Legal Success Part 1: Good Advocacy
In a special four part series exclusive to Law and More, Dr Joshua Wilson SC of Owen Dixon Chambers West will be sharing his insights on how to succeed in the legal profession, influenced by his decades of experience in court and teaching across the world.
Dr Wilson SC has been practising as a barrister in Australia for over 25 years. His expertise derives from worldwide advocacy experiences and he is usually found in the Supreme Courts and Federal Court of Australia dealing with commercial and equity cases. A legal genius (Josh took Silk in 2008 and holds a PhD in extradition law!) and with a large topping of good humour, Law and More proudly presents Dr Joshua Wilson SC's guide to success in the legal profession.
This week, Dr Wilson SC gives Law and More readers his Top Ten Points of Good Advocacy Worldwide:
Good advocacy is a special skill. Not everyone possesses it. Those skilled in it can be formidable if not deadly opponents. Those lacking in its training can be feeble and easy targets. Advocacy is a skill that can be learned, very few people are born with it.
The ten point list set out below may not convert you overnight into some F B Smith (Lord Birkenhead) or into a Sir Owen Dixon nor even into a Clarence Darrow. But I am willing to wager that if you adhere to the ten points set out below, those being time honoured beacons of good advocacy, your performance will definitely improve. Keep in mind, though, that improvement comes from constant practice and refinement of your skills.
In order of importance the top ten points are:
1. Ethical and professional performances at all times
2. Complete mastery of all relevant facts and law
3. Know your court
4. Formulate a good case concept
5. Keep your case tight
6. Put your case as high as circumstances permit
7. Formulate the issues the judge needs to rule on
8. Keep documents under close management
9. Concede when you need to do so
10. Think about using aides
POINT ONE - ETHICAL AND PROFESSIONAL PERFORMANCES AT ALL TIMES
It may seem hardly necessary to even list this one, let alone rank it as number one. But ethical propriety must govern everything you do. You have an overriding duty to the court, no matter how important a case may be to your client or the firm that instructs you. Clients will come and they will go but your reputation will remain with you forever. Like all of us in this profession, you will spend your whole professional life gaining and maintaining a good one. If you besmirch your good reputation with one case in which you behaved unethically or professionally improperly, you will lose the respect and trust of the bench. Some advocates never regain that and they are then forced to pursue a calling elsewhere as a result.
In some cultures, especially those in the south pacific, a person’s abiding loyalty is first and foremost to his or her tribe, or wantok. This loyalty leaves little to no room for the discharge of duties to the court. Where those duties clash, especially in countries with common law courts, the outcomes can be astounding.
So, point number one is act at all times ethically and properly thereby discharging duties to the court and to the profession.
POINT TWO – COMPLETE MASTERY OF ALL RELEVANT FACTS AND LAW
Anyone can stand on his or her hind legs and make a speech about some aspect or some issue in your case. You are not retained for that purpose alone. Nor is your client paying for you to swan in and swan out of the case by addressing standalone points with no cohesion in the overall. Your job is to take the case from start to finish knowing every tiny little factual aspect, if some conflict exists on the facts who is the more believable on certain points, why it is critical for your witness’s evidence to be accepted over the contradictor’s on some point and why the learning in the cases as proposed by you should be preferred over your opponent’s. If you are not on top of those matters stay home or play golf as without that you will be of little help to your client. In short, you must be on top of every aspect of your brief and know your case inside out - warts and all.
POINT THREE – KNOW YOUR COURT
This point generally leads to calls from those untutored in the delicate art of advocacy that you, as the sophisticated advocate have some kind of home town advantage over your opponent. Not true. It is essential that you get to know, ahead of your trial or application, what are your judge’s likes and dislikes in the conduct of your trial, motion or application. It may sound strange that you need to know all the idiosyncrasies of every judge on the south eastern circuit. If you don’t already know those likes and dislikes, ask a colleague. Some judges have an allergic reaction to hard swearing oath on oath cases being traversed on a witness statement or affidavit. Most judges require the witness to give the evidence from his or her own mouth so that the court can assess how much of it is really credible and how much is embellishment.
In criminal cases, a judge’s attitude to particular offences is essential. You can only make sensible submissions about sentence if you know that judge’s particular disposition to the particular offence. You need to know what your judge’s attitude is likely to be to a particular crime or cause of action in a civil context.
So, the lesson to be gained from point three is that you must know the likes and dislikes of your bench and you must trim your sails accordingly.
POINT FOUR – FORMULATE A GOOD CASE CONCEPT
Some readers may find it curious that a concept, being so critical to good advocacy, ranks no higher than fourth. The answer is simple. The first three points in this list are ethics based and if you don’t comply with those you won’t be practising at all.
The case concept is your overall position in the litigation. It’s best answered in response to the chat with a colleague who asks “So, what’s tomorrow’s case all about?” In answer you might say “it’s a breach of bailment case”. Your friend then asks who you are for and what your position is to which you say ”I’m for the bailee who contends that the goods were destroyed by fire while under bailment but without negligence on his part”. Or take the simple case of negligence in a personal injuries case where a plaintiff is injured falling form a ladder and sues the ladder manufacturer. The coffee conversation proceeds thus “I’m for the ladder manufacturer in a personal injuries case and it says there was no negligence on its part”.
The real skill is getting the case concept right. For example, in a revenue case (absent miracle) it will be pretty hard to contend that your client is not amenable to the imposition of tax. But if your client instructs you he didn’t do the crime as he was not even in the country at the time of the offence, then identity will be front and centre in your case concept.
Some cultures have real trouble with the concept of the case concept. Maybe that’s a function of their more laisez-faire attitude to life or perhaps the steely mental discipline of western case presentation is anathema to them. It can be a tricky issue for some yet it is an essential right of passage for good advocacy.
POINT FIVE – KEEP YOUR CASE TIGHT
No wandering – no meandering. Stick to your case concept and present only that.
Some advocates use humour to their advantage as they are naturally funny. In Australia most of us can have a laugh at our own expense. But court is always a very serious place for the litigant or for the accused as the outcome might not be so good for them. So remember, if you find humour easy, reserve it for the dinner party as the judge and the client will not appreciate humour at their expense.
Plenty of barristers will want to add colour and movement. They think that it is necessary to acquire the moral high ground so that the judge feels empathetic to their client’s plight. So, in a breach of contract case, for example, they will spend far too long telling the judge why the defendant breached the contract. Does the judge need to know why? Isn’t the issue whether there was a breach at all? If the latter, get to the point and avoid playing the blame game, no matter how apparently seductive it might be to do so.
POINT SIX – PUT YOUR CASE AS HIGH AS CIRCUMSTANCES PERMIT
This might be folklore but in my experience it is a truth – the English are universally polite, even in court, but the South Africans and Australians approach court as they approach cricket and rugby – aggressively.
It is essential that you approach the evidence in your case in a manner that is consistent with the circumstances of your client’s case. If you need to cross-examine hard because on your instructions the witness is a liar, then there is no point being polite and delicate about it all.
This approach can lead to rebuke from the bench if not reserved for the right occasion. Knowing how and when to go in hard is not the same as being rude, obnoxious or insulting to a witness. The former will be tolerated - the latter will not.
POINT SEVEN – TAKE CARE TO FORMULATE THE ISSUES THE JUDGE NEEDS TO RULE ON
Nowadays, most litigation, whether civil or criminal involves the judge knowing from the start what the issues are on which he or she must rule or write a judgment. The trend seems to be nowadays for one opening to follow the other so that the judge is told how much is common ground and what are the contentious issues. That makes very good sense and it assists the court in time management. So work out before you get to court what the issues are. It can be as broad as “Did the seventh defendant assault the second plaintiff?” Or it may have some legal complexity such as “Is the plaintiff guilty of laches and thereby disentitled to a quia timet injunction”. Formulating the issues can often help with an opening as you will inevitably have to tell the judge the issues on which the judge must resolve conflicting evidence.
POINT EIGHT – KEEP DOCUMENTS UNDER CLOSE MANAGEMENT
In high volume document cases the simple management of documents can be a nightmare. At the very least it is essential that you keep up with documentary exhibits. In electronic cases document handling can be a real challenge as most of us are best placed with hard copy documents. There is no perfect way to address this issue otherwise than by saying that you need to keep on top of the documents. There is little more embarrassing than the freeze you suffer when your leader calls for you to hand to him or her that letter from the defendant that rebuts what the plaintiff is now saying in the box but you can’t lay your fingers on that damn letter!
Find your own style. Some favour the post–it notes tags at the page top. Others colour code pages. Others physically remove the court book pages and create their own folder of important documents. Do what works for you but get a system going early.
POINT NINE – CONCEDE WHEN YOU NEED TO DO SO
This sounds more like a wave the white flag point. It’s not. You should concede points that are reasonable to concede and to do otherwise by maintaining an unarguable point simply makes you look bad.
That’s not to say you give away the farm. Far from it. There are points where the evidence is open on either version and the judge must rule on the version the judge prefers. Press your version hard. But if the point is of no great moment and you can easily sacrifice it without burning the rest of your case, do so. It will make you appear all the more sensible and it will show that you don’t take silly points and you don’t thereby waste the court’s time.
POINT TEN – THINK ABOUT USING AIDES TO ASSIST WITH PRESENTATION
This is not a case winner of itself but it helps. We are in the realm of making difficult factual circumstances easier for a judge to follow. So why not create a flow chart to trace the flow of money and put it forward as a working tool and not as a piece of evidence? Or a dramatis personae? Or an enlarged photograph of the locus in quo? All help, even if they have no evidentiary value. Keep on mind that judges are extremely busy people and their time is short so anything you can do to help them get to the essence of your case is helpful to them.
Check back next week for Part 2 of Law and More's Legal Success special. Dr Joshua Wilson SC will give Law and More readers his Top Ten Points for Great Instructing Solicitors.
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