Advocacy dos and don’ts for family lawyers

Developing your case theory

The starting point for successful advocacy is to set aside time to fully develop your case theory. The fast-paced world of family law doesn’t always allow much time to ponder it, but your case theory is the single most important thing you do as it serves as your blueprint from which you will construct your case and make decisions. The witnesses you call or cross-examine (or not), the points to take or set aside, and the approach to individual issues can all be guided by a well thought out case theory.

In short, the case theory is your version of the facts that you want the court to accept and which will lead to a successful outcome for your client. It must be credible, based on the evidence and internally consistent. It must also be short. Once you are clear on the case theory, distil it to a good three- or four-sentence summary that captures in a few words all the key elements. Often called an elevator pitch, if you can explain why you should win in about 30 seconds, you are on the right track. If you do this for every case you will soon notice your preparation for your advocacy takes on a new focus.

Don’t avoid grappling with weaker points

Your learned friends are looking for factors that are less favourable to your client’s case and are unlikely to miss them. Even if they do, the judge is likely to have picked up on them, especially having fully read the case.

Generally, there are three ways to deal with bad facts or your case weaknesses: strengthen, neutralise, or concede. For each weak point you have, you must analyse and determine what you will do.

• Strengthen: Adding context can make a world of a difference. If two or more of your witnesses have given contradictory evidence, that may appear detrimental to your case, but these inconsistencies can be framed as evidence that they had not rehearsed, and to the contrary if they had repeated the same words that would be problematic. Reframing makes it possible to transform the apparent weakness into a stronger argument.
• Neutralise: Use language to humanise and sympathetically reframe the weakness. Avoid providing justification for bad behaviour and instead look to explain logical reasons why actions were or were not taken.
• Concede: Unfortunately, not every unfavourable point can be resolved. There will be some that you simply have to concede, which will give you credibility as you are not chasing weak points.

Do practice

The outcome of court hearings can be life-changing for our clients. Their money, relationships, and families can be at stake. But often we as lawyers work so hard preparing out cases that perfecting our performance falls by the wayside. We just don’t have time to practice. The reality is, without practicing what we will say or even how we will say it, the first time we utter those crucial words that are intended to make a difference for our client – will be in court. A risky game to play. Practicing allows you to refine your advocacy and perfect your performance. The world won’t end if you don’t, but you won’t be your best either.

Don’t tell, show

You can increase evidential impact by focusing on the detail rather than using generalised descriptions. Often words such as “abusive” or “aggressive” have different meanings for different people, ranging from insults to more serious physical violence. To ensure everyone will agree, spend time drawing out the facts. Compare:

“He was verbally abusive and threatening to me on my birthday, which our 4-year-old daughter saw and heard. She was upset by it for some time.”

And:

“On my birthday he called me a ‘stupid cow’ and said ‘you’re lucky it’s your birthday or I’d let you have it’, whilst punching his fist into his open palm. He wasn’t shouting but we were only a foot or two apart and he was speaking loudly. Beatrice was in the room a few metres away and saw and heard him. After he left the room she came running up to me and was wide-eyed and asked ‘Is daddy going to hit you?’ She repeated this question a few times in the days that followed.”

“Showing” is just as powerful in written form or in oral evidence. Detailed facts can also be used to convey a sense of time instead of a series of dates without context. Consider:

“Having agreed the summer holiday plans with the father in writing on 17 April, on 24 July I received an email saying that I would have to cancel our trip overseas. This was the first time any objection was raised.”

And:

“We had agreed the summer holiday plans shortly after Easter. It was not until over three months later, on the day I was collecting the children from their last day of school, that their father raised his objections.”

Do exploit headings

Your headings are also tools for persuasion, so use them to your advantage. Simple labels like “Summary”, “Facts”, and “Conclusion” do little to persuade your reader. In written form they should reinforce your logical structure and key points.

And compare:

“Substance misuse” v “My abstinence and engagement with support services”

“Mental health” v “My consistent treatment and improved mental health”

 You can go further by including arguments within your headings. By just glancing at the document, the judge should be able to see exactly why you should succeed and the headings can answer key questions they may have.

Some examples using arguments:

“The importance to Abby of both her parents”

“Addressing mother’s failure to properly involve father in Abby’s life”

“An equal footing in respect of Abby travelling abroad”

“A shared lives-with order is positive even without an equal division of time”

“A specific issue order to achieve the same effect is a less good option”

Don’t add a preamble to your questions in examination-in-chief or cross-examination

Signposting is one thing but there is no need to set out your position on an issue before each question. You can avoid this by getting straight to the point and asking a direct question. Like this paragraph, keep questions short and succinct. Your tribunal will thank you.

Do use simple and plain language

All the great writers of advocacy technique (Larry Posner & Roger Dodd, Keith Evans KC, Ian Morley KC, and legal writing heavyweight Ross Guberman) are agreed on one thing: The use of plain and simple language. Advocacy is about communication and it is essential that everyone understands you.

Legalese, jargon, and complicated words allow witnesses to avoid answering your question directly by claiming to not understand your question. Or you may be drawn into quibble about definitions or asked to provide a definition yourself. This can easily be avoided with the use of plain words.

Compare: “I did not fully comprehend the psychiatrist’s report immediately, but now I accept the diagnosis is correct and that I need therapeutic support.”

With: “I didn’t get it when I read the report but it started to sink in and now I see myself in quite a few of the descriptions. I want to change and I need help to.”

Or: “When did you procure the pre-marriage asset?” v “When did you buy the flat?”

Of course, we should be careful not to oversimplify, as this undermines and can at times misrepresent the point being made. Proper simplification aids and furthers understanding.

Don’t use lengthy block quotes from judgments in written documents

Distil and convey only what is relevant. Any reader will be able to immediately grasp the point made with this neat use of case law: “See Re H [1996] AC 563 at 585F (finding ‘likely’ in s31(2) does not mean ‘more likely than not’; rather, it means ‘a real possibility, a possibility that cannot sensibly be ignored’).”

Make the link between the law and your case obvious. Ask and answer these questions:

• Can you integrate the keywords of the statute/case law into your sentence(s)?
• Are the parties in the same position as the parties in the authority?
• Can you explain why the quote is relevant?

Some examples of using law well:

The respondent and I are “associated persons” because we had an intimate personal relationship which was of significant duration [FLA 1996 s62(3)(ea)].

The respondent here, like the unsuccessful appellant Mr Grubb, notes that there was no violence, no likelihood of “significant” harm, and says that an occupation order is a premature rearrangement of the family’s residential arrangements pending financial relief proceedings. Like Wilson LJ, this court may reject those arguments and approve the order pursuant to its discretion under s33(6) [Grubb v Grubb [2009] EWCA Civ 976].

The well-known passage of Hedley J in Re L is particularly relevant here because of the children’s consistently acceptable physical and emotional presentation, notwithstanding the parents’ accepted inadequacies: “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent […] and it is not the provenance of the state to spare children all the consequences of defective parenting.”

With thanks to Justin Tadros for his collaboration in an earlier version of this topic.