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Source: p 125, The Art of the Advocate (1993) by Richard Du Cann QC.

  The alternatives of 'I put' and 'I suggest' are also open to objection in that the use of the personal pronoun brings the advocate into the case, and makes it appear that he is giving evidence. This he must avoid as scrupulously as he must avoid voicing his own opinion. For the same reason he must never say in cross-examination to a witness, [1.] 'My client will say ...', or [2.] 'My instructions are that ...'. [1.1] The first is mere hopeful speculation, and [2.1] the second is giving evidence.

I know about lawyer-client privilege that 2 must not violate.

  • But otherwise, what is wrong with 2? How is 2.1 true? Even if the lawyer says something:
  • broad or vague (I am instructed to fight for the best outcome for my client)
  • or obvious (I am instructed to defend against the plaintiff's claims)
  • or anything that has already been submitted as part of the brief (e.g. The brief contains arguments A, B, C; and then the lawyer says that she is instructed to argue for A, B, C)?

I can accept that in such cases, the lawyer is giving evidence of his instructions; but everyone knows the content of the lawyer's utterance already, and so the lawyer is not revealing anything?

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The book that this question, as well as so very many of your recent questions, quotes is not an authoritative ruling on procedure in courts. It would not be possible to present this book as an authority in court, and so it is little more than mere commentary on what one QC believes to be best practice.

There is no rule or law I am aware of that states that solicitors and barristers must not say "My instructions are that". In fact, I have personally seen this in practice in my jurisdiction multiple times.

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  • I once handed all my papers to the judge (it was an emergency, they had been faxed to me, it was the best way of getting the decision at short notice using a cards on table approach). That was, in those circumstances, entirely proper. "I suggest,..." etc are used precisely to avoid giving one's own opinion. Here the author is out of step with modern bar training or practice (in England and Wales).
    – Francis Davey
    Apr 29, 2020 at 11:35

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