Purpose: To improve the skills of litigators in conducting oral advocacy in national courts and ADR tribunals and before the CJEU. For members of the judiciary participating, this module will assist them to ensure that all factual issues are fully explored before considering the possibility of making a preliminary reference under Article 267 TFEU. These purposes can be distilled into two key elements:
- To prepare participants for making submissions and opening and closing speeches;
- To train participants to “sparkle” with freshness and precision (without resorting to “jury advocacy”, a common error in civil advocacy).
Module format: This module will commence with a seminar and discussion explaining the principles of preparing proper opening and closing speeches in national courts and tribunals and emphasise the difference in approach at the CJEU, followed by analysis of effective witness handling. This will be followed by workshops during which the participants will receive further information pursuant to the bundle of materials used during the first three modules and will then practice the specific oral advocacy skills, receiving feedback and guidance in accordance with the “Hampel method”.
Purpose: Whenever a lawyer or judge is instructed on a particular case, it is necessary to determine the theory of the case. Case theory has been defined as:
- “a convincing and logical account of why and how the events in the case are likely to have happened…based on what has to be proved and/or disproved at trial for the case to succeed and consideration of which facts are capable of being proved.”
- “your (best possible) explanation of how the events of your case are likely to have happened.”
In essence it is deciding how all the events unfolded, creating a narrative that fits in with the available evidence and supports your view of the case.
During this module, participants will develop a standard procedure based on their existing understanding of case theory and adapt it to the needs of their individual practice areas.
Module format: Participants will be presented with a bundle of facts relating to a cross-border dispute, with elements of applicable EU law. With the guidance of the trainer, participants will conduct a thorough analysis of the facts through assessing the good facts/bad facts for each side of the dispute, formulating case theories and the development of arguments for and against each party.
Purpose: Legal research is one of the most important skills of a legal professional, which incorporates the ability to ascertain the relevant legal issues, to conduct the research using existing (mainly online) sources, to determine the currency of the law and to apply it to the relevant set of pre-determined facts.
Module format: Having completed the case theory module and identified the relevant questions, it is necessary to identify the legal sources such as statutes and case law which may contain the answers to these questions.
During the module, the trainer will assist participants in efficiently searching for the relevant law on the search engines of the CJEU, the ECtHR, Westlaw and Lexis Nexis, through the ability to identify Key Words to help locate relevant sources as quickly and efficiently as possible, through adoption of the “Cartwheel” method of searching and through the techniques recommended by the search engines to facilitate efficient research. The next step in legal research is the ability to extract and apply the relevant legal principles.
Alternative Dispute Resolution
Purpose: Introducing lawyers to the essential skills necessary effective ADR, focussing on mediation, arbitration and negotiation. The module will consider the differences between a mediator and a mediation advocate, the transferrable skills used by arbitration and negotiation advocates.
Module Format: Having conducted case analysis and fact preparation for Modules 1 and 2, participants will be presented with alternative sets of facts and prepare to act in one of the three forms of ADR presented. Similar to the oral advocacy module, participants will actively perform and develop the essential skills through practice.
Purpose: To establish common-sense, practical and standardised skills guides for drafting particulars of claim, written submissions and witness statements, for use in national courts and ADR centres, as well as before the CJEU.
Module format: Having already conducted the case theory and legal research, participants will continue with the same bundle of materials to draft particulars of claim and written submissions, with guidance from the trainer and use of a skills guide for each type of document.
Witness statements are intended to be written by the witnesses themselves, as they must prove the information provided in the statement in a court or tribunal. It is common, however, for counsel to draft these statements in the presence of the witness, to ensure that it contains all the essential elements. Developing the skill of witness statement drafting is therefore essential, and will be conducted through conference with individuals acting as witnesses, and participants being required to draft the witness statements based on their attendance notes from the conference.
An example of a checklist for drafting an appropriate witness statement may take the following form:
- Does it establish all legal and any procedural essential elements?
- Have you properly referred to all necessary documents?
- Does it say what the witness wants to say and, in general terms, how they want to say it?
- Is it consistent with the instructions and, possibly, any statements of case?
- Is it coherent and reads well?
- Is it simple and concise?
- Is the terminology appropriate throughout the statement?
Professional ethics shall be considered throughout the conduct of this module.
Recognition of Foreign Judgments in EU law
Purpose: The module examines the key aspects of conflicts of laws principles, as they apply in the context of litigation concerning commercial matters within the European Union. The rules for the exercise of jurisdiction will be discussed and developed using practical examples of cases falling within the scope of harmonized provisions of EU law, and properly identifying when issues fall outside their scope.
Module Format: This module will continue with additional facts added to the scenarios to be dealt with in Modules 1 and 2, and will require the application of specific module skills to the substantive and procedural issues falling with the scope of jurisdiction and choice of laws in the EU.
Application of Fundamental Rights
In this module, participants will learn how to consider and apply fundamental rights before national courts, drawing on the various sources of fundamental and human rights in the multi-level legal system of the European Union.
Preliminary Rulings: Art 267 TFEU
Purpose: Providing guidance and best practices to lawyers on preparing draft questions to present to national judges when requesting preliminary references.
Module Format: Presenting participants with skills’ guides for drafting questions and brainstorming factors that are relevant to consider when drafting appropriate questions that have as their goals (a) to increase the chances of the CJEU Secretariat accepting the question for review, and (b) persuading national judges of the necessity of making the reference in the form requested.