- •Lecture 6. Preparing for trial and the trial.
- •Introduction.
- •6.1. Complying with court orders.
- •6.2.1 Evidence of the facts
- •6.2.1.1 Hearsay evidence
- •6.2.1.2 Notice to admit facts
- •6.2.1.3 Witnesses
- •6.2.1.4. Witness summonses and expert witnesses.
- •6.3 Production of original documents.
- •6.4 Computations in damages claims.
- •6.5 Listing of cases.
- •6.6 Trial timetables.
- •6.7 Trial bundles.
- •6.7.1 Contents of the trial bundle.
- •6.8 Skeleton arguments.
- •6.9 Final negotiations.
- •6.10. Using counsel.
- •6.10.1. Conference with counsel.
- •6.10.2 Conferences with expert witnesses
- •6.10.3. Briefing counsel.
- •6.10.3.1. Delivering the brief.
- •6.10.3.2 Contents of the brief
- •6.10.4. Where the counsel of choice is unavailable.
- •6.10.5. Counsel's fee.
- •6.10.6. The last conference.
- •The Trial.
- •1. Preliminary matters.
- •2. The day of the trial.
- •3. The trial and case management
- •4. The course of the trial.
- •4.1. Counsel for the claimant's opening speech.
- •4.2. The evidence of the claimant and witnesses.
- •4.3 Submission of 'no case to answer'
- •4.4 The defence and closing speeches.
- •4.5 Parties added under the Part 20 procedure.
- •4.6. Judgment
- •5. Further applications.
- •5.1. Interest on damages.
- •5.2. Where there has been a Part 36 payment into court or offer.
- •5.3. Interim payments and the recoupment of damages.
- •5.4. Costs.
- •5.5. Stay of execution.
- •6. Drawing up the judgment
6.10. Using counsel.
6.10.1. Conference with counsel.
It will commonly be the case that a conference with counsel will be arranged not long before the trial. Usually, in civil litigation, a client will not have seen his own barrister until this late stage, all other matters having passed between barrister and solicitor in written form. If the facts remain seriously in dispute on either liability or quantum, it is common to arrange a conference with the client present. The barrister will probe the contested parts of his client's story, suggesting to him the way in which he will be cross-examined about it and looking for his response to likely questions. He may want to explain to the claimant why he gave written advice at earlier stages to refuse offers or payments into court, and answer questions from the client about the possible difficulties to be faced and the prospects of success.
Quite often such a conference is in two parts, the first with the client present and the second with the solicitor alone, the client usually having been told there are legal matters to be discussed which would bore him. Once the client has left the barrister may then give the solicitor further advice about the client's prospects, e.g., if the client, under close questioning, has seemed to be evasive, or clearly gaping holes or improbabilities have appeared in his account of what happened. It may be that in the light of seeing how the client has performed as a witness, even in the limited context of a conference in a private room, the barrister will firmly urge the solicitor to accept some offer that has been made, or to see whether any improved offer can be obtained before the delivery of briefs for trial.
6.10.2 Conferences with expert witnesses
Until 1995 barristers were not permitted to see witnesses of fact before trial in order, supposedly, to preserve their detachment. Following a change in the rules of professional conduct, barristers are now permitted to see witnesses of fact, although cases in which barristers will request to see witnesses of fact before the trial will probably remain rare until a settled practice is established at the Bar. Barristers have, however, always been permitted to see expert witnesses and it may well be helpful to arrange a conference with expert witnesses if there are substantial disputes concerning expert evidence.
The expert in the case normally attends the barrister's chambers for the conference, although increasingly such conferences can take place in the solicitor's offices where sometimes the accommodation is rather better. The purpose of the conference is for counsel to ask detailed questions about the expert's views, e.g., in a personal injury case about the prognosis of the claimant, or to seek clarification of the matters in the consultant's or his opponent's report and ask for ammunition from the consultant about lines of cross-examination to take with the opposing expert.
6.10.3. Briefing counsel.
6.10.3.1. Delivering the brief.
The solicitor should prepare a brief for the counsel who has been involved in the case hitherto. A brief should generally be delivered not so late that counsel cannot prepare the case thoroughly, nor so early that the brief cannot take account of new developments, e.g., offers made at a late stage. When a solicitor chooses to deliver a brief is very much a matter of feel but in a substantial action at least a month before the date of trial is thought to be the minimum. Counsel's clerk should be contacted very much earlier than this, however, to be told to expect the brief and to confirm counsel's availability; he may then be involved in using his powers of persuasion with the listing officer to ensure that within its 'window' the case comes into the list at a time convenient for the counsel concerned. The other side should be notified that one is about to deliver a brief because the brief fee becomes payable upon its delivery, even if the case is settled immediately thereafter. This is therefore a powerful final incentive to the opposing party to consider settling since a very heavy disbursement is about to be incurred on the claimant's side for which the defendant will be liable if he loses or settles later. In fact, despite this rule, if the case is settled shortly after delivery of the brief and before counsel has commenced work on it, it is usual to negotiate a reduction in the brief fee with counsel's clerk.