Institute of Advocacy Exam key terms

A client's right to prevent disclosure of confidential communications made for the purpose of obtaining legal advice, or made in preparation for litigation. It belongs to the client, not the lawyer, and survives the retainer's end.

The lawyer's duty not to reveal information about a client's affairs learned in the professional relationship. It is broader than privilege, covering matters never intended for litigation, and continues after the retainer ends.

A situation where a lawyer's duties to one client, or the lawyer's own interests, risk materially limiting the lawyer's ability to act loyally and independently for another client, requiring informed consent or withdrawal.

A client's agreement to a course of conduct given after full and fair disclosure of the material risks and alternatives, so that the client can make a genuine choice about how the retainer proceeds.

A personal promise given by a lawyer, often to another solicitor or a court, to do or refrain from doing something. It binds the lawyer personally and may be enforced as a professional obligation.

The principle that a barrister must accept any brief in a field in which they practise, at a proper fee, unless a recognised exception applies, so that unpopular clients can obtain representation.

A label on settlement communications that prevents them being put before the court as admissions, protecting genuine attempts to compromise a dispute. It does not apply where the communication is merely tactical or contains threats.

A settlement offer marked without prejudice save as to costs, which the offeror may show the court after judgment when arguing that the offeree should pay costs for unreasonably rejecting it.

A binding contract resolving some or all issues in dispute, often recording payment terms, releases and confidentiality. Once concluded it can be enforced, and a party may need court approval to depart from it.

A court order made with the agreement of all parties, embodying the terms they have settled. It carries the court's authority and can be enforced like any other order.

A confidential, voluntary process in which a neutral third party helps disputing parties negotiate their own resolution. The mediator has no power to impose an outcome on them.

A private dispute resolution process in which the parties agree to be bound by the decision of an appointed tribunal. Awards are generally final and enforceable, with limited grounds of challenge.

A formal written statement of a party's case, setting out material facts relied on and the relief sought. It defines the issues and confines the evidence that may be adduced at trial.

The document by which a claimant initiates or sets out the cause of action, pleading the material facts, the legal basis and the remedy sought, so the defendant knows what must be answered.

The document in which a defendant responds to the claim, admitting, denying or requiring proof of each allegation and raising any affirmative defences or counterclaims.

Specific details supplied to clarify a pleaded allegation, such as dates, words used or the nature of alleged negligence, so the opposing party can understand and meet the case.

A request, or court order, requiring a party to give more detail about an insufficiently specific pleaded allegation. Failure to comply may lead to the allegation being struck out.

A claim brought by a defendant against the claimant within the same proceedings, typically arising from the same facts, allowing both disputes to be resolved together.

A defence allowing a defendant to reduce or extinguish a claim by setting against it a sum owed by the claimant, whether arising from the same transaction or, where permitted, independently.

The obligation on a party to prove a fact or issue to the required standard. In civil cases the claimant generally bears it; in criminal cases the prosecution does, subject to statutory exceptions.

The degree of persuasion required to discharge the burden: the balance of probabilities in civil cases, and proof beyond reasonable doubt in criminal cases.

An out-of-court statement relied on to prove the truth of its contents. Its admissibility is restricted because the maker cannot be cross-examined, though numerous statutory exceptions exist.

A legal inference drawn from established facts unless the opposing party produces evidence to displace it, such as the presumption that a posted letter was received.

The questioning of an opposing party's witness, aimed at testing accuracy, credibility and consistency and at eliciting favourable evidence, using leading questions where permitted.

The questioning of a party's own witness to elicit their evidence in a clear, chronological account, generally without leading questions except on undisputed or introductory matters.

A question that suggests the answer or assumes a fact in dispute, such as 'You saw the car, didn't you?'. It is generally barred in examination-in-chief but permitted in cross-examination.

A witness whose evidence is adverse to the party calling them, allowing the court to permit that party to cross-examine the witness and, in some cases, impeach their credit.

The pre-trial obligation to identify and make available to the other side documents relevant to the issues, including documents adverse to one's own case, subject to claims of privilege.

A procedural hearing at which the court gives directions on timetabling, disclosure, expert evidence and trial preparation, and may sanction non-compliance with costs orders or strike-out.

An order requiring a party to comply with a direction by a stated date, failing which their claim or defence is automatically struck out without a further hearing.

The court's power to dismiss a statement of case that discloses no reasonable grounds, is an abuse of process, or breaches a rule or order, bringing that part of the proceedings to an end.

Judgment entered without trial where the court is satisfied that a party has no real prospect of succeeding and there is no other compelling reason for a trial.

The statutory time within which a claim must be brought. Expiry bars the remedy, not the right, and must be pleaded as a defence to be effective.

The legal principle or rule on which a court's decision actually turns, and which binds lower courts in later cases applying the doctrine of precedent.

A remark by a judge on a point not necessary to the decision. It is persuasive rather than binding, though it may carry weight depending on the judge and the strength of reasoning.

A technique of avoiding a binding precedent by showing that the material facts of the present case differ from those of the earlier decision, so the rule does not apply.

A higher court's declaration that an earlier decision of a lower court is wrong and no longer good law, distinct from reversing the outcome of the same case on appeal.

The agreement, express or implied, by which a lawyer is engaged to act for a client. It defines the scope of work, the basis of fees and the extent of the lawyer's authority.

A written statement, given at the outset and updated as needed, of the likely overall cost of the matter and its main components, so the client can budget and instruct on a proper basis.

A funding arrangement in which the lawyer's fee is payable only, or at a higher rate, on a successful outcome, subject to statutory regulation and caps on the success fee.

An order limiting a party's liability for the opponent's costs, typically used to allow public interest litigation to proceed without the risk of crippling adverse costs.