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How Practice Direction 57AC can help you win

Beneath all the "e" for effort required by Practice Direction 57AC there's a huge opportunity for litigators to put pressure on their opponents legitimately.

Just imagine that you receive instructions today in a claim that will end with a trial in the Commercial Court, say three years from now. You start interviewing witnesses. You're careful as you go about your work because you've read PD57 AC and the Statement of Best Practice and you understand the dangers of inadvertently influencing witness evidence.

So you plan your interviews to limit the possibility that questions on one topic will influence answers on another. When you meet the witnesses you explain the purpose, content, and procedure for preparing their  statements. During the interviews you avoid using leading questions on important contentious matters. When drafting the statements, you make sure the evidence is about relevant facts experienced personally by the witnesses, and you take care to use their own words (and not your own).

Lawyer considering how practice direction 57AC can help you win

Exchanging trial witness statements

Fast forward a couple of years. You've just exchanged trial witness statements and you start reading your opponent's witness evidence. And you make a list of the faults. They include:

  • commentary on your client's case and on witness evidence from interim hearings. (Breach of PD57AC 3.1 and SBP 3.6(4))
  • descriptions of events based on the documents and not on personal experience (Breach of PD 57AC 3.2 and SBP2.3)
  • references to documents but no list of the documents seen by the witness (Breach of PD57AC 3.2)
  • the same lawyerly vocabulary i.e. not entirely the witnesses’ own words (Breach of PD32 18.1)
  • confirmations of compliance signed by the witnesses despite the deficiencies mentioned above (Breach of PD 57AC 4.1)
  • certificates of compliance signed by the legal representative despite the deficiencies mentioned above (Breach of PD 57AC 4.3)
  • no indications of how well the witnesses recall the key events (Breach of SBP3.7(1))
  • no descriptions of how they were prepared (Breach of PD32 18.1(5))

Are you going to ignore these faults? No, of course you're not. You're going to point them out. And you're going to invite your opponent to do whatever suits you best, e.g. amend, redact, withdraw. And you going to say that if they refuse, you will apply for sanctions.

The Courts will be expecting you. It's clear from PD57AC that they expect a more sophisticated approach from practitioners, especially on avoiding practices that might influence a witness's memory. They want more focus on the facts that witnesses actually remember. And they want it now!

Court powers and sanctions

Do the Courts have the powers to deliver? Yes, they do. They still have all their case management powers and a full range of sanctions available. If you apply under PD57AC 5.2 the possible sanctions include requiring a statement be redrafted or requiring evidence to be given orally. You can even ask for the withdrawal of permission to rely on a witness's evidence altogether.

Of course your opponent can argue the toss and suggest that the sanctions you seek are over the top. They could even apply for PD57AC to be excluded. But they'll look pretty silly if they say they didn’t see all this coming.

Click on this link if you would like to learn more: Trial witness statements under PD57AC

 

About the Author

Peter Kinch is a Director of Kinch Robinson Limited and non-practising solicitor.

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Practice Direction 57AC – Do you really know how to avoid asking leading questions?

Witness Statements PD57AC - Do you really know how to avoid asking leading questions?

Photo by Matt Walsh - Unsplash

In 1998, the comedian Caroline Ahern (in her alter ego 'Mrs Merton') invited Debbie McGee onto her chat show. Debbie McGee had just married the wildly successful BBC magician Paul Daniels. She had been his assistant in his 'old school' magic tricks. Mrs Merton then asked her this memorable question: 'What first attracted you to the millionaire Paul Daniels?' The laughter lasted for minutes. Half a million people have watched this question again on YouTube. It was more than a question. It was a question and an answer.

This question would have failed to comply with the new PD57AC. The Practice Direction forbids leading on contentious matters when interviewing a witness for the purposes of a trial witness statement in a business and property court case. It defines a leading question as, “a question that expressly or by implication suggests a desired answer or puts words into the mouth, or information into the mind, of a witness".

You clearly spotted that the 'millionaire' question as leading; but can you spot more subtle versions? At speed? And can you reframe leading questions without missing a beat. You will need to.

Some firms are planning on recording interviews to demonstrate compliance with PD57AC. Are you confident that your technique is up to scrutiny?

Let's do a quick audit of your skills.

How to avoid asking leading questions

You are interviewing a CFO about a procurement procedure relevant to a controversial transaction. The procedure was a good one, and suggests that the company has a good, robust, and systematic approach. So you ask: "and is that your normal procedure?" It is good for you if it is.

Is that leading? You have 1 second to decide. Can you reframe it in a non-leading way instantaneously? If 'yes', then stop reading and do something else useful. If not; keep going.

This was a leading question: albeit a subtle example. Why? The question limits the witness's perspective to a single proposition of 'normalcy'. The procurement procedure could be described in several other ways. It might be her invariable practice to follow it. Or her usual practice but in given situations, or an occasional practice. Or maybe this was the first time she had followed the practice. Offering just one option of 'normal' influences the witness and removes the full choice that she should have. It is easier to accept the single proposition than to negotiate a better phrasing with the interviewer. Do we know if the witness simply acquiesced to the proposition in the question in spite of a slight sense of unease? What word would she have picked if offered a truly free choice?

Can you think right away of a better alternative?

The simple convention is that you will do better with a 'how' 'what' 'why' question. Here, you might need 2 questions to get you there. How about 'have you followed that process before?' If 'no', we have an exact answer, and if 'yes', the next open question is now easy. How often have you done so?' The evidence has now been elicited without circumscription, pressure or influence.

Click on this link if you would like to learn more about how to avoid asking leading questions: Trial witness statements under PD57AC.

About the Author

James Welsh is a Barrister, Professor of Legal Education and Consultant with Kinch Robinson Limited.

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Witness Statements under PD57AC

Change your old habits now

It's all very well banging on about the new certificates of compliance and the lawyer's duty to explain the process of preparing trial witness statements. But they’re not the most significant changes under PD 57AC. Really, they're not.

Put it like this, are any of these actions part of your routine when preparing a witness statement?

  • Preparing a first draft statement (based on the documents alone) before interviewing a witness
  • Showing the witness the key documents (e.g. the pleadings or other documents they have not seen before)
  • Using leading questions during interviews
  • Quoting extensively from the disclosed documents
  • Including commentary and argument in the statement
  • Using your own words in preference to the witness's words
  • Perfecting a draft statement by using post-it notes or review comments with suggested wording
  • Repeatedly revisiting drafts to improve them

If you answered "yes" even once, you might have a problem if the resulting statement was signed on or after 6 April 2021 for use in a trial in the Business and Property Courts.

That's because all of these practices, arguably, might influence the witness's memory, which is precisely what Practice Direction 57AC and the annexed Statement of Best Practice (SBP) are trying to prevent.

Statement of Best Practice in relation to Trial Witness Statements (SBP)

According to SBP 1.3, human memory is not a fixed mental record but "a fluid and malleable state of perception" and is "vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration". Because of this, trial witness statements should be prepared in ways that avoid (as far as possible) "any practice that might alter or influence the recollection of the witness…" There's an honourable exception in SBP 2.6 for refreshing memory using documents created or seen when events were fresh in the witness’s mind, but otherwise the prospects for the old ways are distinctly gloomy. Dauntingly, SBP 2.4 states that it is "improper to put pressure of any kind on a witness to give anything other than their own account, to the best of their ability and recollection, of the matters about which the witness is asked to give evidence".

There's a strong argument, of course, that Practice Direction 57AC is really nothing new at all, and that it's simply reminding us of the real purpose of a trial statement, i.e. to set out only the evidence that the witness can properly give during oral examination-in-chief.

If that feels hugely restrictive, you might also be wondering how on earth you will prove a case in future.

What if Witness A, for example, wasn't present at the relevant times or doesn’t remember anything significant? Preparing a trial witness statement is a waste of effort, that's for sure, because Witness A’s evidence isn't going to help you win. Instead, focus on proving your case with evidence from other witnesses or the documents alone.

And if you’re wondering where to put all the background information and argument and evidence commentary, think about using a chronology, a case summary or a skeleton argument. That stuff probably shouldn’t have been in a trial witness statement anyway.

Click on this link if you would like to learn more about Trial witness statements under PD57AC.

solicitors reading Practice Direction 57AC
solicitors reading Practice Direction 57AC

About the Author

Peter Kinch is Director of Kinch Robinson Limited, leading training course designer and non-practising solicitor. He also hosts our live online training course on Witness Statements under PD57AC with Professor of Legal Education James Welsh.

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What’s ‘upskilling’ and why should law firms and lawyers be taking notice?

What is 'Upskilling'?

Like 'furlough', 'zoombombing' and 'PPE', 'upskilling' and ‘reskilling' have been new words to come out of 2020. In the face of crisis, many businesses have found themselves needing to pivot - fast. Not only have we been learning new languages and new baking recipes during the pandemic, but we have also been learning how to navigate Teams and Zoom, how to adjust to our changing job roles, and how to retain a visible and professional profile in the remote workplace.

Put simply, the Covid-19 pandemic has shown us the importance of continual learning. To survive (and thrive) in the new normal, we have had to adapt.

Why is 'upskilling' on the agenda for law firms right now?

Over recent years, a 'skills gap' between actual and required skills has emerged in UK businesses. This is driven by new technologies and digitisation. So-called 'soft skills' are also caught by this trend: critical thinking, collaboration, resilience, adaptability and communication. COVID-19 has thrown light onto the lack of such skills, and how they make businesses less agile, and ultimately poorer.

Image upskill

According to PwC's report, Talent Trends 2019: Upskilling for a digital world, 79% of global CEOs say they're 'extremely' or 'somewhat' concerned about the availability of the right skillsets. Further, approximately 94% of today’s workforce (30.5 million UK workers) lack the complete range of skills they will need in 2030 to perform their jobs well. Upskilling these workers would bring a productivity uplift of 6-12%.

Law firms are no different to other businesses. They need to continually update the skillset of their workforce in order to maintain a competitive advantage.

You may be asking: what stops them from simply hiring more people who possess the skills they require? Upskilling or reskilling (i.e. investing in you) offers powerful benefits over hiring for skills.

  • Controlling salary costs. Employers must compete against each other when attracting new hires with premium skills. As a result, new recruits are paid on average 20% more than reskilled workers.
  • Avoiding onboarding requirements.
  • Boosting morale.
  • Retaining staff. A study conducted by LinkedIn found that 94% of employees would stay with a company for longer if there were training opportunities available. In the same study, 87% of millennials polled reported that development is important in a job, which is significant given that they are expected to reach 75% of the workforce by 2025.

So the business case is clear for investing in skills training. The Covid pandemic has simply brought added focus as staff adapt to new ways of working.

Taking control of your career and 'upskilling' yourself

Clearly, it's in your firm's interest to retain your talent; this saves them money and time. But don't wait for your firm to work out what skills they want you to develop. Your priorities and your firm’s priorities may be related, but they are different. You want a rewarding career, a good quality of life, and the satisfaction of knowing that you are reaching your potential. Your firm primarily wants you to be productive. So, while they will invest in training, if you passively wait for them to give you the key to your personal priorities, you are likely to be disappointed. Training offered will be designed to deliver their business needs, and against an allocated budget. To achieve personal success, you must be an active learner. It's up to you to evaluate your career goals, plot a roadmap to get you there, and fill in the training gaps.

It's no secret that a lawyer who can present well raises their professional profile; a lawyer who can organise their time and delegate effectively is less stressed and more efficient; a lawyer who produces perfect first drafts reduces the time and cost of redrafting; and a lawyer who pays attention to client care attracts glowing reviews and more work. In short, a lawyer who invests in their training becomes indispensable to their firm. And when they move firms, they carry their success with them, rather than relying on external factors to bestow it.

Image of company curve

Get ahead of the curve

While 'upskilling' is on the agenda it's the perfect time to work out which skills you need to work on and then identify your options for developing them. This might include reading or asking for mentoring or coaching from a senior colleague, as well as finding courses or other training options. If you need funding, then arm yourself with the commercial knowledge to make a business case. You might find your firm is willing to pay but remember you may also have to invest your own time and money. This is ultimately about you. What do you want? Why? And how are you going to get there?

Whether it's communication skills, managing difficult conversations, or legal project management that you think will give you the edge, now is the time to take the plunge.

If you'd like to discuss your professional development options, get in touch with us by emailing ask@KinchRobinson.com or calling 0114 273 8300.

About the Author

Emily Reed is an e-learning designer at Kinch Robinson. Developing our library of online e-learning courses specifically aimed at legal and claims professionals.

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