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Unpredicted developments can be the most foreboding aspect of appearing at court. Paige Jones and Jack Palmer describe five such experiences as pupils – and what they learnt
As a barrister you make every effort to prepare for all potential eventualities in your case. But courtroom advocacy will always be able to spring a surprise. This article details five ‘unknown unknowns’ experienced by the authors as baby barristers, and how we dealt with the proverbial litigation hand grenades.
Forfeiture applications under the Proceeds of Crime Act 2002, in my humble opinion, require some of the most detailed preparation work that a pupil or baby junior must do. Bundles are full of bank statements, spreadsheets and transaction histories and so, if you’re as maths-phobic as I am, just getting your head around the numbers can take a while. Add bitcoin transfers into the mix and you have yourself a very nervous pupil.
I had prepared for hours, familiarising myself with the legal framework and setting out my cross-examination with page references to the bundle. I caught the 6:30am train to make sure I was on time for my hearing. Upon arrival at court, adrenaline kicked in and I was totally focused on everything that I wanted to say. Then, at 9:35am, I was told by the usher that the interpreter (who had been booked for months) was not coming. Unsurprisingly, cross-examination required the respondent to be able to understand my questions and so this was a big problem for my case.
I discussed our options with my client who decided to settle instead of adjourn to a new date. This was accepted by the respondent. However, settlement will not always be an option and Plan B would have been to adjourn and start the long journey home.
So, what I learned is that missing interpreters can cause a lot of disruption to a case and that the organisation of them is key. Every new unknown unknown is worrying so early in one’s career. Stay calm, take instructions and communicate with the court – and you will discover that there is a solution.
There are innumerable ways in which bundles can cause problems for advocates and the court. At my first Closure Order application I turned up with my cross-examination prepared, as always, with references to specific pages in the bundle. I had anticipated a hard copy of the bundle being available to the respondent during the hearing.
Unfortunately, this was not the case. The only bundle available was the one brought along by the respondent themselves. It was a pile of loose, unpaginated papers. In order to effectively cross-examine, I had to ask the judge’s permission to find the correct page for the respondent ahead of each question. There was a lot of speed reading and paper shuffling involved.
I’ve learned that bundles can go wrong in all manner of ways and the lack of pagination can hinder a smooth cross-examination. The best approach I’ve found is to contact your solicitor in advance of any hearing and confirm that the person meeting you at court will bring paginated bundles with them.
As a civil law pupil doing hearings in the Magistrates’ Courts, nothing makes my heart sink faster than arriving at court to be told by an usher that my hearing is in the ‘remand court’. This means my courtroom has been allocated to deal with people brought into custody overnight and, since their liberty is at stake, these cases will be heard first. These lists are often long and can make you feel like you are sitting in standstill rush hour traffic. You are helpless to the fact that you just have to wait until the list is done and, even if your hearing was listed for 10am, you may find yourself waiting until after lunch to be called on.
On one occasion, I had an agreed Sexual Harm Prevention Order hearing, and the only points of disagreement were two terms of the order. I was sure this could be dealt with in 30 minutes. I asked the list caller if we could be slotted in at any point if there was a small gap between defendants, but I was told no. In total, I waited seven hours (arriving at 9am and being called on at 4pm).
There is not much one can do in this situation. Civil applications often get put to the bottom of the list. I learned that sometimes there is no solution to a problem and you just have to be patient. It also helps to be gracious to the court staff in the hope that they may find a gap in the list and slot in your case.
No matter how well prepared you are, the other party can always spring a surprise. This is particularly likely, and potentially problematic, with litigants in person. Early in my second six I was instructed to attend the first hearing in a Stalking Protection Order application. The case concerned a toxic relationship and acrimonious break-up between the defendant and their ex-partner. Service of the bundle could not be completed as the defendant was of ‘no fixed abode’ although they had received a court summons. I was doubtful that the defendant would attend court.
The defendant sprang two surprises. Firstly, they arrived. Secondly, they insisted they wanted to agree the full order to ‘get this all over with’. At face value this seemed an easy win for my client. However, on deeper consideration it was clear there were ethical issues presented by agreeing the order. The defendant had potential capacity issues arising from their mental illness. They had not received any legal advice and it was unclear whether they appreciated the full gravity of the order. I sought out the duty solicitor who agreed to represent the defendant in the hearing. The court ordered an adjournment and made an interim order to allow the defendant to have a capacity assessment and arrange legal aid for representation while ensuring my client secured the protection afforded by the interim order.
I had never countenanced that the defendant might agree the order. Litigants in person are perhaps the most bountiful source of ‘unknown unknowns’. This experience taught me the value of taking a step back when presented with a surprise and making sure to consider the full ramifications of every decision in litigation.
There are few things worse as a baby barrister than having all the pieces of the puzzle prepared but then a key witness is nowhere to be seen. This happened in my first week of practising. As the clock moved inexorably towards 10am my opponent was not-so-subtly suggesting that the application would have to be abandoned. I called my instructing solicitor and the witness but was unable to get through to either.
I have come to realise that this scenario is unspectacularly representative of the problems which arise when attending court. Almost all barristers will have plenty of similar experiences. As a very junior barrister, though, they can seem irresolvable. But of course, clients entrust counsel to find solutions to these problems. In this case, I was able to persuade the court to hear other matters first before finally getting through to my witness, who had broken down on the way to court without phone signal. The court agreed for the witness to give evidence from home via cloud video platform at the end of the day’s list. In subsequent cases, it has been possible to rely on witness statements as hearsay, to call other witnesses whose evidence may address a point in issue, or adjourn the case to future dates.
I learned that if you can provide as much information to the courts about a problem, that is usually a good starting point. After that, keeping a calm head under pressure and finding solutions are what clients expect from their barristers. I have no doubt I will continue to encounter new ways for life’s unexpected turns to affect litigation.
Unknown unknowns in the courtroom are infinite in their variety and less experienced barristers often find this element of advocacy to be one of the most challenging. It is a truism that you cannot prepare for every eventuality. These examples show just some of the ways cases can go wrong, and principles for how to keep the advocacy show on the road.
Paige Jones is a pupil at 5 Essex Court with a busy court practice in all Chambers’ key practice areas.
Jack Palmer is a pupil at 5 Essex Court with a busy court practice in all Chambers’ key practice areas.
As a barrister you make every effort to prepare for all potential eventualities in your case. But courtroom advocacy will always be able to spring a surprise. This article details five ‘unknown unknowns’ experienced by the authors as baby barristers, and how we dealt with the proverbial litigation hand grenades.
Forfeiture applications under the Proceeds of Crime Act 2002, in my humble opinion, require some of the most detailed preparation work that a pupil or baby junior must do. Bundles are full of bank statements, spreadsheets and transaction histories and so, if you’re as maths-phobic as I am, just getting your head around the numbers can take a while. Add bitcoin transfers into the mix and you have yourself a very nervous pupil.
I had prepared for hours, familiarising myself with the legal framework and setting out my cross-examination with page references to the bundle. I caught the 6:30am train to make sure I was on time for my hearing. Upon arrival at court, adrenaline kicked in and I was totally focused on everything that I wanted to say. Then, at 9:35am, I was told by the usher that the interpreter (who had been booked for months) was not coming. Unsurprisingly, cross-examination required the respondent to be able to understand my questions and so this was a big problem for my case.
I discussed our options with my client who decided to settle instead of adjourn to a new date. This was accepted by the respondent. However, settlement will not always be an option and Plan B would have been to adjourn and start the long journey home.
So, what I learned is that missing interpreters can cause a lot of disruption to a case and that the organisation of them is key. Every new unknown unknown is worrying so early in one’s career. Stay calm, take instructions and communicate with the court – and you will discover that there is a solution.
There are innumerable ways in which bundles can cause problems for advocates and the court. At my first Closure Order application I turned up with my cross-examination prepared, as always, with references to specific pages in the bundle. I had anticipated a hard copy of the bundle being available to the respondent during the hearing.
Unfortunately, this was not the case. The only bundle available was the one brought along by the respondent themselves. It was a pile of loose, unpaginated papers. In order to effectively cross-examine, I had to ask the judge’s permission to find the correct page for the respondent ahead of each question. There was a lot of speed reading and paper shuffling involved.
I’ve learned that bundles can go wrong in all manner of ways and the lack of pagination can hinder a smooth cross-examination. The best approach I’ve found is to contact your solicitor in advance of any hearing and confirm that the person meeting you at court will bring paginated bundles with them.
As a civil law pupil doing hearings in the Magistrates’ Courts, nothing makes my heart sink faster than arriving at court to be told by an usher that my hearing is in the ‘remand court’. This means my courtroom has been allocated to deal with people brought into custody overnight and, since their liberty is at stake, these cases will be heard first. These lists are often long and can make you feel like you are sitting in standstill rush hour traffic. You are helpless to the fact that you just have to wait until the list is done and, even if your hearing was listed for 10am, you may find yourself waiting until after lunch to be called on.
On one occasion, I had an agreed Sexual Harm Prevention Order hearing, and the only points of disagreement were two terms of the order. I was sure this could be dealt with in 30 minutes. I asked the list caller if we could be slotted in at any point if there was a small gap between defendants, but I was told no. In total, I waited seven hours (arriving at 9am and being called on at 4pm).
There is not much one can do in this situation. Civil applications often get put to the bottom of the list. I learned that sometimes there is no solution to a problem and you just have to be patient. It also helps to be gracious to the court staff in the hope that they may find a gap in the list and slot in your case.
No matter how well prepared you are, the other party can always spring a surprise. This is particularly likely, and potentially problematic, with litigants in person. Early in my second six I was instructed to attend the first hearing in a Stalking Protection Order application. The case concerned a toxic relationship and acrimonious break-up between the defendant and their ex-partner. Service of the bundle could not be completed as the defendant was of ‘no fixed abode’ although they had received a court summons. I was doubtful that the defendant would attend court.
The defendant sprang two surprises. Firstly, they arrived. Secondly, they insisted they wanted to agree the full order to ‘get this all over with’. At face value this seemed an easy win for my client. However, on deeper consideration it was clear there were ethical issues presented by agreeing the order. The defendant had potential capacity issues arising from their mental illness. They had not received any legal advice and it was unclear whether they appreciated the full gravity of the order. I sought out the duty solicitor who agreed to represent the defendant in the hearing. The court ordered an adjournment and made an interim order to allow the defendant to have a capacity assessment and arrange legal aid for representation while ensuring my client secured the protection afforded by the interim order.
I had never countenanced that the defendant might agree the order. Litigants in person are perhaps the most bountiful source of ‘unknown unknowns’. This experience taught me the value of taking a step back when presented with a surprise and making sure to consider the full ramifications of every decision in litigation.
There are few things worse as a baby barrister than having all the pieces of the puzzle prepared but then a key witness is nowhere to be seen. This happened in my first week of practising. As the clock moved inexorably towards 10am my opponent was not-so-subtly suggesting that the application would have to be abandoned. I called my instructing solicitor and the witness but was unable to get through to either.
I have come to realise that this scenario is unspectacularly representative of the problems which arise when attending court. Almost all barristers will have plenty of similar experiences. As a very junior barrister, though, they can seem irresolvable. But of course, clients entrust counsel to find solutions to these problems. In this case, I was able to persuade the court to hear other matters first before finally getting through to my witness, who had broken down on the way to court without phone signal. The court agreed for the witness to give evidence from home via cloud video platform at the end of the day’s list. In subsequent cases, it has been possible to rely on witness statements as hearsay, to call other witnesses whose evidence may address a point in issue, or adjourn the case to future dates.
I learned that if you can provide as much information to the courts about a problem, that is usually a good starting point. After that, keeping a calm head under pressure and finding solutions are what clients expect from their barristers. I have no doubt I will continue to encounter new ways for life’s unexpected turns to affect litigation.
Unknown unknowns in the courtroom are infinite in their variety and less experienced barristers often find this element of advocacy to be one of the most challenging. It is a truism that you cannot prepare for every eventuality. These examples show just some of the ways cases can go wrong, and principles for how to keep the advocacy show on the road.
Unpredicted developments can be the most foreboding aspect of appearing at court. Paige Jones and Jack Palmer describe five such experiences as pupils – and what they learnt
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