Financial Remedy Cases: Effective Advocacy in Proceedings

Here are some pointers as a starter for ten…

1. Preparation is key—if you know your case, you cannot trip up. Do not under prepare as you will do yourself a disservice, along with your client.
2. Do your research and know your case law! In financial remedy proceedings, you will need this to back up the legal principles and make a more persuasive argument, particularly using MCA 1973. Case law can be overwhelming given the very detailed content, but focus on the main points/judgment and search for any sections that directly relate to your argument.
3. Use your common sense. The law is there to guide you, but greatly consider the reality of the situation. For example, if your client wants the matrimonial home, is on a low income, and cannot obtain a mortgage, can they afford it? What are their options, and what can they work with?

A starting point: advocacy basics in financial remedy proceedings

• Do not rush your advocacy in fear of getting your points out. Slow down, record yourself for practice and see how you flow. 
• Do not say something for the sake of it or to sound clever. Be user friendly and be guided by the Judge if unsure.
• Do not speak over the Judge or anybody else at Court. It is tempting to get your points across quickly or when nervous, but listening is key. You will all be given opportunity. 
• Do not be afraid to speak up if you have missed a point you wished to make earlier, as long as it will assist the Court. 
• Do not ask a question to which you do not know the answer! 
• Do not EVER mislead the Court. If you are unsure or do not know the answer, say so or request permission to speak with your client. Honesty is the best policy!

Case and client care basics

• Opening at Court: Do not focus on the difficulties, particularly if there is progression between the parties. It will not assist the Court but will frustrate the Judge.
• Tell the Court what your client wants and how you hope to achieve it. Even if you know you have zero chance, put the instructions of the client to the Court (within reason). 
• Highlight the issues you wish to address in turn and a solution alongside it or options.
• Watch the Judge and gain an indication of how you put your case to them. If the Judge is not on your side or does not want to hear any further, do not press them. It will only serve to frustrate them further. Therefore, think about how to get a valid point across clearly and briefly. 
• Do not have a strict script. By all means, write out your points or headings, but know where you are and where you are going with your points.

Advocacy, Cross examination and Witness handling

• Examination in chief – asking questions of your own witness.
  • Allow the witness to settle on the stand.
  • Do not repeat their S25 narrative statement, be concise and to the point and do not lead with questioning.
  • Start questions with the words ‘what’ ‘when’ ‘where’ ‘why’ ‘please can you tell the Court’ ‘please can you describe’. 
  • Only ask questions if you really need to. If it is self-explanatory in their statements etc, refer the Judge to this. They should have read the papers!

• Cross Examination: the purpose is to elicit helpful facts for the Court and your client.
  • Try not to have a strict script of questioning. Many solicitors and barristers do write out each question, and if so, just ensure you can keep track and keep a flow.
  • Keep your pen on the page of each question/heading when cross examining because if you are interrupted or the Judge asks a question, you may lose your way. The aim is to ask ‘yes’ and ‘no’ questions.
  • Focus on the S25 Narrative statement of the opponent, any discrepancies, lack of evidence/disclosure to back up their settlement offer/claim and which helps your client.

Re-examination: Only use if an issue really needs to be addressed or you need to clarify a point. 

• Be pleasant and courteous. It is not television and we do not need to go in there on a mission. Cross examination can become difficult, particularly with difficult witnesses and we do need to ask tough questions, but keep a calm and professional manner. It will serve your case and client better. 
• Ensure your questions take the case somewhere, do not just ask a question for the sake of it.
• Ask one question at a time.
• Consider the points/issues you want to raise/focus on and tick them off along the way.
• If you have a difficult case and know you are on a back foot, get your point across swiftly and clearly: stand up, speak up and shut up! If you know your client will fail, still give it your best. Don’t be repetitive however or ask irrelevant questions that do not assist. 
• Build up your client’s case. Paint a picture to the Court to make your case more effective using any strengths you have. 

Closing submissions in financial remedy cases 

• This is a chance to showcase your points and analysis of the witnesses/outline a persuasive argument. Tailor your case and outline your conclusion/theory and any evidence you have to back it up.
• Ensure your points (usually bullet points) have form and direction. Use measured language to get points across. 
• Do not add in any new evidence. 
• Pick out the most relevant points for persuasive argument. Highlight the outcome you want and why your client should get it. Outline any relevant case law/bundle references. The Court will ask you for this so be prepared. 

The above is a starting point. Everybody adopts their own style over time with experience and practice.  

Written by Kim Okell, Consultant Barrister.