Act 1995.

(c)   Extracts from official registers (e.g. Business Names Register, Land Titles Register, Australian Business Number Register, etc).

(d)  Documents to be used in cross-examination.

210.         Every brief contains a section at the end containing miscellaneous bits and pieces. There is usually some relevant correspondence, whose purpose is at least to provide the necessary background to counsel. That correspondence should be placed in this section. It is usual to include letters to the client so that counsel knows what the client has been told. There may also be documents produced under subpoena. Both the subpoena and the documents produced in answer to it should go in this section.

211.         If you are in doubt as to what should go into a brief, err on the side of including in the brief rather than leaving it out. If you have absolutely no idea what should go in, simply photocopy your entire file.

212.         Do not include original documents in briefs. If it is necessary for counsel to have access to an original document in order to advise, then invite counsel to contact you to make suitable arrangements. The proposed arrangements will almost certainly be a conference. The reason why original documents are not sent to counsel is that counsel invariably lose documents. Copies can always be replaced, but once originals are lost they are gone forever.

213.         Briefs should be printed on one side of the paper. If a document is double-sided, it should be photocopied in such a way to produce 2 sheets of paper with printing on one side only.

214.         If your dispute concerns in any way a company, you should obtain an Historical Company Extract from the Australian Securities and Investment Commission database. A copy of that extract should be in the brief. Similarly, if land is in issue, then you should obtain an historical title search. I would like to emphasise the value of obtaining historical searches, not merely current searches. There is more often than not some useful piece of information found in historical searches that is absent from current searches.

215.         In our opinion, do not bother indexing or paginating a brief. This is a waste of your client’s money. The only point of indexing a brief is so that you maintain a record of precisely what documents you sent to counsel. In our experience, we have never encountered a situation where it was necessary to determine precisely what was sent to counsel, and what was not, that was resolved by an index. It is a solicitor’s responsibility to brief counsel with all relevant documents, so when the issue of materials briefed arises (which in our experience is extremely rarely) it will almost always be the solicitor’s responsibility in any event. For good order, you should prepare a Table of Contents to accompany Observations; the difference between an index and table of contents is the degree of precision by which the contents of the brief are identified.

216.         Please note, however, that particular firms of solicitors have a practice of indexing briefs, usually for professional indemnity insurance reasons. Accordingly, our opinion is subject to other commercial concerns particular to individual firms. This will be a decision of the partners of the firm, so we recommend that you first check to see what is the firm policy to brief indexation and apply that policy.

217.         Solicitors and barristers work together as teams in litigation. A team is only as good as its weakest member. Whether you brief the most senior of silks or the lowliest of junior barristers, you can be sure that spending the time and effort to put together a well-organised and tidy brief will make it much easier for you and the barrister to provide a good service to the clients.

218.         A list of things you should not do when briefing counsel can be found in the article entitled “Give the Barrister a Chance” by Daniel Barnett,[2] which is attached to this paper.

Instructing counsel

219.         Instructing counsel means attending Court at the same time as counsel. Counsel sits at the Bar Table doing his or her job, and you as the solicitor sit behind him or her. Here are some tips on what you should do, and should not do.

220.         Bring a pencil case to Court with spare pens, paper, post-it notes and other office supplies. If counsel ever runs out, he will turn to you to fill the gap. There will seldom be time to run out to the nearest stationers.

221.         Take notes of the proceedings. Take particular care to note any orders made. Also take a note of the evidence as best as you can, though this is a difficult task particularly when starting out.

222.         Have copies of important documents to hand, in case counsel needs another copy of the Judge, witness or to cover some other eventuality.

223.         If counsel is wearing robes, never tug those robes to get counsel’s attention. This is extremely irritating and off-putting. If you want to get counsel’s attention, pass a note (not a manuscript!) to him to her at the Bar Table. If necessary, get up and walk to the Bar table and place a note beside counsel.

 

Advocacy Basics

What is advocacy?

224.         Advocacy is the art of persuasion. It is an ability to manipulate a person to accept what you are saying, and to do what you want them to. Forensic advocacy is advocacy in the context of litigation.

225.         Advocacy is not about fighting. American TV shows are totally unrealistic in the way they portray forensic advocacy. Common sense suggests that advocacy cannot be about fighting, for the simple reason that it is generally much harder to persuade someone if you are fighting with them than being nice to them.

226.         Advocacy is usually, but not always, oral. As a solicitor, this will involve standing up in Court, asking witnesses questions, and making submissions to the bench. The remainder of this workshop will focus on that.

Applications of advocacy: opening, examining and closing

227.         Three common instances of advocacy are opening, examining and closing.

228.         Opening occurs at the very beginning of hearing. Opening is giving a summary to the Court of what it is that has brought the parties before the Court, and what the Court is being asked to do.

229.         Examining is comprised of examination in chief, cross-examination and re-examination. This is essentially asking witnesses different forms of questions that result in the tender of evidence.

230.         Closing is a summary of what has gone on before the Court at the end of the proceedings. It is mainly concerned with identifying what the story is (i.e. confirming the Plaintiff’s opening, or changing the Plaintiff’s opening if the evidence took a different course). Closing then leads to a consideration of the law, and reasons as to why particular laws should be applied to particular facts to achieve particular results.

Public speaking techniques

231.         The 4 most common errors committed by young lawyers when appearing in Court are:

(a)   Talking too quickly.

(b)  Talking too quietly.

(c)   Assuming the Court knows the facts of the case when he or she doesn’t.

(d)  Talking too much.

232.         To immediately improve your advocacy, you should reverse each of these. You should:

(a)   Talk slowly. There is a phenomenon when one speaks in public, which alters your aural perception. You hear yourself speaking slower than you actually are. In other words, you speak faster than you think you are. The appropriate speed at which to speak is at a speed that sounds to you as being just a little too slow.

(b)  Speak loudly. Most members of the bench are at least middle aged, if not substantially older. Their hearing has deteriorated. Aim for the part of the Courtroom wall behind the head of the whoever is on the bench, and project your voice to be clearly heard at that point.

(c)   Assume that members of the bench are intelligent but ignorant. If any fact is relevant to your case, say it. It may sound to you as though you are stating the obvious, but this is likely to be the first time the bench hears it. Do not hesitate to repeat something, if you feel that the bench has not grasped it the first time.

(d)  If in doubt as to what to say, say nothing. Dangerous things happen when advocates open their mouths and say something for the sake of it. It is always regrettable when defeat is snatched from the jaws of victory.

Interlocutory appearances

233.         Interlocutory applications and interlocutory directions hearings are often wasted for the simple reason that no one seems to know why they are actually there in Court on that day. A solicitor may want to make a complaint about the other party’s conduct of the litigation to date. For example, the other party may have breached certain orders for the service of evidence. Other than listening to the sound of your own voice, there is absolutely nothing to be gained from standing up in Court and complaining about dilatory conduct on the part of your opponent. The complaint may be a means to an end, but it is not an end in itself.

234.         If the end you have in mind is, for example to dismiss a claim for want of prosecution, then complaining about your opponents dilatory conduct is relevant. If you want the matter set down for hearing as soon as possible, then complaining may be completely irrelevant, and indeed may thwart your goal.

235.         Interlocutory directions (NB: not motions) before the Courts are unproductive when they are reduced to a point scoring exercise. Leave point scoring to hearings.

236.         If you know why you are in Court, then you should be able to work out what is important and what is not. If you are in Court for a directions hearing at which time you may obtain a hearing, date, and if you want to obtain a hearing date, don’t complain about past defaults of your opponent if that has nothing to do with obtaining a hearing date.

237.         Once you know what you want, you need to know what you want the Court to do. Solicitors and barristers appear before the Court with the obligation to assist the Court in doing justice. It is your task as your client’s legal representative to persuade a Court that doing justice means doing something that gets you what you want. It may sound obvious, but you must be in a position to tell the Court what it is to do, because that is your obligation, and it is in your client’s best interests that you know what the Court should do in case you encounter a bench who does not.

238.         Almost invariably, the only thing the Court will do is to make orders. Accordingly, knowing what you want the Court to do almost always reduces to the Court making a particular order. Prior to you appearing before the Court, discipline yourself to formulate the precise wording of the orders you want the Court to make. This will focus your mind on what is relevant and irrelevant to a Court considering whether or not to make those orders.

239.         Different Courts, different benches, and different divisions, have different Acts, Rules, practice notes and procedures by which Courts resolve disputes. You need to become familiar with all these things so that you can recommend to your client, and suggest to the bench, a mechanism by which the litigation will be advanced to the advantage of your client.

240.         On any contested application, particularly if you are inexperienced, do not appear without a loose-leaf service. Before drafting any interlocutory application, read the relevant text in the loose-leaf service unless you are intimately familiar with the area. If you are inexperienced, arrive early and watch how other practitioners conduct themselves before the Court. Seeing how it is done on the day will make up for any lack of experience you have in practicing in that Court.

241.         Finally, keep things simple. The vast majority of disputes come down to one principal issue. Sometimes this is factual, sometimes this is legal, but usually there is only one issue. That is not to say that a Plaintiff only has to lead evidence about one issue, nor is it to say that defects in a party’s case cannot be exploited by an opponent. However, by identifying what is the principal issue in the case allows you to distinguish between what is important and what is unimportant.

242.         Spending time and money on unimportant things increases the likelihood that a dispute will be uneconomical. Conversely, concentrating on what is important, makes it more likely that proceedings will be economical.

Strategy & tactics

243.         At the commencement of instructions, work out how you are going to resolve a dispute. Make a plan, and stick to it. Periodically review it, and if you believe that it is not working speak to someone more experienced.

244.         Remember that litigation is not an end in itself, it is ultimately about winning, and justice being done. Everything you do must be calculated to move your client closer towards a successful resolution of the dispute.

 

Where to from here?

Cultivate a mentor

245.         Find a mentor with the following characteristics:

(a)   Is 5 to 15 years more senior than you.

(b)  Is someone who you respect, and preferably like.

(c)   Is someone who respects, and preferably likes, you.

(d)  Is someone who has time to answer your questions.

Establish rapport with a junior barrister

246.         Once a solicitor has sent a number of briefs to a barrister, and developed an ongoing relationship, the door becomes open for a barrister to deliver informal advice.

247.         The solicitor may encounter a relatively minor problem which is not worth solving by formal advice from counsel. However, the small problem will tax a solicitor’s resources. In that case, a solicitor can telephone the barrister and raise the problem with him or her, and obtain instantaneous advice. This should solve the problem. The barrister does not render any fee for this work; in return, the barrister’s advice and identity is not recorded anywhere by the solicitor, thus making an action for professional negligence against the barrister impossible.

248.         This is informal advice, and is a collateral benefit from treating your barristers well.

Join NSW Young Lawyers

249.         From the website:

About Us

With more than 9,500 members, NSW Young Lawyers is the state’s largest body of young and newly practising lawyers, and law students.

Active, innovative and dynamic, we support practitioners in the early stages of their career development, giving them the opportunity to meet, work together, expand their knowledge, advance their career and contribute to the profession and community.

Membership is free and automatic for all NSW lawyers under 36 years and/or in their first 5 years of practice, and law students.

Through our Continuing Legal Education (CLE) activities, we are able to support the development of programs for the benefit of both the legal profession and the community at large.

250.         No man is an island (though some are very long peninsulas!). To thrive in litigation you need colleagues whom you respect and trust. You need to start building those relationships with people of your own seniority. The best way of doing this is to become actively involved in NSW Young Lawyers. In particular, look for their publications like:

(a)   A Practitioner’s Guide to Civil Litigation

(b)  A Practitioner’s Guide to Criminal Law

(c)   A Practitioner’s Guide to Family Law.



[1] Adapted from J.J. Spigelman, “Expert Witnesses: Forensic accounting in an adversary system” LSJ, October 2003, p.60.

[2] Daniel Barnett, “Give the Barrister a Chance”, Times Online, 23 September 2003, see: www.timesonline.co.uk.

 
Last Updated ( Friday, 19 March 2010 )
 
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