Advocacy Second Edition
Cambridge University Press
9780521884 - Advocacy Second Edition - by David Ross QC
The nature of advocacy
The essence of advocacy
 Advocacy is winning cases. Nothing more and nothing less. It consists in persuading a court to do what you want. The court may have serious misgivings, but the good advocate gives it no choice.
 Victory depends on the sort of case and its strength. Can a plaintiff recover more than the payment into court? Is the contract valid and binding? On a murder charge, can you get a verdict of manslaughter?
 Advocacy is important in a wider setting. As McHugh J said, “Advocacy in the courts is a unique profession. Advocates play an indispensable part in the administration of justice.”1
 Court work involves the advocate in all sorts of duties. You must do everything legal to win your client’s case. You must keep up to date with the law in your field of practice.2 You must not mislead the court.3 You must not cross-examine falsely or lead evidence that you know to be untrue. Your private life does not have to be totally without blemish, but of course you must never commit a crime. Honourable does not meanvirtuous.4
The qualities of advocacy
 Advocacy is a craft. Like every craft it can be learned. The techniques have to be acquired, practised and constantly honed. The competent advocate can employ these techniques, but the good advocate is a master of them and moves beyond the craftsmanship that you need in any court appearance. The advocate practising at the higher level of advocacy is an artist with what seems like an easy command of all the know-how. Such an artist does the simple things with supreme style. The master plays the scale better than the pupil.
 Advocacy is played out in a setting that makes it quite different from any other specialty. First, it is done in public. People watch and they judge. Second, every case is different. Not even the newcomer will find the same issues and aspects in every case. Each case has to be custom built. The good advocate will treat every case as the most important ever. It will be prepared and conducted as if it is the last and the one on which the advocate’s reputation hangs – as it does. There will be a different approach to each witness. The strategy is prepared to the finest degree, but the good advocate will watch the witness constantly, be ready to adapt the plan and be alert for the need to improvise. It will look effortless.
The qualities of an advocate
 The basic quality an advocate needs is the wish to be an advocate. You must love and need the court work. How many disciplines are there where you can write a script and play a leading part? But you must be able to survive its demands.
And first, has he a healthy frame, capable of enduring long-continued exertion of mind and body, the confinement of the study, the excitement of practice, the crowded court by day, the vigil of thought by night? Can he subsist with a sleep of five hours? Can he, without dyspepsia, endure irregular meals – hasty eatings and long fastings? If he is not blessed by Nature with the vigorous constitution that will bear all this, and more, let him not dream of entering into the arena of Advocacy.5
And you must do more than just survive. You must embrace it, love it, live for it. Every old advocate will tell you that the best and worst times of life have been inside a courtroom, from euphoria to misery. The most you can hope for is to do the best professional job. The result is not within your power.
 Good physique is not a necessity. Advocates are tall, short, fat, thin, good looking, plain. No doubt the good looking advocate has some attraction, but being well-favoured is probably the least of the qualities an advocate needs. An unhappy physique or unusual looks are never a handicap to one who has the necessary attributes.
 To be a good advocate in court you will need the following qualities:
1. Voice You will sound good. Your voice will be well modulated and you will talk slowly. Quality is more important than volume.
2. Words You will have a good command of words. When questioning a witness you will use simple language that everyone can understand. Your submissions to the judge will be of the same cast. You will be able to express complex propositions simply without being superficial or simplistic. Your talk will have clarity at least, and often eloquence.
3. Order Your submissions and dealings with witnesses will be well ordered and logical. The detailed preparation will be apparent.
4. Courage Court work is civilised warfare, and as an advocate you are the champion of the client. Tenacity will be evident. You will not relinquish a central position without a fight. You will be polite but firm and never be belligerent. You want to win. You are not afraid to be silent. Less talk often has more eloquence.
5. Presence Every good advocate seems to have a presence. It probably derives from confidence. Many advocates battle nerves before court. You would never know it because the fear falls away when the case starts for the day.
6. Observation You will be watching the witness and the judge intently. You will rarely make a note – all the noting must have been done long before.
7. Wit You will be quick-witted. If you have a sense of humour you will never use it for its own sake. An advocate with this quality will use humour sparingly and to help win the case. You will never crack jokes.
8. Emotions You have a good knowledge of human affairs and of human nature. You will not be afraid to use emotions to advance your client’s cause.
9. Law and evidence You will know the statute law that applies to the case and the earlier relevant decisions of courts. The rules of evidence seem second nature.
10. Honesty Your word is your bond. You never take permanent offence at anything said by your opponent in court or out of it, except for perfidy.
 A good advocate will also possess the qualities of wisdom and judgment. These qualities are often employed in ways that could never be discerned by an observer in court. It is impossible for an onlooker to know what argument the good counsel has decided not to put, what evidence was not called, what issues were omitted from cross-examination. In the running of the case the good counsel will have the intuition to touch on a subject and then perhaps leave it alone. Some of those hard judgments are made in preparation and some are made in the instant. Clarence Darrow, the revered American advocate, said:
The trying of cases in courts calls for an acute intelligence, the capacity for instantaneous thought and for deciding what to do in the twinkling of an eye.6
Cases won on admissible evidence
 In an adversary system the judge’s role is to hold the balance between the contending parties without taking part in their disputations.7 The judge will generally be polite.8 A trial or hearing is not a pursuit of truth, not even in a criminal case.9
 Cases are won on evidence accepted by the court. There is a difference between facts and evidence. Evidence on an issue might never be before a court and thus can never be proved.10 It is your role to use your best endeavours to have the evidence in your own case admitted, and the evidence in your opponent’s case excluded.
 A few examples illustrate the point. Documents may be available to prove a defence but they cannot be obtained. A witness may refuse to give evidence on the ground of self-incrimination. In a contract case the limitation period may have expired. In a bigamy case the prosecution might not be able to provide the strict proof of the earlier marriage.11 A confession might be excluded because of improprieties by the police,12 or because it was not recorded by an audio machine.13 An accused may say that the confession is true, and it can still properly be excluded.14
 Thus there may be facts that can never be proved because they can never be put in a legally admissible form. It is your duty to object to your opponent’s evidence which should not or cannot be admitted and which does not advance your own case.
 Evidence may be given on which the fact-finder places no reliance. It may come from a witness who has been effectively cross-examined. The witness could be quite disreputable, but in this case may be telling the truth.
 Many cases win or lose themselves because the evidence and the law that is applied are all one way. In these cases advocacy is rather like an exercise in damage control, for damage control is part of the art of advocacy.15 But a good advocate will win a difficult case. A poor advocate will lose a case that should be won.
How and what to learn
 There is no quick way to learn the skills of advocacy. There is probably no true starting point. One approach is to watch the advocates in the superior courts, particularly in cases where there are witnesses. You will learn how to start and stop a witness and how to direct a witness from one topic to another. This handling of the witnesses rarely appears in the reports of cases or in the books on advocacy. There are special reasons for learning how to guide a witness in this way. The witness is not a lawyer. The witness will not know what evidence is relevant and what evidence is admissible.
 Watch how the good advocate does this so easily:
Can I just stop you there for a moment . . .
Thank you for that. May I now ask you about . . .
And to avoid inadmissible hearsay:
I don’t want you to tell us what was said, but did you then speak to Mr Black?
See how the experts do it. Then try it on your friends in ordinary conversation and find out what works for you.
 Watch the examination and the cross-examination of a witness. You may never be able to discern why a witness was asked about a particular subject, or why not. That is because you have not seen the brief of either advocate, and you have not done the preparation and made the necessary fine judgments. You will, however, learn some techniques on how to handle witnesses of different sorts. Then go away and recall how it was done, and work out how you could do it. You will be surprised at the profit of this reflection.
 There is no limit to what a new advocate can learn from watching senior advocates. Even in the appellate courts you can see the different styles and skills in addressing the bench. In these courts the detail of the argument may be hard to follow. All the evidence and the submissions are in writing and filed with the court well before the hearing. The facts are a given. Spoken submissions are designed to advance the advocate’s position and reduce the opponent’s. But watch the performance. See how these counsel handle the bench. Judge the proficiency and effect. Appeal advocacy at its best is a refined technique. You will spend more time watching appeals when you are called upon to argue one.16
 Be cautious about the advocacy you see in the lowest courts. There is a huge range in quality. Some of the old timers are magnificent. A few have been in practice for 30 years, but with the experience of one year repeated 30 times. Some of the younger ones show a good deal of style. There are newcomers still learning the skills. Check to make sure that what you see and hear in those courts are not the errors that seem to be passed on from one generation of lawyers to the next.
 Read the advocacy books. Keep your eye out for the reports of cases where the questions and answers are quoted with or without approval. Few of the biographies of prominent advocates quote the questioning of a witness except for some stunning remark or curt exchange.
 When I was a young advocate I was often told that it was necessary to develop my own style. I distinctly recall not being able to understand what the advice meant. Should I ask questions in a way nobody else did? Should I try to be different in court from anyone I had seen and admired? I started to put this advice to the test. In the lower courts where I first appeared I tried different styles at different times. Slowly I must have found a style that suited me. You will too. The reason for finding your own style is because the art of advocacy has few, if any, absolute rules. Advocacy is highly individual. What proves effective for one advocate will be ineffective for another.17 Find a style that works for you.
 Knowledge is never wasted in an advocate. It is no burden and can never be stolen. But some knowledge is of more immediate importance. It is worth developing a habit of acquiring particular forms of knowledge. Every good advocate will tell you that learning never stops.
 The following are some of the more important habits.
1. Law Keep up to date with decided cases, the authorities. Often enough a superior court will make a decision that will strike you as important. Make a note of it. Soon after I began as an advocate I started taking note of cases under their most obvious subjects and keeping the notes in a loose-leaf folder. It became an alphabetical index of topics. Others have different ways of noting, but all advocates do it. We have to. We would find it too hard to absorb a case and try to find the law on the subject from scratch, even with internet resources.
2. Evidence You must be thoroughly familiar with the rules of evidence. Evidence consists of the rules and principles that govern admissibility. The rules of evidence are often exclusionary by preventing the proof of some issues. Obvious examples are hearsay, improperly gained confessions, and all manner of documentary evidence.
3. Rules of procedure For the young advocate the rules and formalities can be quite intimidating. Has the case come to the right court in the right way? And in court, when do you stand and sit? How do you announce your appearance? What is the procedure for examining witnesses? In what situations can you lose the right of last address?
4. Court propriety Stand when spoken to by the judge, be respectful in word and demeanour, and be silent when a witness is taking an oath or affirmation. There is a list of do’s and don’ts in the last chapter.
5. Ethics These rules have been developed by the profession and occasionally by judges when an advocate makes a serious mistake. You will have to learn them. Nearly all of the ethical problems are likely to arise during the first five years of practice. Again, see the last chapter.
6. Logic Logic crops up in court more often than you would expect. One example is the so-called “bootstraps” argument, where the fact to be proved assumes the existence of that fact.18 Another good example is the wrong argument on DNA evidence. A profile might be shared by a party and only 10 other people in a population of 10 million. Is the probability that the DNA belongs to the party 1 in 10, or 1 in 10 million? Or is it 11 in 10 million? The solution is complex and can only be solved in a given case by reading what experts write about it19 and what judges say.20
7. Language Practise speaking simply and slowly. Give up the phrases that mean little: “in relation to”, “in terms of ”, “with regard to”, “in respect of ”. Practise the short question that contains only one issue. Try to do what the best advocates do by speaking concisely and accurately.
8. Politeness Good advocates are polite in court. They conduct themselves with dignity and courtesy. The primary reason is respect for the court,21 but the best advocates find that politeness gives their court work a very keen edge. Follow their example.
9. Watch the bench When you are in court watch the bench. You may have a plan about the order of your submissions. If the bench interrupts you to ask you a question about something you had planned to speak about later, change your plan. Answer the question.
Duties of the advocate
 These are the duties of an advocate:
1. If you are free you have a duty to accept every case within your area of practice where a reasonable fee is offered. That duty is sometimes referred to as the “cab rank” rule.22 The metaphor is that the advocate is like a taxi, which must accept anyone prepared to pay the fare.
2. You have no right to refuse to defend in a criminal case, for example, when you believe your client is guilty. There are good reasons for that. Counsel’s belief is not relevant.23 The judgment of guilt or non-guilt is the province of the fact-finder alone. An experienced advocate finds it quite easy not to form a decided opinion, except, of course, in calculating the reaction of the fact-finder to certain pieces of evidence. “How can you represent someone you know to be guilty?” is the question you often hear. The answer would be: “How would I know? I wasn’t there. Even if I were there I couldn’t have seen from all angles at once, or have seen inside people’s minds.”
3. You must do your best.
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case.24
4. The advocate is not a mouthpiece. You must exercise independent judgment. You cannot be an instrument of fraud, or be a party to misleading the court. No evidence can be led which you know or believe to be false. Nor can there be such a suggestion to a witness, for that amounts to the same thing. If the client charged with a crime tells you he was at the scene but only as an onlooker, you must not suggest to a witness that he was not there. If the instructions change and he tells you that he was not at the scene at all, you will not judge the truth of the instructions. But if he goes on to say that he was at the scene but that he will give sworn evidence that he was not at the scene, then you must withdraw from the case. That is not judging the instructions, but the two versions are contradictory and one of them must be false. If it is any comfort, the need to withdraw because of changed instructions happens so rarely that many advocates will pass a professional lifetime without ever seeing it happen.
5. You must keep up to date with the law in your area of practice.25
6. Be polite to all in court.26
7. You must never protract a case unduly.27
Perfection is not possible
 An advocate is a human being. So are fact-finders. In the nature of things perfection is not possible in either. “Counsel of perfection” has theological origins. It does not derive from any advocate. The highest level to which any advocate can aspire is excellence. Even that standard is elusive. The best cross-examinations and final addresses are in reflection after the case is over. Even the best counsel is never fully satisfied.
© Cambridge University Press