Лектор докладно проаналізувала разом з учасниками навички адвокації в юридичній англійській мові, а саме:
1. Introduction to Advocacy. What is advocacy? / Що таке адвокація?
2. Written Advocacy / Письмова адвокація.
2.1. Court Documents / Судові документи.
2.2. Persuasive Writing / Переконливе письмо. Three pillars of persuasion / Три основи переконання: o Character (ethos) – credibility of the lawyer / Авторитет адвоката o Emotion (pathos) – controlled emotional appeal / Контрольоване емоційне звернення o Logic (logos) – legal reasoning and argument structure / Логіка – юридичне обґрунтування та структура аргументів.
3. Oral Advocacy / Усна адвокація. Preparing for Court / Підготовка до суду. Presenting in Court / Виступ у суді. Addressing the Court / Звернення до суду.
4. Questioning Witnesses / Допит свідків. Examination-in-Chief / Основний допит. Cross-Examination/ Перехресний допит.
5. Wrap-up & Practical Takeaways / Підсумки та практичні висновки.
У рамках характеристики адвокації в юридичній англійській мові акцентовано на наступному:
1. Introduction to Advocacy. What is advocacy?
In general English, advocacy means public support for an idea, plan, or way of doing something. In legal English, advocacy has a more specific meaning. It is described as the art of conducting cases in court.
Advocacy can be defined as the work performed by a lawyer when they prepare for or represent a client in litigation or arbitration. The main idea is that advocacy is connected with persuasion.
In the legal context, advocacy involves presenting legal arguments, interpreting and applying the law, making submissions to the court, challenging the opposing side’s arguments, protecting the client’s interests and persuading the decision-maker.
The material also distinguishes several related concepts: advocacy means to persuade, representation means to act for the client, legal advice means to advise, defence means to protect, and argument means to justify.
2. Written Advocacy
Written advocacy is the use of written legal arguments to persuade a court or other decision-maker.
Its key purposes are to present a legal position, develop an argument, rely on legal authorities, persuade the court and support a claim or defence.
Common forms of written advocacy include particulars of claim, defence, witness statement, skeleton argument, written submissions and application notice.
2.1. Court Documents
In civil litigation in England, the claim form and particulars of claim are used to start a court case. The claim form provides brief information about the claim, including the parties’ names and addresses, the nature of the claim, the remedy sought and the value of the claim. The particulars of claim set out the allegations of fact which the claimant must prove in court.
The defendant responds with a defence, which states which allegations are denied and why. The defendant may also bring a counterclaim, which is dealt with in the same proceedings.
A statement of case refers to the set of documents in which the parties state the basis of their case. The claimant’s statement of case consists of the claim form, particulars and any reply to the defence and defence to a counterclaim. The defendant’s statement of case comprises the defence and any counterclaim.
Witness statements are written testimonies of witnesses whom a party intends to call at trial to present oral evidence. A party must disclose the evidence on which it intends to rely in court to the other party.
A skeleton argument, sometimes called a case summary, briefly sets out the points on which a party will orally argue in court. An application notice is used when a party asks the court to decide a subsidiary matter related to the main trial and should briefly state what order is sought and why.
The particulars of claim follow a clear structure. The introduction explains what the case is about, the characters explain who the parties are, the middle states what happened by setting out the facts and allegations, and the end explains the result, the impact of the defendant’s wrongdoing and the remedy sought.
2.2. Persuasive Writing
Persuasive advocacy means the use of arguments to convince a court or decision-maker to accept a particular position. Legal reasoning is the process of applying legal rules and principles to facts, while argument structure is the logical organisation of points, evidence and conclusions.
A persuasive legal document should make the reader think: “I trust this lawyer”, “I understand why this matters” and “The argument makes sense.” The three pillars of persuasion are ETHOS, PATHOS and LOGOS.
Character (ethos) – credibility of the lawyer
Ethos concerns the credibility of the lawyer. The relevant elements are professional credibility, expertise, fairness, authority and ethical conduct. The central question is: “Can I trust the advocate?”
Credibility can be established by referring to the relevant contractual provision, relying on evidence and legal authorities, and using a professional and measured tone.
Emotion (pathos) – controlled emotional appeal
Pathos concerns controlled emotional appeal and asks: “Why should I care?” It may involve human impact, fairness, sympathy, urgency and consequences.
The material distinguishes controlled emotional appeal from excessive emotion. Effective emotional appeal identifies the human consequences, avoids exaggeration, connects emotion to specific facts and maintains professional credibility.
Logic (logos) – legal reasoning and argument structure
Logos concerns legal reasoning and argument structure and asks: “Why does the argument make sense?” It is based on facts, evidence, legal rules, authorities and logical reasoning.
The material provides the following structure for building a legal argument: FACT, EVIDENCE, LAW, ANALYSIS and CONCLUSION. The facts establish what happened, the evidence supports the factual position, the law provides the applicable legal rule, the analysis applies the law to the facts, and the conclusion follows from that reasoning.
3. Oral Advocacy
Oral advocacy concerns presenting the case orally before the court. The material provides specific vocabulary for appearing before the court and making submissions, including “to appear”, “to present a case”, “to make submissions” and “May it please the court”.
Preparing for Court
The preparation reflected in the material focuses on knowing the case, its issues, the evidence and the arguments that are to be presented. The advocate should be able to state the nature of the case and identify the issues between the parties.
For example, when stating the nature of the case, the advocate explains what the claim concerns. When stating the issues between the parties, the advocate identifies what is agreed, what is disputed and the key issue that the court must determine.
Presenting in Court
When presenting a case, the advocate should clearly state the nature of the case and the issues between the parties. The presentation should identify the relevant dispute and explain what the court is required to determine.
The advocate should use appropriate legal language and make submissions clearly. The aim of advocacy is to present legal arguments, interpret and apply the law, challenge the opposing arguments, protect the client’s interests and persuade the decision-maker.
Addressing the Court
The material gives examples of appropriate language for addressing the court, including “Your Honour, I appear for the claimant in this matter”. The phrase “May it please the court” is described as a traditional phrase used at the beginning of oral argument in the USA and also in England, although not in arbitration.
4. Questioning Witnesses
Examination-in-Chief
The main aim of examination-in-chief is to get the witness to tell the court his or her version of events. The lawyer helps the witness present their evidence clearly and systematically.
A witness statement exchanged before the trial will often stand as the witness’s evidence-in-chief. The lawyer may then ask for explanatory comments, clarify particular points and ensure that important evidence is properly understood.
If the witness gives evidence-in-chief in full before the court, the lawyer should take the witness through all the evidence they wish to obtain. Vital facts should not be omitted, so all relevant and important facts should be covered.
Leading questions are not allowed during examination-in-chief. A leading question contains or suggests its own answer. Open questions such as “When did you see him?” allow the witness to give their own answer.
The witness should be introduced at the beginning. The witness may provide their name, address and employment details where relevant. The evidence should normally be presented in chronological order, moving from past events to the relevant incident, subsequent events and the current position.
Once the relevant evidence has been covered, the lawyer should stop and avoid unnecessary repetition, asking the same question in different ways or eliciting evidence that has already been given.
Cross-Examination
Cross-examination follows examination-in-chief. Its main purpose is to challenge the witness’s version of events given during examination-in-chief.
The lawyer may challenge specific parts of the witness’s evidence, the witness’s credibility, reliability, possible bias and whether the witness is trustworthy.
Unlike examination-in-chief, leading questions are permitted in cross-examination and are often an effective way of controlling the witness. The lawyer should generally use leading questions, closed questions and questions requiring “yes” or “no” or a one-word answer. The purpose is to control the evidence rather than allow the witness to give a long explanation.
A lawyer can challenge credibility by showing that the witness may be biased, unreliable, untrustworthy, inconsistent in their evidence or mistaken about important facts.
The cross-examining lawyer must also put their own client’s case to the witness where the witness is in a position to comment on it.
The key distinction is that examination-in-chief usually uses open questions to obtain the witness’s evidence and establish the client’s case, whereas cross-examination uses leading questions to challenge evidence, control the witness, test the opposing evidence and expose weaknesses, inconsistencies or bias.
5. Wrap-up & Practical Takeaways
Effective advocacy is based on persuasion. In the legal context, advocacy involves presenting legal arguments, interpreting and applying the law, making submissions to the court, challenging opposing arguments, protecting the client’s interests and persuading the decision-maker.
Written advocacy uses written legal arguments to present a legal position, develop an argument, rely on legal authorities, persuade the court and support a claim or defence.
Persuasive writing is built around ETHOS, PATHOS and LOGOS. Ethos establishes the lawyer’s credibility through professional credibility, expertise, fairness, authority and ethical conduct. Pathos uses controlled emotional appeal by focusing on human impact, fairness, sympathy, urgency and consequences. Logos provides legal reasoning and argument structure through facts, evidence, legal rules, authorities and logical reasoning.
In witness questioning, examination-in-chief is aimed at obtaining the witness’s evidence and helping the witness tell their story, usually through open questions and in chronological order. Cross-examination is aimed at challenging the evidence, controlling the witness and exposing weaknesses, inconsistencies or bias through leading and closed questions.
The final practical principle is expressed as: “Ask with purpose. Listen with precision. Advocate with confidence.” Great advocacy is not about asking more questions, but about asking the right question, at the right moment and in the right way.