Thinking like a lawyer
This was first published on bptclecturer.com in September 2016
Suits are being pressed, shoes polished and large wheeled trolley cases readied as students across the country prepare to start the Bar Professional Training Course this week. There is much debate amongst the wider legal community as to the cost, efficacy and need for a BPTC. That debate is for others, elsewhere. In this post I look at the course as it currently exists and how students can use it to become better lawyers. In a break from the norm, I have sought expert guidance from other advocates and included their top tips.
Over the years I’ve seen students who are fiercely intelligent but struggled with aspects of the BPTC. Only this summer a student told me that it took almost the entire first term to work out how to properly dissect a brief. If you’re starting the BPTC this week or perhaps are at an earlier stage of your legal career and want to get a head start on having the right mindset then read on. Now is the time to start thinking like a lawyer.
1. ACCEPT FEEDBACK
Learning to accept feedback can be difficult. You may have no previous experience of receiving oral feedback in front of your peers. Or it may be that you are used to feedback that is only ever positive. Regardless, it’s an adjustment and one that you need to get used to quickly. Feedback is often see as a list of criticisms. That’s not what it is or should be. Good feedback will be explain why you need to improve and explain how.
My standing instructions to students remains:
Don’t let me give you the same piece of feedback twice
Fixing one issue might bring to the fore another. The only way to get to that subsequent issue is to fix the first point so that we can move on.
Tutors notice the difference between students who are listening during feedback and those who are not. Those who take a moment to read written feedback handed to them and those who shove it straight in their bag when it’s handed to them. When you are frustrated by a lack of progress in a subject, ask yourself honestly whether you are using your feedback effectively?
2. EVERY WORD MATTERS
It wouldn’t take too long to find a case determined by the meaning of a single word. Every word you use matters. You will quite quickly find that a tutor comments on single word that you use in a document, classroom answer or advocacy performance as being inaccurate or incorrect. At first it may seem picky rather than helpful but take a moment to consider the difference between the word you used and the one they suggest you use instead. Do you understand the difference? A single letter might make all the difference. As I’ve said more than once:
Quash is what you can do to an indictment. Squash (cubed and roasted) makes a wonderful addition to a risotto.
That may sound silly and/or extreme but mark schemes are often prescriptive, MCQ answers can look very similar and one day you might need to say this in court. Probably best to get into good habits now.
3. UNDERSTAND THE LOGIC
AND vs. OR
MAY vs. MUST
CONJUNCTIVE TEST vs. DISJUNCTIVE TEST
Legislation, procedure rules and the principle derived from an authority often use the words above. Preparing submissions or drafting a document on the wrong basis gives a poor impression of your attention to detail. At best, it can leave you trying to prove more than you need, at worst, the catastrophe (and potential negligence) of only seeking to prove one limb of a test when you need to prove several. Moreover, the words aren’t interchangeable.
4. PREPARATION
One of the biggest differences between the BPTC and undergraduate study according to many of my former students, is the sheer quantity of material that you need to read every week. It’s not uncommon to have to read large chunks of dense and not easily digestible practitioner texts each week. Like a bad cake (dense, not easily digestible) they might leave you feeling queasy and in need of a lie down but you need to read those pages and then more next week.
The first point is perhaps obvious, but bears repeating: set aside sufficient time to read that quantity of material and make notes. You won’t read and process 30 pages of the White Book in 10 minutes.
Second, make revision notes now. You’ll struggle to find time to re-read all of the material so make your first note a revision note. Use your seminars and post class consolidation to hone that note.
Third, you won’t be spoonfed information. Tutors won’t read out answers because that won’t help you learn and apply a skill (see more in point 5 below).
Unsurprisingly, the topic of preparation elicited lots from practitioners.
Andrew Keogh, a Barrister who runs CrimeLine Complete (@Crimelinelaw) said:
Time spent mastering legal research skills will pay handsome dividends, both during the course and in professional practice. Whilst colleagues are always there to offer advice and assistance, it is expected that a valiant attempt at finding the answer has already been made. Common sense dictates that the scenario you face, whilst unique to you, is very unlikely to be presenting itself for the first time, so the answer will lie in the texts and databases, provided you know how to effectively search for it.
Ben Hargreaves (Barrister, Carmelite Chambers) added:
A well known and respected Silk once said, whilst they may not be the cleverest or the best lawyer, they will always be the best prepared in any court room. If that’s their attitude then it has to be yours.
The Secret Barrister (@BarristerSecret) said:
There is no such thing as a straightforward mention. Often the most ostensibly short and simple hearings are those where the darkest, most fiendish questions of law or procedure arise. Don’t fall into the trap of assuming that any case will be easy. Your clerks will tell you, “It’s just a straightforward mention, sir.” It won’t be. Make sure you’re fully prepared for the issues that might arise.
Several Barristers agreed that going to court regularly was mandatory and not optional preparation. Get a feel for how things work in court. Don’t mimic the advocates that you see but understand the pace and rhythm of a court room. (I liken students who don’t go to court with people who audition for the X-Factor seemingly never having heard the song [or in some cases, the very concept of music] and catawalling something that is painful to listen to)
All this preparation takes time so Barton Bank (@BartonBank) offers this advice:
Learn how to scan read.
Yes, but make sure it all goes in!
5. LEARN THE PROCESS INSTEAD OF MEMORISING ANSWERS
In an assessment you’ll need to apply the knowledge and skills that you have gained during the course to a specific fact pattern. The key to success here is to understand the process, not memorising the answer to a particular question. Knowledge without application is useless. Anyone can look the law up and perhaps understand what the words mean. A lawyer understands how to apply it.
6. USE YOUR COMMON SENSE
The law isn’t just about the law, it involves people as some of the exhibits I’ve seen in the past demonstrate, people do the strangest things. A good lawyer will stop to take the time to think about the practicalities of a situation and use their common sense. A great lawyer will do it without thinking. The law can sometimes blind you what would otherwise be obvious. How could the man see the cat and his speedometer at the same crucial point? Save with the assistance of a jetpack, how can someone be in place X and then place Y, 5 miles away, just 5 minutes later?
Sense check what you have drafted. Consider the bigger picture. CrimeGirl (@CrimeGirl) offers this sage advice:
Consider all possible sides of an argument before forming an opinion. For example, when reading a news article, remember that it was written by a single human being and therefore will comprise, however minutely, an element of personal bias as well as global bias of the publication within which it is included. Read around the subject, look for supportive pieces but look too for evidence that it is wrong. Never assume what you are being told is correct, simply because it is being told in an authoritative way. This approach can equally be applied to posts shared on social media that purport to present a fact or set of facts on a subject. Doing a little research about the post before sharing it (or deciding not to) will leave you better informed and more adequately able to assess the value of information in front of you. Taking this approach to information will set you up very well for practice.
A number of Barristers were keen to point out the importance of trusting your judgement and the fine line between standing your ground and conceding where necessary. This comes with time and learning by doing both on the course and in court.
Finally, an anonymous Barrister at a chancery set offers these wise words:
Do a cost-benefit analysis of any steps you’re recommending: not just monetary cost, but emotional strain, the potential for ongoing relationships, etc. Your client might have a decent chance of getting their neighbour’s balcony knocked down/forcing their sibling to repay a pay thousand quid from your parents’ estate/whatever vendetta they have in mind, but will it really be worth it?
7. WHAT ARE THE ISSUES?
When you’re answering a problem question, advising a client or making submissions is to define what the issues are. What does the court need to resolve in order to reach judgment? Be it ingredients of an offence or the elements of a tort, start with a list of everything and then divide it into those in dispute and those not. This will not only focus your mind on what you need to prove/defend but it assists the Judge in knowing that the parties are making submissions on the same heads of dispute.
The cryptically named Cf (@__crimfan__) is keen on this:
Working out what the REAL bone of contention is and getting to that point directly, without additional faffing. Thinking of weakest points in own argument and how you would respond if challenged on them. Drawing sensible analogies to other areas of the law to strengthen intuitive pull of your argument.
8. WHAT’S YOUR PROPOSITION?
Sportspeople say “You know”, Politicians “Look” and “Let me be clear”. Fictitious lawyers say “I put it to you”. A good advocate cuts the verbal doodling and gets to the point by telling the court what they have to say in clear and concise terms. At the start of each point in an oral submission you need to tell the Judge what it is that you want them to agree with. Consider the difference:
My Lord, you know, I think that the defendant has, you know, if we look at the evidence, you know and there is lots of evidence in the bundle. He has tried to make sure that the case has been clearly put and has four good points you know, that’s what he has done. So to be clear, that’s my submission. I put it to the court that judgment has to be set aside.
Versus
My Lord, I submit that judgment in default be set aside because the defendant has a real prospect of defending the claim. I have four substantive points and turn to the first…
A clear active proposition tells the court what you want them to find. Why should they? That’s the next point below.
9. WHERE IS THE EVIDENCE?
Now that you have a set of propositions you need to support them with evidence. Judges love evidence. Can’t get enough of it. Bald assertions make Judges cross. Replace the word ‘Judge’ with ‘Tutor’ and the same is true on the BPTC. There is a real skill in going through a brief and finding everything that supports your case and/or weakens the other side. Each of these nuggets of evidence is capable of supporting one of your propositions.
James Turner QC (The one at 1KBW, there are two Silks called James Turner, plenty more Silks with the surname Turner and a many, many called James. This one can be found here: @JamesTurner37) succinctly puts it thus:
Use a rigorously logical approach to the development of an argument from basic facts and propositions.
Your analysis of the evidence must be accurate both legally and factually. Evidence either exists or it doesn’t. If it does, then it has a weight which can range from worthless to crushing. Don’t confuse the two concepts. I bristle when I hear a student say “There’s no evidence of X” when what they actually mean is that there is some evidence, but they want you to give it little or no weight. If Man 1 and Man 2 are in a room together and Man 1 punches Man 2 with no witnesses, CCTV or cameraphone recording then it’s inaccurate to say that there is no evidence of Man 1 punching Man 2. What you might mean is that there is no independent evidence or because Man 2 is a chronic liar, that Man 2 is not capable of belief and therefore little weight should be placed on his evidence. Nuance and accuracy are your friend.
Gareth Weetman (@Barrister7) helpful addresses the level of detail that you need to descend into.
“Assume nothing and question everything”, which sounds so blindingly obvious but I’m consistently struck by how otherwise talented lawyers overlook a vital point by failing to ask themselves a basic question. So from a criminal perspective, it might be the likes of “Was the arrest/warrant lawful? Is each and every assertion on which the Crown case is based properly admissible? How old was the D on the date of the offence, conviction and sentence, and does that alter the court’s approach? Etc etc etc”. Civil includes such questions as “Is this precisely the right Defendant entity? Was service valid? Is the expert report fully compliant? Are the regulations relied upon EXACTLY as they were on the relevant alleged breach date?”. We can all fall into the easy trap of quickly rushing to the obvious and main issue in a case without asking the simple preliminary ones first. If they get into this habit early on it will serve them well.
10. SAY IT OUT LOUD
For the oral skills there’s a fine line between rehearsing your submissions or questions to a witness so that you get a feel for what works and over-rehearsal to the point where in class it sounds stale. I would suggest that saying things out loud at least once is the verbal equivalent of proofreading written work. Nobody wants to ask a witness:
On a scale of 1-10, what’s your favourite colour of the alphabet?
On a more sensible note, Gerard McDermott QC (@McDermottQC) has two important messages:
Always, always think “how will this unfold in Court” And when on your feet “if I were the judge what would I want to know and hear. Try and imagine how things look and sound to a judge”
11. KEEP IT SIMPLE
The most impressive lawyers use a few careful words to make their point. The language is simple and as a result, the level of comprehension by those listening, high and reached quickly.
Sean Jones QC (@seanjonesqc) shows us why he’s in Silk:
I think we have a mindset that likes to test propositions. We ask ourselves “what if?” a lot. What if this fact were different? Would my answer still hold good? Another habit of thought is trying always to find the easiest way of putting something: Reducing ideas to their basics. That same need to explain and convince also means lawyers rely heavily on analogies.
12. BE YOURSELF
Most students start the BPTC thinking that they have to sound like a lawyer and so alter their vocabulary and/or voice to sound like what they think a Barrister to be. It’s awkward and unnecessary. You don’t need to sound like Martha Costello, Kavanaugh QC or Rumpole* (*delete according to age) and indeed you shouldn’t. You need to sound like you. The last word goes to @CrimBarrister who says:
My top tip is: be yourself. Especially if you have a background, like me, which is non legal and slightly unusual. Professional and lay clients will remember you, and juries will often find it easier to relate to you than to someone who has never worked in the ‘real world’. Though whether the music business and journalism could be described as the ‘real world’ is debatable!
I hope you enjoy your time on the BPTC and for those who make it, pupillage and beyond.
One of the contributions on here was from Sean Jones QC, a Silk who started a fundraising campaign last year called Billable Hour. The funds raised go to Save the Children’s work with refugees. If you’ve enjoyed reading this blog post I wonder if you might consider donating something however big or small to one of the most vulnerable groups in society. More here: Billable Hour 2016