Sunday, 8 May 2011

The First Five "Without Prejudice" Podcasts

"Without prejudice" is a common but precise legal phrase. It is not often understood by non-lawyers nor, surprisingly, even by many lawyers.

What "without prejudice" covers is the correspondence and discussions between parties to a civil dispute (not criminal litigation) which invariably takes place alongside the formal (indeed, formulaic) and "open" exchanges.

The formal and "open" communications can, if the case goes to court, be put before the judge. However, "without prejudice" communications are without prejudice to the formal communications and usually are not put before a judge.

Accordingly, it is under the umbrella of "without prejudice" that the real meat and thrills of civil litigation take place: the deal-making and the positioning for the best possible settlement. Almost all civil disputes end in settlement, and so an understanding of the dynamics of "without prejudice" exchanges are crucial to understanding the real nature of civil litigation.

In contrast, "open" statements of the parties' positions, and the case reports in the event there is no settlement, at best tell you half the story of what is really going on between the parties.

Although academic lawyers - oddly - seem to think law is about the decided cases they teach about in class and write about in textbooks, in practice formal case-law plays a very small role: referring to it may provide some advantage in strengthening a party's position - but it is far less important than say procedural rules and legal costs as an influencing factor.

And so when Charon QC, the doyen of British legal blogging, Carl Gardner and I were kicking about ideas for a name of a new regular legal podcast, the title "Without Prejudice" was, for me, immediately appealing.

The special legal meaning of "Without Prejudice" - as well as its obvious lay meaning - signifies that this podcast is going to try and "get behind the scenes" of legal stories in the news.

Although between the three of us we should (and sometimes do) know the substantive law (what the cases or statutes actually say) is in respect of any relevant legal news story, what interests us most is to seek to explain - to use the name of another legal programme - the law in action.

We hope we are well placed to do this. Charon QC has an encyclopedic knowledge and sharp understanding of the mechanics of the legal world; Carl Gardner is an accomplished government lawyer with rich experience of advising both decision-makers and those implementing policy; and I am a jobbing media and commercial lawyer-journalist, with no academic pretensions, but with an intense curiosity as to how some legal cases end up the way they do and a skepticism about what other people tell me. We also attempt to have a guest on each podcast, generally a non-lawyer, to participate and ensure there is a fresh voice.

We have now done five of these podcasts, and early problems about sound and manner have been addressed. The latest podcast is, we think, the best yet, and covers the assassination of Bin Laden and the unlawful death of Ian Tomlinson.

The general link to the podcasts is here, and the there is an iTunes feed here and a RSS feed here.

And the five podcasts so far...please download, listen and, we hope, enjoy:

Without Prejudice I - with guest Joanne Cash: the Assange extradition, the British bill of Rights, legal TV drama, etc.

Without Prejudice II - with guest Catrin Griffiths, editor of The Lawyer: sexism in law and practice, contempt of court, libel, etc.

Without Prejudice III - no guest: superinjunctions and other myths, banning crucifixes, expert immunity, etc.

Without Prejudice IV - with guest Dr Evan Harris: TwitterJokeTrial, the Crown, free speech and the criminal law, referendums, etc.

Without Prejudice V - with guest Alex Novarese, editor of Legal Week: Bin Laden assassination, Tomlinson, bribes, etc.

(Key to the voices: Charon QC, Aslan meets Alan Clark; Carl Gardner, think Professor Brian Cox in a lawyer's wig; me, Barry from Auf Wiedersehen Pet.)

All feedback - apart from on my Brummie accent - appreciated below. We especially want to know how we can do to make the podcasts better.


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


Christine Burns said...

I listened to the latest show and agree that you are now getting very much into your stride.

Congratulations from another Podcast maker.

Would it be fair to compare the concept of "Without Prejudice" with the journalistic concept of being "off the record"?

David Mery said...

It would be useful for the RSS Feedburner feed to include the audio enclosures. In its current format, at least some audio podcast applications can't subscribe to the feed as they don't find any audio in it.


Stuart Brown said...

These are cracking podcasts, and in particular thanks for addressing the sound quality issues. Far too many potentially excellent podcasts are ruined by lousy audio quality, and your first couple didn't bode well. The later improvement is noticeable, and much appreciated.

Grania said...

I'm late to the party here with my comments, but I think the quality of the podcasts is excellent, no only in terms of material covered, but also in keeping it accessible for those of us without a legal degree.

As others have mentioned, you have worked on the sound issues and this is a great podcast. I hope you keep going.

Michael Kingsford Gray said...

I concur with David Mery.
I find it exceptionally awkward & fiddly to download the audio via RSS.