LAWS4001 Lecture Notes - Lecture 7: Professional Negligence In English Law, Adversarial System, Precedent
Lecture 7 - Evidence – affidavits and expert evidence
(Week 8 notes)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Preparing witnesses requires an ethical commitment, an understanding of your obligations
in relation to achieving the just, quick and cheap resolution of the real matters in issue
and a strategic sense.
s3.1: A solicitor’s duty to the court and the administration of justice is paramount and prevails to
the extent of inconsistency with any other duty.
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the
client,
4.1.2 be honest and courteous in all dealings in the course of legal practice,
4.1.3 deliver legal services competently, diligently and as promptly as reasonably
possible,
4.1.4 avoid any compromise to their integrity and professional independence, and
4.1.5 comply with these Rules and the law.
s17 Independence—avoidance of personal bias
17.1 A solicitor representing a client in a matter that is before the court must not act as the mere
mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic
judgments called for during the case independently, after the appropriate consideration of the
client’s and the instructing solicitor’s instructions where applicable.
17.2 A solicitor will not have breached the solicitor’s duty to the client, and will not have failed to
give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by
choosing, contrary to those instructions, to exercise the forensic judgments called for during the
case so as to:
17.2.1 confine any hearing to those issues which the solicitor believes to be the real issues,
17.2.2 present the client’s case as quickly and simply as may be consistent with its robust
advancement, or
17.2.3 inform the court of any persuasive authority against the client’s case.
17.3 A solicitor must not make submissions or express views to a court on any material evidence
or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on
the merits of that evidence or issue.
17.4 A solicitor must not become the surety for the client’s bail.
s23 Opposition access to witnesses
23.1 A solicitor must not take any step to prevent or discourage a prospective witness or a witness
from conferring with an opponent or being interviewed by or on behalf of any other person
involved in the proceedings.
23.2 A solicitor will not have breached Rule 23.1 simply by telling a prospective witness or a
witness that the witness need not agree to confer or to be interviewed or by advising about
relevant obligations of confidentiality.
s24 Integrity of evidence—influencing evidence
24.1 A solicitor must not:
24.1.1 advise or suggest to a witness that false or misleading evidence should be given nor
condone another person doing so, or
24.1.2 coach a witness by advising what answers the witness should give to questions which
might be asked.
24.2 A solicitor will not have breached Rules 24.1 by:
24.2.1 expressing a general admonition to tell the truth,
24.2.2 questioning and testing in conference the version of evidence to be given by a prospective
witness, or
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24.2.3 drawing the witness’s attention to inconsistencies or other difficulties with the evidence,
but the solicitor must not encourage the witness to give evidence different from the evidence
which the witness believes to be true.
s25 Integrity of evidence—two witnesses together
25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one
lay witness (including a party or client) at the same time:
25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be
contentious at a hearing, and
25.1.2 where such conferral could affect evidence to be given by any of those witnesses,
unless the solicitor believes on reasonable grounds that special circumstances require such a
conference.
25.2 A solicitor will not have breached Rule 25.1 by conferring with, or condoning another
solicitor conferring with, more than one client about undertakings to a court, admissions or
concessions of fact, amendments of pleadings or compromise.
s26 Communication with witnesses under cross-examination
26.1 A solicitor must not confer with any witness (including a party or client) called by the
solicitor on any matter related to the proceedings while that witness remains under cross-
examination, unless:
26.1.1 the cross-examiner has consented beforehand to the solicitor doing so, or
26.1.2 the solicitor:
(i) believes on reasonable grounds that special circumstances (including the need for instructions
on a proposed compromise) require such a conference,
(ii) has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so,
and
(iii) otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.
Evidence Act 1995
s55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could
rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact
in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
Lay Witnesses
1. Remember to respect your witnesses. Respect their time and their generosity, pay their
expenses if required to do so.
2. While respecting your witnesses, remember that you are asking them to do the impossible
by remembering what occurred one, two, three or even thirty years ago.
3. Remember that the best witnesses are:
a. Honest
b. Not advocates
c. Do not have any axes to grind
d. Have a clear, coherent, consistent story to tell
e. Are not rattled by cross-examination – because they have a clear, consistent story
to tell.
f. Give short answers
g. Listen to the questions
h. Do not try to conceal information
4. Remember, poor witnesses can be any one of or a combination of the following:
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find more resources at oneclass.com
Document Summary
Lecture 7 - evidence affidavits and expert evidence (week 8 notes) Legal profession uniform law australian solicitors" conduct rules 2015. 4. 1. 1 act in the best interests of a client in any matter in which the solicitor represents the client, 4. 1. 2 be honest and courteous in all dealings in the course of legal practice, 4. 1. 3 deliver legal services competently, diligently and as promptly as reasonably possible, 4. 1. 4 avoid any compromise to their integrity and professional independence, and. 4. 1. 5 comply with these rules and the law. s17 independence avoidance of personal bias. 17. 2. 1 confine any hearing to those issues which the solicitor believes to be the real issues, 17. 2. 2 present the client"s case as quickly and simply as may be consistent with its robust advancement, or. 17. 2. 3 inform the court of any persuasive authority against the client"s case. 17. 4 a solicitor must not become the surety for the client"s bail. s23 opposition access to witnesses.
