Direct Access ClientsDisputo ergo sum: I submit therefore I am

January 14, 20180

A short post on why barristers in court make “submissions” rather than telling the judge what they think.

When I underwent my induction into the world of mooting and when I received advocacy training at law school, one of the first points drummed into us was that your arguments are to be introduced with “I submit that…” not “I think that…”

Now that I am an advocacy trainer myself (and the quality of the trainees’ advocacy is often strikingly good) I sometimes find myself making the same point.

I often feel that when the non-lawyers in court repeatedly hear the advocates “respectfully submitting” their points, they must find the language highly artificial and perhaps suspect that it is deliberately intended to exclude them.

More senior advocates tend to use more varied language, which still reflects that they are making an argument, rather than expressing an opinion: “I suggest/we say etc

After years of conditioning ourselves against expressing our thoughts, or perhaps just after years of parroting the same phrases, all barristers inwardly wince when an opponent starts telling the Judge why he “thinks” an argument is wrong.

Of course we all make slips of the tongue and those can be easily forgiven, although sympathy wears thin if the advocate appears oblivious to a recurrent fault.

If I catch myself straying into telling the court what I think, I will always apologise, and sometimes try to style it out by explaining that of course I am not expressing a personal opinion, merely seeking to express what must be the objective assessment; which usually draws a wry smile.

Although an advocate is most obviously expressing an opinion when their sentence starts with “I think” or a cognate, there are more subtle or insidious formulations. For example when slipping in an adjective like “unfortunately”.

No one ever objects to a sentiment like “unfortunately the Claimant died last year”; it would be churlish to do so, and perhaps this can be rationalised by saying that since sympathy so obviously arises in such a situation, the advocate is only reflecting the objective viewpoint of any observer.

However, such descriptive adjectives/adverbs can be objectionable in my view: for example “regrettably my client did not respond to that letter”. If this means that the client regrets it, that’s fine, but it is not for the advocate to say how he feels about it.

The principle was previously formalised by rule 708 of the Bar Code of Conduct: “ A barrister…must not unless invited to do so by the Court or when appearing before a tribunal where it is his duty to do so assert a personal opinion of the facts or the law

This is now reproduced in the similar but not identical rule C7 of the BSB Handbook: “You must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.”

As an aside, it is not immediately clear to me how situations could occur in which a barrister appearing as an advocate is required by law to put forward a personal opinion to the court.

Just imagine: “In my submission the witness’ evidence on this point was demonstrably false, and what’s more, as I am required to say pursuant to s592 of the Act, it was the biggest load of twaddle I have ever heard”.

When you contemplate candid opinions like that, you can start to see why it is not going to be helpful for advocates to start expressing their personal opinions and how it could somewhat lower the tone.

Related to that point, it is the function of the judge (or jury) to decide the case, and his or her (or their) opinion is the only one that counts: the opinion of the factual or expert witnesses is relevant, but the judge is free not to accept it. He or she certainly won’t be swayed by the advocate’s opinion.

But more importantly, at the heart of the rule is the principle that barristers must be independent from their clients.

Except in certain situations (eg with direct access clients) barristers are required to follow what is referred to as the cab rank rule, which strictly, in the days of Uber etc should be the “Licensed Hackney Carriage Rule”

We all know that a taxi driver with his/her light on must accept any customer, albeit that punters wanting to go south of the river after midnight can apparently be more difficult to spot.

Similarly barristers are subject to rule C29 of the BSB Handbook, which requires them to accept a client’s instructions irrespective of a number of matters, including any belief or opinion they may have formed as to “the character, reputation, cause, conduct, guilt or innocence of the client”.

That is an important protection for clients: even the repugnant client, or the client with the unappealing case, who may be most in need, are assured (as long as they can afford it) of being able to find legal representation by a barrister.

It is also an important protection and benefit for barristers: they should not be criticised or disliked for taking on clients or cases for which the critics have no affection, since the barristers can say that it was not something in which they had any choice.

The quid pro quo is that barristers should avoid stating their personal opinions in court, or they risk, echoing Descartes’ formulation, being defined by what they think.

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