Institute of Advocacy Exam flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Duty to the court

An advocate's paramount obligation to the tribunal: never mislead it, correct inadvertent errors of law or fact promptly, and disclose adverse authority, even where this harms the client's case.

Confidentiality after retainer

The duty of confidentiality survives the end of the retainer and the client's death. Exceptions include client consent, statutory compulsion, and disclosure needed to prevent imminent serious harm.

Conflict of interest test

A conflict arises where a personal interest or a duty to another client creates a substantial risk of material interference with independent judgment. Former-client matters turn on materiality of confidential information.

Client account rules

Client money must sit in a designated account separate from office funds, be reconciled regularly, and never fund the advocate's own expenses. Misuse is disciplinary regardless of repayment.

Undertaking

A personal promise by the advocate, binding on the individual rather than the firm. Give one only where performance is within your control, record it in writing, and diarise the deadline.

Case theory

A single explanatory account answering what happened, why it happened, and why the tribunal should prefer your version. Every fact and document must fit it or be explained.

Elements mapping

Listing each legal element of every cause of action or charge and matching it to the specific evidence that proves it. Elements without support become priority tasks.

Chronology

A dated timeline of events, documents, and procedural steps prepared before drafting. It exposes gaps, contradictions, and limitation problems in the case.

Reverse-engineering the opponent's case

Stating the opponent's theory in its strongest form, listing the findings of fact they need, and preparing a fallback position for each adverse finding.

Noting up

Checking every authority relied on through a citator to confirm its pinpoint citation and whether it has been reversed, doubted, distinguished, or superseded.

Purposive interpretation

Reading a statutory provision according to ordinary meaning in context and in light of the statute's purpose, resorting to extrinsic material only where permitted or ambiguity exists.

Mandatory versus directory requirements

A distinction turning on whether the statute intends invalidity as the consequence of non-compliance. Mandatory requirements invalidate the act; directory ones do not.

Advice structure

Question presented, short answer, assumed facts, applicable law with citations, application to facts, risks and alternatives, recommendation, and next steps with deadlines.

Material facts

The facts a party must plead to disclose a complete cause of action or defence. Evidence and pure law are not pleaded; each allegation must be specific enough to be traversed.

Alternative pleading

Pleading inconsistent versions of events in the alternative, permitted only where each version is genuinely open on the evidence and clearly identified as an alternative.

Submissions skeleton

Relief sought, agreed facts, issues for determination, argument per issue with proposition and authority, anticipated counterarguments, and a conclusion with a numbered orders list.

Pinpoint citation

A citation identifying the exact paragraph or page of an authority relied on, used with short quotations that never omit a qualifying clause.

Evidential burden

The obligation to adduce sufficient evidence on an issue to justify the tribunal considering it. It shifts between parties as evidence is led, unlike the legal burden.

Leading question

A question suggesting the answer. Generally barred in examination-in-chief except on introductory or undisputed matters, and freely permitted in cross-examination.

Prior inconsistent statement

An earlier account contradicting the witness's testimony. Show the document, allow explanation, then prove it by admissible means following the jurisdiction's statutory procedure.

Hostile witness

A witness whose evidence is adverse to the party calling them. The court's leave must be obtained before cross-examining them, after which the prior statement may be used.

Expert's overriding duty

The expert's duty is to the court, not the instructing party. Reports must state this duty and be independent, within the expert's field, and based on sufficient facts.

Opening minute

The first minute of oral argument, in which counsel states the relief sought and a one-sentence theory of the case so the bench knows what is wanted.

Bounded concession

Acknowledging a weakness early and in your own words, so that the concession is limited to the specific point rather than extracted point by point by the bench.

Roadmap

A short statement at the start of submissions setting out the order of argument and the time allocated to each issue, which counsel then keeps to.

Summary judgment standard

Judgment without trial where the claim or defence has no real prospect of success and there is no other compelling reason for trial. It is not a prediction of who will win.

Abuse of process stay

A stay granted where delay, manipulation, double jeopardy, or a breached promise not to prosecute makes a fair trial impossible or the process oppressive.

Costs follow the event

The starting rule that the unsuccessful party pays the successful party's costs, subject to adjustment for settlement offers, conduct, and proportionality of the costs incurred.

BATNA

The best alternative to a negotiated agreement: what you will do if no deal is reached. It sets your reservation value and must be calculated before negotiating.

Zone of possible agreement

The range between the parties' reservation values within which a deal is possible. If the values do not overlap, no ZOPA exists and the correct move is to walk away.

Mediation confidentiality

The rule that mediation is confidential and without prejudice, so statements made in the process are generally inadmissible in later proceedings absent agreement or a statutory exception.

Contemporaneous attendance note

A dated and signed record of client instructions and advice made at the time. Without it, the advice cannot be proved in a disciplinary or civil claim.

Client due diligence

Verifying client identity, identifying beneficial owners, monitoring transactions for suspicious activity, and reporting to the financial intelligence unit without tipping off the client.