THE BARRISTERS TRAINING COURSE

NOTTINGHAM LAW SCHOOL

CONFERENCE SKILLS GUIDE

CONFERENCE SKILLS GUIDE

NOTTINGHAM LAW SCHOOL

BARRISTERS TRAINING COURSE

GUIDE TO CONFERENCE SKILLS

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 THE BARRISTERS TRAINING COURSE
NOTTINGHAM LAW SCHOOL
CONFERENCE SKILLS GUIDE

CONFERENCE SKILLS GUIDE

I WHY A CONFERENCE SKILLS GUIDE

This Guide is intended to provide students with an understanding of basic but important
principles applicable to all conferences.

Unfortunately, students have become accustomed to having formulas to apply to scenarios

when answering questions. Conferences are dynamic processes with real life consequences
– they cannot be scripted and there is no ‘one size fits all’ approach. A conference requires
you to address the specific client and their specific issues. At this stage in your learning
there is no ‘formula’ when dealing with dynamic, interpersonal problem-solving situations
(which is the nature of a conference). A conference, of necessity, requires the
implementation of your own personal style and an ability to be flexible to adjust to and
accommodate the client that you are in conference with. There are however principles that
will apply to every conference and this Guide will provide you with an understanding of
those principles – both theoretical and practical.

II WHAT IS A CONFERENCE?

A client conference is a fundamental component of the litigation process. The ability to

engage in an effective conference is essential to the barrister who hopes to properly and
effectively represent their client. A conference is, essentially, a problem-solving exercise
which requires:

• knowledge of the law;

• application of the law to facts;
• excellent communication skill;
• an understanding of the Code of Conduct and an ability to apply it;
• an ability to translate legal knowledge in a manner that a lay client can understand
and which allows the client to give clear instructions.
• The ability to identify available options and give appropriate case specific advice.

III CONFERENCE PREPARATION

As with all matters legal, the key to an effective conference is thorough case analysis and
preparation. Prior to seeing the client, whether the defendant in a criminal case or the
plaintiff in a civil matter, you would have received some information about the case (which
may be detailed or may be extremely limited). You may have received a brief. It is through
the vehicle of the conference that you will acquire the necessary information and give the
requisite advice necessary for the end-outcome.

The content of a conference is essentially:

- Case preparation;
- Questioning
- Considering available options
- Giving advice;
- Ethical considerations.
- Taking instructions

The purpose of a conference includes any one or combination of the following:

- Discover and elicit information;

- Clarify facts and issues;
- Discuss available options;

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- Advise
- Identify individuals
- Receive instructions;
- Provide reassurance;
- Negotiate a settlement;
- Assess the client as a potential witness;
- Prepare for a court hearing.

IV CASE PREPARATION

Effective case analysis and preparation will enable you to ensure that both you and your
client derive the maximum benefit from the conference. The conference has a vital bearing
on the success of the case itself and to shaping the final outcome. It therefore follows that
thorough planning for the conference is essential if you are to succeed in obtaining the best
outcome for your client.

Good conference skills practice suggests that in planning for a conference it is useful to
divide your work into two distinct parts:

(i) The legal and factual analysis for the conference with your client (first stage);
(ii) A working plan (second stage)

The information you need to acquire from your client will depend on the outcome to be
achieved (e.g., bail, trial, plea in mitigation, etc) and the information you already possess.

Whatever the specific instructions for the conference and whatever the context of the
proceedings, it is only by identifying the legal issues involved that you can properly consider
the nature of the problem and the legal framework in which the case is set.

If for example, you are instructed to represent a client in criminal proceedings, the sort of
information the brief will give you might include:

• The charge(s) which your client faces. What has he or she been charged with? Is
there an indictment or a charge sheet?
• What stage the proceedings have reached. First appearance? Does there need to
be a bail application; plea before venue etc.
• What papers have been additionally served
• Proof of evidence
• Defence statement
• Any previous convictions

When you have identified the legal issues from the papers, you will be able to decide what
legal rules are likely to be applicable.

In addition to these matters, you should also be alert to any obvious omissions in the
papers and the sorts of areas on which you need more, or fuller, information.

What are the factual issues?

In addition to the legal issues, it is equally important that you analyse any information
which is contained in the brief.

Factual analysis is central to your ability to prepare effectively for the conference. It is from
the facts which are available that you can:

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(A) Become fully familiar with the circumstances and events relevant to the case in
hand.
(B) Identify what information is missing.
(C) Recognise areas of uncertainty or ambiguity.
(D) Compile a list of information which will assist the conference, e.g, a chronology of
events, pinpoint dates, identify the names and role of people involved.
(E) Draw up a plan, e.g where an accident occurred, the lay-out of any premises or
relevant locations.

How do the legal and factual issues tie together?

An application of the relevant law to the factual issues enables you to determine the
framework in which the conference should be conducted. You should be able to identify:

• What areas of research you will need to undertake. This can include any (or all) of the
following:

- Evidence
- Procedure
- Substantive law
- Case law
- Statute law
- Specialist texts

• What additional information you need to elicit from:

- The client;
- Instructing solicitors
- Any other parties involved.
- Any expert witness

• The areas of uncertainty which need to be clarified

• Your initial perception of the strengths and weaknesses of the case
• The possible implications for your client
• In what order to logically deal with the issues involved

V CASE SCENARIO: R V SAMANTHA JONES

Samantha Jones has been charged with burglary of a dwelling-house. It is alleged that she
with one other, Melvin Hall, entered a property at night by breaking a back window. The
lounge was ransacked during the burglary. They were both apprehended by police a short
distance from the property and had in their possession stolen goods to the value of £2,000.
She was remanded in custody by the police. This is her first court appearance. Samantha
has a previous conviction for theft and one further conviction for failing to surrender. The
defendant intends to plead not guilty to this offence. The police object to bail on two
grounds (i) the defendant will fail to surrender; (ii) the defendant will commit further
offences whilst on bail. You act on her behalf and are instructed to apply for bail.

The end-outcome in this scenario is securing bail. It will be at the discretion of the
magistrate whether to grant bail or not. The magistrate’s decision will be influenced by what
you tell him/her about the offence and about the defendant. You will, therefore, have to
engage in a conference with Samantha to acquire relevant information in order to make this
application for bail and also to advise her on the prospects of being granted bail.

Your preparation will take place before you meet Samantha:

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(1) Look at legal framework – as this is an application for bail your first port of call
should be the Bail Act 1976 to see when a defendant is entitled to bail. From your
research of the Bail Act you will observe:

- There is a presumption in favour of bail (s.4(1) Bail Act 1976).

- The prosecution are entitled to raise objections to the grant of bail.
- The onus is on the court to justify any refusal of bail in accordance with the Act.
- The magistrates are entitled to refuse bail if it appears that there is a real prospect of
custody and they are satisfied that there are substantial grounds to believe that one or
both of the police objections will occur.

In deciding whether to grant bail the magistrates will take into account all the
circumstances of the case, especially:

- The nature and seriousness of the offence;

- The character, antecedents and community ties of the accused;
- The accused’s record for answering bail in the past;
- The strength of the evidence against the accused;
- Any other relevant matter

This should focus your attention on the type of information that you need to acquire from
Samantha in order to make an effective bail application.

You have been provided with some facts. Filter those facts that are relevant to the
application from those facts that are not. Any fact that has a bearing on the considerations
that a magistrate will take into account is obviously relevant to the application.

The following is an example is the type of information required.

Nature and seriousness of the offence

Why with Melvin Hall

Did she enter property? If so, why?
Where was she when apprehended
Was any of the stolen property in her possession
Her response to police following arrest
How does she intend to plea?
What did she tell police about her level of participation?
Participation in ransacking?

Character, antecedents and community ties

Address and how long resident at address and in community

Family ties
Employment
Current situation
Income
When did previous convictions occur and circumstances. How did she plead to that offence?
Effect of loss of liberty

Record for answering bail in the past

Circumstances of failure to surrender conviction.

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Strength of evidence against her

Has she made any admissions to the police?

Other matters.

Can she provide a surety/security.

Is she prepared to abide by conditions, e.g., curfew, residence, reporting to the police.

VI MEETING THE CLIENT AND GETTING THE INFORMATION

First impressions count. The client may be very nervous; especially if this is their first
experience of the court system. The first meeting between you and the client is, therefore,
very important. This meeting will provide the basis of the working relationship that you and
the client will develop throughout your professional involvement.

The likelihood however is that as a pupil you will get the opportunity of meeting your client
once and that will be at court. It is the atmosphere that you create that will be a major
factor in assisting the client to overcome some of his or her fears, to dispel any
preconceived notions of aloof barristers and give him or her confidence in your ability. If
you succeed in gaining the client’s confidence at the start, the conference will be much
more effective; and the objectives of the conference more readily achieved.

There is no specific format as to how to start a conference. A lot will depend on the nature
of the case, the time available, the client involved, the knowledge (or lack) that you have
gleaned from your instructions and your own personality. It is always useful however to
give the client a framework as to how you propose to conduct the conference (always keep
in mind that the client is an active participant and not a passive observer.) The client needs
to know:

- What you want to achieve with this conference;

- Why; and
- How.

The conference is just as much about the client giving you information as it is about you
giving advice.

The client needs to have the freedom to give you information and to ask questions without
taking control of the conference. How then do you arrive at a happy medium:

(i) Make them aware that you are aware of the relevant facts.
(ii) Make them aware that you are aware of what they want to achieve.
(iii) Put forward a proposed agenda.
(iv) Make them aware that discussions with you are covered by client confidentiality.

As far as Miss Jones is concerned, once you’ve introduced yourself and succinctly recited the
information that you have about the allegations made against her, you will have to tell her
how you intend to go about getting her bail.

Again, case preparation is the key. Good case preparation will enable you to structure the
conference consistently with the relevant legal issues. This in turn will allow you to have a
logical framework to ensure the conference is kept on track.

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Additionally, if the client can see that you have a clear agenda for your meeting, he or she
will be immediately reassured that you are on top of the case. At the start of the
conference, the client should be confident that you have:

• Read the papers and are fully familiar with the case.
• Clearly identified his or her areas of concern.
• Recognised his or her needs and expectations of the conference; and
• Decided on an appropriate order in which to deal with the issues.

If the client is informed of the way you intend to conduct the conference, they will be more
amenable to providing you with the necessary information, and the conference is more
likely to proceed in a productive and efficient way.

VII GETTING THE INFORMATION/QUESTIONING.

When you question a defendant in a conference you should be seeking to:

(i) confirm and clarify their version of events - if necessary, with reference to their proof
of evidence;
(ii) clarify any discrepancies, e.g., between their account in police interview and that
given in their proof of evidence.
(iii) acquire information in respect of any gaps/omissions.

Be aware that counsel should not coach the witness but do not shy away from asking
searching questions where appropriate. It is unethical and unprofessional to suggest a
defence to a client. When addressing disputed matters, it is advisable to employ open-
ended questions. On occasion it may be necessary to draw your client’s attention to the
prosecution’s case where there is a discrepancy between their account and the defendant’s
account and ask the client to clarify/explain the discrepancy.

You can adopt any mode of questioning you feel appropriate as long as you in no way coach
the witness or suggest the answer s/he may choose to give. You should never suggest a
defence. You can however probe and ask searching questions. If your client’s answer is
vague or lacking in credibility, you can tell him/her that. You can tell him/her that, where
appropriate, his/her answers are insufficient. If, in a particular case, your client says their
recollection of events is vague for whatever reason, you may need to point out the
weakness of this and ask them to think about what happened. A criminal hearing is a very
demanding and rigorous process. It is often uncomfortable for a defendant. Your
questioning must be such as to prepare them and your case for what lies ahead. In an
appropriate way, it may sometimes be necessary to remind your client of this. What you
must stop short of doing is suggesting what might have happened.
The types of questions that one can employ are:

• Leading.
• Open.
• Semi-open.
• Closed.

The questioning technique you employ will depend on the issue being addressed. It is
perfectly acceptable to use leading and closed questions on preliminary matters and
undisputed or non-contentious issues. Where matters are disputed it would be advisable to
use open questions.

You should also consider the best way to ask a question – this is particularly important
where you are dealing with sensitive matters.
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If you were questioning Samantha Jones you could use, as a framework for your questions,
the considerations outlined in the Bail Act (see above). It would be perfectly proper to lead
on her name, address, date of birth, the fact that she was arrested, where and who with.
You would need to be careful as to how you formulate other questions. You want to ensure
that the information you receive comes freely and voluntarily from her and not as a result of
suggestion by you. Consequently, it would be preferable to ask open-ended questions about
her relationship with Melvin Hall, why she was with him, her entry into the burgled
premises, etc.

Always ensure that the client can ask questions and once you have completed the
questioning element of the conference it is prudent to ask the client if there is any further
information that they think you should be aware of
.

Once you have asked your questions you should then go on to give advice.

VIII ADVISING

A helpful starting point when advising, once you have gathered all of the necessary
information maybe to confirm whether the account they have given you has provided them
with a defence. Following on from that, what the appropriate plea should be – not telling
them what to plea bit advising them to consider a plea consistent with whether they have a
defence. You should not be directing them as to what to plea but advising them on whether
they have a defence so that they can know what the appropriate plea is. You will not be
able to give complete and proper advice until you have acquired all the information you
need from the client.

Be open-minded – the opinion you held at the beginning of the conference may be
completely different once you have received further information from the client - e.g. you
may have received instructions to the effect that the client confessed to a crime to the
police in interview. It now turns out, following your questioning, that s/he was medically
unfit to be interviewed at the time and their condition rendered any confession unreliable. If
the confession is the only evidence against your client, then what initially appeared to be a
watertight case against them is now no case at all.
.
You must speak the truth, the whole truth and nothing but the truth – that means on
occasion telling the client things that they don’t want to hear and won’t take kindly to.
It serves no purpose telling the defendant who has been convicted for robbery for the 4th
time that s/he might get a conditional discharge or a fine. Likewise, it doesn’t assist your
client when you tell them that they have a 50/50 chance of success depending on whether
the jury believe you or the prosecution.

How you advise depends on the purpose of the conference - so if the conference is to
get information to apply for bail, you should not be advising on likely sentence.

Make sure your advice is practical and clearly communicated.

Being practical means that you’ve considered all the options from litigation to
negotiation.

Clear communication means that you speak to the client in a language they
understand. Being a barrister does not give you licence to speak in ‘legalise’. Keep your
language plain and simple.

Your advice needs to be complete – the client needs to feel that they have left the
conference with a complete picture of all the evidence, the issues and their options and be
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prepared for what is to come. If you are advising on the merits of the case, they need to
know what evidence there is for them, what evidence there is against them, what issues are
likely to arise, what issues they need to address and what they will face if the matter goes
to court. Fundamentally, they need to be given the clearest idea, as the situation permits,
of the likely outcome. A list of what is favourable and what is not favourable does not go far
enough.

Your advice should be expressed cautiously as, at this stage, you are advising merely on the
papers – this is just an indication of what people might say. You do not have a crystal ball
and cannot predict with precision what the outcome will be. For example, a witness may
come across to the tribunal far more credibly than they do on paper. The client needs to
appreciate that this is an opinion, not a prediction. Some cases are easier to give definite
advice on than others. Where the evidence is overwhelming, it is easier to give a more
accurate prediction. Where a case depends on the credibility of witnesses, it may be more
difficult.

You should discuss with the defendant whether they should give evidence or not and the
pros and cons of doing so. They are not obliged, at this stage, to make a decision about
giving evidence. You must however address this with them so that you have a sense of how
the trial is likely to look. You should give them your opinion as to whether they ought to
give advice and your explanation for your opinion – remembering that the decision is theirs
to make.

As regards Samantha Jones, your advice will depend largely on the information she has
given you. Although burglary is a serious offence and there is a previous failure to surrender
conviction and a previous theft conviction (factors which go against the grant of bail), there
may be other factors (derived from the conference) that lead you to the opinion that bail
will be granted. For example, it may be the case that she was with Melvin Hall purely by
chance. It may be the case that she did participate in the burglary but her role was
peripheral. Additionally, she has strong roots in the community; can give a valid explanation
for the previous failure to surrender; is able to provide a surety and will comply with
conditions such as residence, reporting to the police station and/or curfew.

IX ETHICAL CONSIDERATIONS

What Advice Should You Give To A Client Who Admits Guilt But Wants To Pursue A
Not Guilty Plea.

A fundamental principle of the UK justice system is that a defendant is deemed innocent

until proven guilty. Consequently, a defendant does not have to prove his/her innocence; it
is for the prosecution to prove their guilt. This means that it is perfectly permissible for a
defendant, who has admitted their guilt to you, to pursue a not guilty plea. You will not
breach any professional conduct rules if you represent a defendant who has admitted their
guilt to you AS LONG AS YOU DO NOT MISLEAD THE COURT. If a defendant admits
their guilt (or they are guilty in law because they do not have a defence to the charge/s
they face), they should be advised of the benefits of entering a guilty plea (most,
significantly, the sentence reduction they will receive for entering a guilty plea). They should
also be told that they can still enter a not guilty plea and have the Prosecution prove the
case against them. They should be told that if they choose the latter option however, the
most that you can do is to put the Prosecution to proof. What this means is that you cannot
accuse any witnesses of lying and you cannot put forward a defence. The most that you can
do is to test the Prosecutions’ evidence to see if it meets the criminal standard of proof. You
would need to advise your client that if they wanted you to advance a defence on their
behalf or question witnesses in a way that expressly or implicitly asserted that they were
lying, you would be professionally embarrassed and would have to withdraw. If during an
assessment, you advised a client who admitted guilt that you could represent them and that

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they could put forward a defence and/or you would challenge the Prosecution witnesses
beyond testing the evidence, you would have committed a Fatal Flaw and your mark would
be 0%.

What Advice Should You Give To A Client Who Has A Defence But Their Defence Is
Weak And/Or The Prosecution Case Is Strong.

You may form the opinion, after hearing what your client has to say in response to
allegations made against them, that a conviction is likely. You are perfectly entitled to tell
your client what you think the likely outcome will be. What you must not do, in
circumstances where a client has a defence, is to advise them to enter a guilty
plea (even if you think a conviction is likely). To advise someone to enter a guilty plea
when they have a defence is unethical. If you gave this advice during an assessment, it
would constitute a Fatal Flaw - meaning that you would automatically fail the assessment
and be awarded a mark of 0%. In the circumstances outlined, a client should be advised
that they have a defence, and the appropriate plea is, therefore, not guilty. They should
receive advice about the strengths and weaknesses of the case, and you should give them
your opinion as to the likely outcome. Ultimately, plea is a matter for the defendant and a
defendant who has a defence to the allegations against him/her is free to enter a guilty plea
based on your evaluation of the case. However, this should be their own decision and not
because you have advised them to enter a guilty plea.

How Should You Approach Advising On Sentence.

You may be instructed to provide advice on sentence following a guilty plea and/or
conviction. Even in the absence of specific instructions to advise on sentence, it may be
appropriate to give advice on sentence. An example of when it would be advisable to give
advice on sentence in the absence of specific instructions, would be a conference prior to an
allocation hearing. At an allocation hearing, a judge must determine whether the case can
be heard in the Magistrates’ court or has to go to the Crown Court for trial. This decision is
primarily based on the sentence that a defendant would receive upon conviction.
Consequently, you would need to give advice on the likely sentence so that the defendant
can make appropriate choices regarding the venue for trial.

As with any other advice that you give to the defendant, advice on sentence must be clear,
accurate, appropriate, and relevant. The advice that you give will be based on the
sentencing guidelines for the offence. You will discover that each offence has specific
guidelines which address several factors. For the advice to be relevant and meaningful to
the client, it is important that the client not receive a sentencing lecture. It is your job to
explain sentencing principles in a way that can be easily understood, and which addresses
the client’s concerns (which is likely to be, what sentence will I receive!!). You also need to
provide the justification for the sentence range given. As this is not a science, it is unlikely
that you will be able to give a precise sentence figure/disposal. More than likely, you will be
giving the client a sentence range. The guidelines should make this relatively
straightforward. Occasionally, the circumstances of the offence/offender may straddle two
sentencing possibilities. A defendant could face a custodial sentence for example, but it may
be possible to persuade a judge to impose a non-custodial sentence. If you are faced with
this scenario, you should address all relevant possibilities.

X TAKING INSTRUCTIONS.

You serve the client not the other way around. As much as you are the expert, you act on
their instructions. It is important that you get their instructions when required and for them
to give you instructions they should have received from you clear and complete advice.

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Ensure that their instructions are clear and, if necessary, get the client to endorse the brief.

XI CONCLUDING THE CONFERENCE

You must ensure that you take clear instructions (where instructions are needed). Time
permitting you may want to advise them on what will happen next. For example, it would be
a good idea to explain to Samantha what will take place in court. Ensure that you address
any ancillary issues that will impact the defendant.

Throughout the conference you should be courteous and polite.

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NOTTINGHAM LAW SCHOOL

THE BARRISTERS TRAINING COURSE

CONFERENCE ASSESSMENT CRITERIA

PREPARATION 10%

• Ability to adapt/be flexible.

• Identify the facts, procedure, law and evidence relevant to the case.
• Identify the issues relevant to the case.
• Identify objectives of the conference

INTERACTION/COMMUNICATION 20%

• Appropriate/clear language, manner and tone – avoids jargon.

• Not judgemental.
• Listens carefully and actively.
• Appropriate body language.
• Ensures client understands advice.
• Established rapport with client.

STRUCTURE 20%

• Has a clear, appropriate agenda.

• Efficient time management.
• Follows a logical order.
• Manages conference effectively.

QUESTIONING 20%

• Uses an appropriate questioning technique.

• Asks appropriate follow-up questions.
• Appropriate use of prior instructions.
• Identifies and addresses any discrepancies, omissions, gaps and/or ambiguities in the case.

ADVICE 30%

• Accurate, realistic, full, clear and appropriate advice.

• Options explained to client.
• Instructions taken.
• Demonstrating sound judgement.
• Provide accurate factual analysis of the case.

FATAL FLAW:
A student will fail a skills assessment if it is found that they have committed a “fatal flaw”,
even if they have otherwise gained sufficient marks in order to pass. A fatal flaw could be, but
is not limited to:
• A significant and grave error of law or procedure;
• An error in legal or case analysis that is so clearly incorrect that it would put the
interests of the client(s) at risk;
• An error in legal or case analysis that is so clearly incorrect that it puts the barrister
at risk of liability for negligence or a disciplinary finding.
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