Christopher McNall was delighted to have been asked to speak to the students at the British Law Centre at the University of Warsaw recently about his experiences of advocacy – both as a producer and consumer. Here are some of his thoughts and notes from the lectures…
The art of persuasion is not easy. I have been doing it for 15 years now, and wrote some thoughts on advocacy on the 15th anniversary of arriving as a pupil at 18 St John Street Chambers.
In September 1994, aged 22, I moved fresh from college to Warsaw to teach at the British Centre for English and European Legal Studies. I went as part of a programme organised by the Civic Education Project in the US which aimed to assist, through education, the development of democratic thought and institutions in the the former Soviet-bloc countries of Central and Eastern Europe. At the time, the past still had a strong hold on Poland: the Berlin Wall had been down for less than 5 years.
After 2 challenging but enjoyable years in Poland, I came back to the UK, but was pleased to have remained in touch with Warsaw University. I am proud that many of my students went on to hold high office in Poland and the European Union – as lawyers, judges, ambassadors, ministers, and even an Advocate-General.
The Centre’s present director, Dr Steve Terrett, invited me to give some lectures this year to the group of students (about 80 strong) about judicial review, and about advocacy. We planned to do them face to face but ended up doing them remotely. It was fun to be doing some teaching again.
Here is a summary of some of the advice given…
15 lessons from 15 years
15 years have flown by since I arrived at 18 St John Street Chambers as a pupil in September 2005. Life at the Bar is a learning experience, and I have learned a lot – not only from my colleagues, but also from each and every opponent I have been ‘against’, and each and every judge I have appeared ‘before’. I have had many unexpected experiences – some terrific (e.g.winning in the Court of Appeal) and some terrible (e.g. losing in the Court of Appeal).
I wanted to try and capture some of my non-binding thoughts about the work of a barrister:
- Don’t try and piece together a case from scraps and tatters of evidence. You will lose.
- Don’t be too confident that your apparently fantastic case will survive trial: the Law Reports are the charts of the wrecks of unsinkable cases (Sir Robert Megarry).
- Litigation risk is unavoidable – the risk of the unexpected question, and the unexpected answer. Factor it into everything you do in the case.
- Is this really fit for court at all? Every case involves a problem; but not every problem involves a case (HHJ Nicholas Chambers QC – from his fantastic book, ‘Case Management: a view from the Bench’ – proceeds to the BBF)
- Never go to Court without a Skeleton Argument, no matter how skeletal. Writing it helps you get your thoughts in order.
- The one reliable feature in all cases is linear time – always do a chronology, no matter how short. It will allow you (most of the time) to distinguish cause from effect.
- Your opponent – solicitor, barrister, litigant in person – is in the same boat as you, and just trying to do their best for their client and case in trying circumstances: go easy on the person, and hard on the problem (I now shudder at some of the trivial spats I had with opponents in my early years at the Bar).
- Always keep a careful note – you never know when the recording equipment will break down.
- Help the judge as much as you can – they are trying to do their best as well. What are you asking them to decide, and why? Can you get it down to one sentence?
- Be nice in cross-examination – the other side’s witness already thinks you are trying to catch them out.
- You will catch more flies with honey than with vinegar. No case was ever won through being unpleasant to a witness.
- Open questions in cross-examination can be far more disarming and useful than closed ones.
- If you put your case at the beginning of cross-examination, you won’t have to remember to do it at the end (and you might find a witness, in a moment of candour, and before they have settled in, agreeing with you).
- No case was ever won in re-examination or in closing submissions.
- If you are instructed in an area of law which is new to you, and you are not comfortable that you have the time to do the prep, have the confidence to say so and to return instructions. There are always plenty of other barristers.
- Be yourself.
Christopher specialises in disputes about tenanted and freehold farms and land (and especially agricultural tenancies under the Agricultural Holdings Act 1986), taxation (especially of agricultural land), proprietary estoppel, and inheritance.
He has appeared in many leading agricultural and tax cases in the Court of Appeal, the High Court, the Agricultural Lands Tribunal, and the First-tier Tribunal. He is Chairperson of the Agricultural Lands Tribunal for Wales, a Deputy District Judge, and a fee-paid Judge of the Tax and Property Chambers of the First-tier Tribunal.
Christopher was Consultant Editor for the ‘Agricultural Holdings and Allotments’ title in the 2018 edition of Halsbury’s Laws of England and writes the ‘View from the Bar’ column for the Agricultural and Rural Affairs section of Practical Law. His book, ‘A Practical Guide to Agricultural Law and Tenancies’, was published recently.