Speeches in Civil Trials

The Opening Speech

The opening speech in a civil case differs from an opening speech in the Crown
Court. In the Crown Court the prosecution opening speech is delivered to the jury. In
a civil action the claimant’s opening speech is delivered to a judge, save in a few
exceptional cases where there is a jury (actions against the police & some
defamation claims).

 In the Crown Court the jury will know very little about the case before the
prosecution opening. Unless the judge has told them something about the case
they are about to try, they will only have had the indictment read to them by the
clerk of the court. By contrast in a civil action, the judge is likely to have read
your skeleton argument and your opponent’s skeleton argument and possibly
some of the documents in the trial bundle.

 In the Crown Court you will deliver your opening speech to the jury
uninterrupted (unless you commit some serious ethical error such as referring
to previous convictions of the defendant which the judge has not allowed to be
given in evidence). In a civil action the judge may well interrupt your speech to
ask questions or to engage in a dialogue with you about the issues, how you
put your case and the trial timetable.

Your opening in a civil action therefore will take a somewhat different form than the
opening you would make in a criminal case. The following suggestions are made as
to how to approach the opening in a civil action:

Find out what the judge has already read

You need to find out what the judge already knows about the case. At one extreme
the judge may have read the skeleton arguments carefully and all the documents in
the trial bundle. In that event, you will simply irritate the judge by explaining at length
what the case is all about and you will soon be met with an intemperate intervention,

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‘I have read the papers!’. At the other extreme the judge may not have had time to
read the papers in advance. The case may only have been allocated the judge a
short time before it is called on. The papers may have got lost in the court system. If
so, an opening that assumes that the judge is familiar with the detail will not assist
your judge in understanding what the case is about and the significance of the points
you are trying to make.

So the usual practice is to start in this way,

Claimant’s Counsel: ‘[My Lord/My Lady/Your Honour/ Judge] I appear in this

case for the Claimant and my learned friend, [Mr/Ms] X, appears for the
Defendant. Can I just check what papers you have? You should have a file of
papers which my Instructing Solicitors have lodged as the trial bundle, my
skeleton argument and my learned friend’s skeleton argument.
Judge: Yes. I have them.
Claimant’s Counsel: And have you had an opportunity to read those documents?

This will elicit an answer from the judge. Listen to the answer carefully. It may be
that the judge will have read some, but not all of the documents. Typically judges will
read the skeleton arguments first and then, if time permits, the trial bundle. But this
exchange means that you can progress with some knowledge of how familiar the
judge is with the case. You can then pitch the remainder of your opening
accordingly.

Please note the following:

 Barristers usually ask whether the judge has had the opportunity to read the
papers. The more direct question, ‘Have you read the papers?’ may be
understood as being critical of any answer other than ‘Yes’.
 If the answer from the judge is, ‘Yes, I have read the papers’, do not assume
that the judge is on top of every detail in the case, still less that the judge has
grasped the points you will want to make in your client’s favour. For most of
us, whether students, barristers or judges, a first reading of the papers gives

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 an understanding of what the case is about; but it will take further time and
re-reading to think about and absorb all the detail. If you are one of those
few people who can read, understand and remember all the detail from one
reading of a number of documents, you are very fortunate. Do not assume
that your judge has that same level of ability as yourself.
 Having ascertained what the judge has read, move on. It would be tactless
to ask a series of probing questions designed to ascertain how much of the
detail the judge has understood. You would just antagonise the very person
you want on your side.

One way of dealing with the transition from this dialogue into your speech is to say,
‘As you will have seen, this case is about …’. You can then summarise in one or two
sentences what the case is about, for example:

‘a road traffic accident between 2 cars which occurred on 1 January 2023 in

Whitehall, London as a result of which my client, the driver of one of the cars,
suffered serious injuries,’

‘a contract for the supply of steel by the Defendant to my client, which was not
suitable for my client’s purposes’

‘a dispute between neighbours as to the precise position of the boundary between

their two properties’

Now that you know what the judge has, and has not, read, you can deliver your
opening speech. It does not need to be long. You will have an opportunity to make
closing speech after all the evidence has been heard. Your task at this stage of the
trial is:

(1) To identify the issues which the judge has to decide

(2) To inform the judge what you say is the law which the judge is to apply
(3) To explain the uncontroversial background in the trial bundle

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 (4) To get across to the judge points in your client’s favour[传达对客户有利的
判断要点]

(1) The issues

You will already have identified what you say the issues are in your written skeleton
argument. You can refer the judge to the relevant paragraph or paragraphs of your
skeleton.
But you also need to check what the other side’s skeleton argument has to say about
the issues. Hopefully they will be the same as you have identified. If you are lucky,
your opponent may have conceded one or more of the issues which you thought
were in dispute. But if the other side’s formulation of the issues differs from your
own, you will need to explain to the judge what you say the issues are and why.
Usually there is no dispute as to what the issues are which the judge has to try,
though you and your opponent may have formulated them in slightly different terms.

(2) The law

Again, you will have set out in your skeleton argument what you say is the law which
the judge is to apply. Take the opportunity to refer the judge to the relevant
paragraphs or paragraphs in your skeleton argument where you set this out. You will
have backed this up with reference to legislation or caselaw. The judge at this stage
is unlikely to have read that source material, so refer the judge to the section or
sections of the legislation on which you rely or the paragraphs or paragraphs of the
case on which you rely and which state the test which the judge is to apply.

Look at what your opponent’s skeleton says about the law. If your opponent’s
skeleton argument agrees with yours as to the test to be applied, you can tell the
judge that there is no dispute on the law. If your opponent’s skeleton argument
asserts that the law is different from what you say it is, you should be prepared to
explain why your formulation of the legal test is correct and why your opponent’s is
wrong.

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In some cases the law depends very much on what factual findings the judge will
make. In that situation, it is probably not a good idea to take the judge through a long
line of cases, some of which may become irrelevant once the evidence has been
heard. It may be better to explain to the judge what you say are the elements of the
test to be applied, fortified by your best authority, and suggest that more detailed
legal argument on the point might be more usefully addressed once the factual
evidence has been concluded.

(3) The background

Before hearing the oral evidence on disputed matters, the judge should understand
what the uncontroversial evidential background is. You will need to take the judge to
the material in the trial bundle. For example:

 If the case is about a written contract, you should refer the judge to the
contract itself, highlighting the clauses of the contract relevant to the dispute;
 If the case is about an oral contract, you should take the judge to the
correspondence (letters, emails, etc.) before and after the disputed
conversations;
 If the case is about personal injury, you should take the judge to any
photographs or recordings of the incident or the place where the accident
occurred and any maps or diagrams of that place and explain what they
show;
 If the judge is required to assess the quantum of damages in a personal
injury claim, you should explain how you are going to deal with the medical
evidence, usually by reading a doctor’s report or report after you have called
your client and any other witnesses as to liability;
 If the judge is to assess financial loss, you should take the judge to the
documentation in the bundle relevant to its calculation.

A judge who understands the written material is better able to understand the
significance of, and to evaluate, the oral evidence on disputed facts.

(4) Points in your client’s favour

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Going through the documentation in the trial bundle gives you an opportunity to draw
the judge’s attention to points you rely upon in your client’s favour. You have
probably already mentioned those you wish to emphasise at that stage in your
skeleton argument. But this is an opportunity to make the points orally and to link
them to the documentary evidence in the trial bundle. Ideally you want the judge to
be favourably disposed to your client by the time the judge starts to hear oral
evidence – to feel that the justice of the case is on your side - or at the very least to
understand your client’s point of view.

This aspect requires careful handling. At this stage of the trial you do not know how
the oral evidence is going to come out and what impression the witnesses are going
to make on the judge. You also do not want the judge to feel that your opening is too
one-sided, omitting reference to documents and points on which you know the other
side will rely. A judge who later in the case feels that you have not explained what
the case is about, and not summarised the evidence even-handedly, will lose
confidence in you as an advocate and, more importantly, may be led to doubt the
validity of your client’s case. In addition, you do not want to explain in your opening
all the devastating points that you will put to the other side’s witnesses in cross-
examination. In a civil case they may well be sitting at the back of the court. If you tell
them in advance the points you are going to put to them, they will have more time to
think of answers.

Your approach should therefore be one which has been described as ‘loaded
neutrality’. Everything you say in your opening about the evidence should be
accurate; you should not hide from the judge what you know the other side is saying
in their Defence and skeleton argument. But your opening speech is an opportunity
to get across to the judge points which you will rely upon in your closing speech.

Concluding the opening speech

You may conclude your speech by saying ‘I will now call my first witness, the
Claimant’.
But a more courteous way is to offer the judge an opportunity to raise any points
which are troubling the judge or about which the judge is unclear. You can do this by
saying, ‘Unless I can assist you further, I will call my first witness, the Claimant.’
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 The Closing Speech

Your closing speech is your last opportunity to explain to the Judge why the case
should be decided in your client’s favour. If you are defendant, it may be your only
opportunity to do this orally. The opportunity is not one that should be wasted.

If you have done a thorough case analysis before the trial started you already know
what you had hoped to be able to say in your closing speech. All your questions to
the witnesses should have been directed to eliciting answers which assist your case
or defeat or undermine the other side’s case. This is now the time to bring together
into your closing speech the helpful points which have emerged in the evidence.

Unless the case is a complex one, the Judge is likely to want to deliver a judgment
immediately the last closing speech has ended. At that time the evidence and the
other detail will be fresh in the Judge’s mind. You therefore need to ensure that the
Judge understands the points in your client’s favour. In this situation the Judge will
not later re-read the papers and maybe find a point helpful to you and which you
have not brought out. And you will certainly not have an opportunity after the Judge
has finished giving judgment to debate with the Judge why the judgment just
delivered is wrong.

In considering what you are going to say in your closing speech, it is worthwhile to
remind yourself what the functions are of a first-instance Judge delivering judgment.
If you understand what the Judge is (or should be) trying to do, you will be better
able to structure and formulate submissions which assist the Judge to decide in your
client’s favour.

The trial Judge’s function in delivering judgment is:

 To identify the issue or issues in the case on which the parties disagree and
on which a judicial determination therefore is required;

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  To make findings of fact as to what occurred and was said, based on the
evidence in the case;
 To identify and apply correctly the law which applies in those circumstances;
 To give reasons why he/she has made those findings of fact and reached
conclusions as to what the law is, so that (i) the losing party knows why they
have lost and (ii) an appeal court can understand why the Judge decided the
case.

Your closing submission should be directed to assisting the Judge (so far as you are
able ethically to do so) to decide the case in your client’s favour and to reject the
other side’s evidence and arguments.

There is no single structure to be followed in every closing speech, but the following
is a check list of the points you will need or should be prepared to deal with.

(1) The issues: You will have identified the issues in the case in your opening
skeleton argument. But some of these may have fallen away in the course of
the trial, e.g. because there has been no evidence to support a proposition.
Remind the Judge what the issues are which fall for a decision now. If the
Judge does not make a decision on an issue in the case, the judgment will
be vulnerable to an appeal and possibly a new trial, unless the Judge
produces a supplemental judgment dealing with the outstanding issue.

(2) The law: Again, you will have set out your propositions of law in your
opening skeleton argument. Unless the law is very straightforward or the
Judge is obviously familiar with the law, remind the Judge what those
propositions are and take the Judge to the sections of the Act or Rule or the
paragraphs in an authoritative judgment which set out the test which the
Judge is to apply. You do your client no favours by persuading a Judge to
give judgment in your favour based on a proposition of law or legal test that
can easily be shown on appeal to be wrong.

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(3) The Facts: Tell the Judge what findings of fact you say should be made and
why. It is much more difficult to appeal a trial judge’s finding of fact than on
the law; so this is realistically the only opportunity your client gets to obtain
favourable factual findings.

Look at the paper ‘How Judges Decide Questions of Fact’. What points can
you make as to why the evidence of your client and your client’s witnesses
should be preferred to contrary the evidence adduced by the other side? The
Judge is likely to welcome submissions on the facts which identify precisely
(i) what findings you say should be made, (ii) the evidence you rely upon for
those findings and (iii) why you say that evidence should be accepted.

Explain to the Judge why your side’s evidence should be accepted; e.g. ‘My
client gave clear and precise answers when questioned by my learned
friend, was willing to accept points not helpful to his case and gave evidence
is consistent with the contemporary documents’; and go on to explain what
was consistent and why. (Clients find giving oral evidence under cross-
examination an unnerving experience and will like it if you say something
nice about their evidence to the Judge.)

Explain why the other side’s evidence should be rejected; e.g. ‘That
evidence was evasive and rambling and on some aspects was clearly wrong
or inconsistent with the contemporary documents.’; and then go on to explain
why the other side’s evidence was wrong or inconsistent with the
documentation.

(4) Deal with the other side’s points: Explain to the Judge why the points made
by the other side (in their skeleton argument or in their closing speech) are
wrong and why; or, if there is some force in them, why they are outweighed
by points in your client’s favour. If you do not explain why the other side’s
points are bad, the Judge may conclude that you have no answer, or no
good answer, to them.

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As with your opening, the Judge may well interrupt your speech, so that the speech
turns into a dialogue between the two of you. This is not necessarily a bad thing and
you should not treat it as such. Indeed, a silent Judge may not be interrupting you
because the Judge has already decided to give judgment against you – and is
simply letting you speak uninterrupted before delivering a judgment explaining why
your arguments have been rejected.

Sometimes it will be readily apparent whether a Judge’s question or intervention is

helpful to your case or not. On other occasions it may be less apparent, frequently
because the Judge is trying to work out what to decide on a particular point. When
asked a question or dealing with an intervention, take the opportunity to explain how
you put the point, usually by explaining what you say the Judge should conclude and
why; and give the Judge the opportunity to note your answer down. If the Judge
eventually decides that point in your favour, you well find that the reasons the Judge
gives are precisely the ones you have explained.

If the Judge asks you a question which suggests that the Judge is hostile to your
case or submission, you should nevertheless answer the question, rather than
evading it. If you have prepared thoroughly, you will have worked out for yourself
what your weak points are and thought out your best answers to them. Give your
answer as clearly and confidently as you can, so that the Judge has to grapple with
the point in delivering judgment. Do not just evade the question by going onto other
points more helpful to your client’s case. If you do, the Judge is likely to conclude
that you have no answer to the point - and, because the Judge’s mind will be
focussed on that aspect, the Judge may not be listening to or absorbing the better
points you are trying to make.

And finally – Sometimes a Judge may say to you ‘I need not trouble you further’.
That is Judge-speak for saying ‘I am going to decide in your favour’. If the Judge
says this to you, shut up, bow courteously (trying not to look too smug) and sit down.
You can then focus your mind on the submissions you are going to make as to costs
- what order you want against the other side, how much they are to pay and when.

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