Learnings from English commercial court judges

As a barrister in England, it is my job to know judges of the English Commercial Court before whom I appear. 

Earlier this year, I had the privilege of attending a small event with about 9 English Commercial Court judges and 25 barristers organised by the London Common Law and Commercial Bar Association (LCLCBA). We had an insightful interaction over four hours on topics of law and beyond. Here are some key takeaways from my conversation with the Judges.

I found that the learnings from that evening could be universally applied in any courtroom or arbitration.

Manners matter

It was nice to be remembered for being kind to my opponents. Justice is blind, but judges are not. Being cooperative is appreciated and it is possible to argue your case without being aggressive or condescending to opposing counsel learned friends.

Oral advocacy is important

Judges can change their minds during a hearing despite having had everything in writing beforehand. One judge said they changed their mind four times during the course of oral arguments.

When I have sat as an arbitrator, good advocates have succeeded in playing pickleball in my mind. Oral advocacy of those appearing before had a determinative influence on the outcome.

How not to cross-examine 

Cross-examination in the age-old style of “I put it to you…” is unhelpful as it confuses a lay witness. Instead, try "Do you agree...?"

It is equally unhelpful to read a document and follow it up with questions. Try the reverse instead.

Start your cross with the heart of what is in dispute rather than going chronologically. Imagine the plight of a tired judge listening to an advocate who said they had ten points to submit, which they would argue in reverse order of importance! Even a patient listening ear would become impatient.

Be useful

Cases are won on the facts. In England and in most international arbitration, judges will find a way of doing justice on the facts to sleep better at night.

Try, therefore, to be of genuine assistance to the judge. Succinct submissions and depth of thought are appreciated.

Analogies are useful. A high-value, complex dispute can be explained by analogy to simple examples from everyday life.

Clarity

Clarity of thought in oral and written advocacy is crucial.

During COVID-19, I obtained a worldwide freezing injunction in a complex cryptocurrency fraud case. It was flattering to find out that the judge before whom I argued the case had printed one of my documents explaining the complexities of the tech fraud to refer back to when needed in his future matters.  

Simplify complex matters, do not complicate simple matters.

Karishma Vora is a Barrister at 39 Essex Chambers.