PERSUADING REGULATORS ADVOCACY TO AND FOR REGULATORS Chaired

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PERSUADING REGULATORS: ADVOCACY TO AND FOR REGULATORS Chaired by Sir Gerald Barling MONDAY 20

PERSUADING REGULATORS: ADVOCACY TO AND FOR REGULATORS Chaired by Sir Gerald Barling MONDAY 20 JULY at 1 pm Jemima Stratford QC Marie Demetriou QC Robert O’Donoghue QC brickcourt. co. uk +44(0)20 7379 3550

AIMS • The art of advocacy • How to persuade (telling a compelling story)

AIMS • The art of advocacy • How to persuade (telling a compelling story) • Aim = you are/your client is right/closer to right than others • Written and oral advocacy – linked techniques/skills brickcourt. co. uk +44(0)20 7379 3550

THE BEST ADVOCATES • Making the complex sound simple • Identifying best point/points •

THE BEST ADVOCATES • Making the complex sound simple • Identifying best point/points • Remember that less is more • David Pannick QC 'As Lord Pannick QC put it for Mrs Miller, when ministers give [the Article 50] Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. ’ brickcourt. co. uk +44(0)20 7379 3550

BE THE TRUSTED GOLD STANDARD IN WRITING • Expect blizzard of documents from other

BE THE TRUSTED GOLD STANDARD IN WRITING • Expect blizzard of documents from other parties, many long • Become the go-to source. The trusted experts • Firm on good points and not clinging on to bad points (part of “straight bat”) • Acknowledge where there is unavoidable uncertainty • Above all, maintain credibility through extremely careful drafting (imagine being challenged on every point and be sure can justify) brickcourt. co. uk +44(0)20 7379 3550

BE THE TRUSTED GOLD STANDARD AT HEARINGS • Most of the same guidelines apply

BE THE TRUSTED GOLD STANDARD AT HEARINGS • Most of the same guidelines apply • Think really carefully about what will come across well orally (simplify) • Write for oral delivery • Think hard about your audience • What will appeal to them • Burden on them • What will they need extra help with/be troubled by brickcourt. co. uk +44(0)20 7379 3550

THE AUDIENCE • The panel members (high level) • The CMA staff (working level)

THE AUDIENCE • The panel members (high level) • The CMA staff (working level) • Do not assume knowledge of your methodology or experiences • Do not assume knowledge of technical terms (redefine at start of each document for ease) brickcourt. co. uk +44(0)20 7379 3550

STRUCTURE OF DOCUMENTS • Signposting (within document, within sections and also between documents) •

STRUCTURE OF DOCUMENTS • Signposting (within document, within sections and also between documents) • Simple structure (reader (1) knows where going and (2) can easily go back to find/remember key points) • Generally best point first • Be proportionate – large/contentious issues will need more supporting reasoning/evidence than small/less contentious • When and how to use repetition (summaries/conclusions) brickcourt. co. uk +44(0)20 7379 3550

TIPS FOR PUNCHY DRAFTING • Use of numbering (e. g. numbered sections, number of

TIPS FOR PUNCHY DRAFTING • Use of numbering (e. g. numbered sections, number of points) • Use of bold (key/memorable phrases) • Use of footnotes • Use of annexes/appendices • Generally, one (main) point per paragraph brickcourt. co. uk +44(0)20 7379 3550

HOW TO PERSUADE • • • Step by step reasoning Usually (1) big point

HOW TO PERSUADE • • • Step by step reasoning Usually (1) big point followed by (2) supporting detail/reasoning Using evidence carefully Include specific references to evidence what evidence was lacking and why is this important: information asymmetry • Using alternative points • Giving very specific cross-references to other materials brickcourt. co. uk +44(0)20 7379 3550

TONE • • • Try to imagine best drafter you know in your head!

TONE • • • Try to imagine best drafter you know in your head! Confident, authoritative and expert Positive Considered Diligent Balanced brickcourt. co. uk +44(0)20 7379 3550

THINGS TO AVOID • Show, don’t say ‒ Assertion is not the same as

THINGS TO AVOID • Show, don’t say ‒ Assertion is not the same as argument • Avoid dialling it up ‒ Use adjectives/adverbs sparingly: ‘We strongly disagree. There is a complete lack of evidence for this argument, and it is therefore entirely mistaken. ’ Avoid dialling it down, civil service style e. g. ‘far from satisfactory’ Avoid emotive language Avoid statements of ‘belief’ brickcourt. co. uk +44(0)20 7379 3550