With thanks to Mark Anderson for use of his cartoon https://www.andertoons.com/
After 37 years of practice at the Bar – out of touch? I hope not as much as you would expect. Moved with the times? Now, here you can judge.
Today’s blog concerns family court advocacy.
I have not always been a family practitioner. There was a time – up to 1997 – when my practice involved largely criminal defence and regulatory work. After a diet of inner and outer London Crown Courts, and of course, the Central Criminal Court, I moved to the North Eastern Circuit to spend my time in the Crown Courts of Yorkshire. It follows that my advocacy skills were seated in the demands and honed by the constraints of plain speaking criminal advocacy.
The process was simple. Examination involved asking questions. Non-leading questions. The simpler, the better. Each question could, and frequently was prefaced with the words “who, what, where, when, how, why”. The aim of the question was to elicit a reply, and the reply was the evidence. Oral evidence was the currency of the court.
Cross examination permitted leading questions – where a direction or suggested answer occurs naturally within the question. Previous inconsistent statements could be put to a witness and tested by questioning – “here, you said ‘a’; now you say ‘b’; why the difference?”
Beyond those simple rules, we did not stray. To do so would result in the judge stopping line of questioning and the defective question prevented. Save for older silks, most complied, and we got along fine.
Whilst the admissibility of affidavits and statutory declarations has always been permitted, there came a time when pre-prepared statements were encouraged, and later required. In civil proceedings, the statements were to stand as the witness’ evidence, and it would be on their written statement that they would be tested in cross examination.
As a process, this lasted ‘but five judicial minutes in a long legal landscape’. Advocates used the statements to prepare the ground, rather than setting it. So it is rare today that witnesses are called and tendered on the basis of their written statement. Instead, advocates track through already deposed facts and recollections, and judges sit silently permitting this to happen, as if they hear the revelation for the first time.
But the main current transgression in advocacy skills, is the use by advocates of ‘comment’ dressed elaborately as a question. We all know that there is a massive difference between questions, assertions and comments. The first is designed to elicit evidence, and the others are an argumentative measure of the questioner’s opinion.
Habitually in family courts, lines of questioning are loaded with comment, or flung at witnessed as assertions. Some practitioners may say this is simply to ‘set the scene’ for a question. Mostly, the scene does not need to be set, and the assertive comment from an advocate is entirely out of place where the judge has read the evidence bundle. Maybe this is the problem – maybe the judges haven’t and the advocates are seeking to describe the case to the judge, rather than question the witness on their evidence?
The more judges permit it to occur, the more it happens, to the point of normalising the ‘assertive-comment question’. The clarity of the process is not the only casualty; another is a diminution of the skill of the advocate. As opinion and evidence blur, so does the original integrity of the purpose and function of questioning witnesses. Witnesses are not simply confronted – which is good; but bullied, confused and invited to argument – which is cruel, unnecessary and to my view, unprofessional.
The flaw now appears ubiquitous in family courts, as family judges sit back and listen to comment-laden questions fired repetitively, to the point that when it comes to closing submissions (or comment) there is not a fresh comment to make.
Some suggest that the family courts have ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Yes, family courts have a special, human job to do -one that frequently requires a more informal approach -but the casualties of free-for-all questioning are extensive, not least the skill and ability of advocates to question without comment.