About

short polemic on how to be seriously good in CourtThe book is called ‘‘The Devil’s Advocate’’ because it may make yousee advocacy from a new perspective.Your assumptions will be challengedCHAPTER IThis book will take you three hours to read.I hope you may never forget it.I hope you will come back to it time and again.Keep it for reference.It’s been published in a small size so you can carry it about.It is full of good ideas which in the early years of your practice, youcan dip into while thinking of what to do in a case.With reading it, your advocacy will probably improve immediately.It’s almost guaranteed.This is not a reasoned academic text. It is a polemic. It is aboutbeing good in Court—no messing, no guff, no clever arguments, notedious endless proofs and justifications. It tells it as it is.It’s about how to do the job really well.Chapter IAnd it applies to all advocates of up to five years experience.It is designed to be read easily by anyone interested in becoming aneffective advocate, whether presently at school, in university, at lawschool, or in the early stages of doing the job at the Bar or as asolicitor.It is written with crime in mind. But many of the rules apply to thecourtroom in civil practice too.The book will make sense wherever the justice system is adversarial.Much of what is in this book has been or is being taught in Scotland,Ireland, India, South Africa, Hong Kong, Australia, Kenya, NewZealand, Canada, and the USA. Many of the techniques are beingembraced by the formerly communist countries of Eastern Europe.The rules of advocacy are travelling widely.I’ve written it in pretty much my style of speech from when I teachadvocacy students. The book should read like I am talking to you,with colour and enthusiasm. It shouldn’t feel like you are reading. Iam hoping the style will be effective in communicating what mayotherwise be a series of rather dull rules. My apologies if I appear toover-egg it in places, and drive you a bit nuts! But at least, you’llprobably remember what’s been said.Where I refer to an advocate or judge, I will use the expression ‘‘he’’as being I hope gender neutral.You won’t agree with everything you read.Good.At least you’re thinking.Thinking about advocacyEach page will contain one or two thoughts, no more. Some pageswill therefore be short.Some of them very short.Like this one.Try not to fly through the book.Instead, think about each page as you read it. Lodge each thought inyour mind.Don’t skim. Think.As for myself, I don’t pretend I can do advocacy right every time incourt, but I think I’ve come across what works. And I know I willalways be learning.CHAPTER IILEARNING ADVOCACYAdvocacy is a skill.The skill of persuasion.Like any skill, ADVOCACY CAN BE LEARNT.Up to a point.No one can be taught to be a brilliant advocate, just as no one canbe taught to be a brilliant pianist. Brilliance requires talent. Whetherany of us have talent is in the gift of the Gods.However, we can be TAUGHT COMPETENCE in advocacy.Competence is not making errors.We can be taught how not to make errors.Simply that. No more complicated than that. No errors.Just as most people can be taught to play the piano, so too can theybe taught advocacy. An error-free performance on the piano, likeperhaps a youngster playing Beethoven’s fairly simple ‘‘Fur Elise’’, iscreditable, will raise murmurs of approval, and generally cannot behugely criticised. The youngster may not be destined to be a brilliantpianist, but an error-free Fur Elise is something most youngsters canbe taught to play, even if a little woodenly.In the same way, we can learn an error-free performance in CourtBut unlike the pianist, an error-free performance in court issomething more It is highly unusual.Advocacy without errors is no small achievement.As with any skill, PRACTICE is what is necessary. Reading books like this will be perfectly useless in the absence ofpractice.We learn advocacy by doing.So practice. To practice.Practice. Practice. Practice.The ideas in this book are for trying out. If something does not workfor you, form that opinion after you have tried it and not before.There will be suggestions you disagree with, but what we must avoidis an armchair debate. TRY THINGS OUT, then debate them, notbeforehand.Advocacy should involve experimenting.Regularly.Trying to IMPROVE existing skills.Trying to create NEW skills.Don’t sit around. Get up and do.Practice in front of the mirror. Practice in front of friends. Practiceto and from work in the quiet of your mind on the train. Always belooking for ways of phrasing questions, turning phrases, encapsulating arguments, controlling witnesses, and more, and so on. Thinknew ideas and in time have the courage to try themIt is astonishing how few students and advocates have ever read anADVOCACY BOOK.There are large academic texts available from the USA, which aresometimes avoided, because they can appear intimidating. However,they can be very good.Try ‘‘Fundamental Trial Techniques’’ by Thomas Mauet. It’s a bitheavy, but very thorough, and has loads of ideas.And of course, there are many thinner contributions which offeradvice, and particularly which quote from brilliant past cases. Thecross-examination of Wilde by Carson is a powerful read. Snippetsof other less famous cases are instructive and often amazing.Surely every advocate should have read:Richard Du Canns’ ‘‘The Art of the Advocate’’Francis Wellman’s ‘‘The Art of Cross-examination’’Just for starters.Have a look for them nowThe modest aim of this book is to teach you competence.I am hoping after you have absorbed the ideas here, and then putthem into practice, you will play advocacy’s Fur Elise withoutmistakes, even if a little woodenly at first.It will then be up to you how good you get after you’ve learned FurElise, and in time, as you become more sophisticated and fluent onthe advocacy keyboard, you will learn for yourself whether you havethe talent of an Edward Carson, or Marshall Hall or ClarenceDarrow.But before we can run, we must walk.TRUTHThis is a tricky area.Rightly or wrongly, adversarial advocacy is not really an enquiry intothe truth.Perhaps the adversarial system should be about finding out whatreally happened. But it isn’t. Instead it creates a polite contest.The contest is this: while a judge or a jury will seek out the truth asbest they can, the advocates use their skill to test the evidence, andto control the way the evidence emerges, and then comment inclosing on whether a case has been proved to the necessary standardof proof.Perhaps it should not be like this, but in reality this is what happens.What is the truth of an incident? Truth of course is a large concept.Philosophers have written about it for thousands of years. Manywould say there is no objective truth, that there are really onlydifferent perspectives. However, if there is an objective truth,unfortunately courts do not always find it. I’m only saying what the reality is. I’m not trying to be controversial.I’m saying it as it is, as I promised. No guff. No philosophising.And the truth is that adversarial advocacy is not really an enquiryinto the truth. It is a well-mannered contest, in which there are rules,and it is possible to win, even in the face of seemingly overwhelmingevidence if you play the rules better than your opponent, and learnto be a more persuasive advocate than your opponent.The system is supposed to work on the assumption the advocates areevenly balanced, and so they cancel each other out, leaving thetribunal to consider the evidence after it has been examined. But theflaw in the theory is that advocates can have uneven skills, andusually do.Your job is always to try to be more skilful in the art of advocacythan your opponent.A good advocate can win a weak case, particularly if against a lessable advocate.In court, there is acting, and there are games of strategy. Maybethere should not be, but there are, every day, up and down thecountry.Witnesses often exaggerate in order to win, admitting no failings forfear they will damage their case.And encouraging the witnesses, or against the witnesses, are theadvocates, whose job is not to give up, even when it seems hopeless.ADVOCATES TRY TO WIN THEIR CASES WITHIN THE RULES,IRRESPECTIVE OF THE TRUTH, irrespective of that hopelessness. And often it is never entirely hopeless for the skilful advocate.Lawyers praise advocates who have succeeded with weak cases, notas a mark of the truth having triumphed, but as a celebration of theadvocate’s skill.And remember, cases will often turn on what evidence within therules an advocate has skilfully managed to keep suppressed.Often, it can be more important when questioning witnesses toKNOW WHAT NOT TO ASK, to know what areas will get you intotrouble with the witness, and so avoid them.So there it is—rightly or wrongly, an advocate’s job is not actuallyabout truth. It is important to understand this, sad or illogical as itmay seem, right from the outset of the advocate’s career.If not about truth, what then?CHAPTER IVWINNINGBeing an advocate is about WINNING WITHIN THE RULES.Perhaps it shouldn’t be.But it is.The goal is to win;the means of winning is by being persuasive.We each strive, and should strive, to win, but always, always, alwayswithin the rules.There are the rules of evidence and the rules of law. You areassumed to know these. Nothing more will be said about them here.It appears to me there are also three primary professional rules.These are really about attitudes of mind. I am not trying here torewrite the Codes of Conduct for solicitors or for the Bar. TheCodes need careful reading and you are assumed to know them. Iam simply emphasising the seemingly most important beacons ofintegrity which ought to burn bright in every lawyer, and shouldguide the way we think.And I think there are three beacons.They are commandments of behaviour.The first is THOU SHALT NOT MISLEAD THE COURT.You are assumed to know this.It is a long subject and will have been studied at law school.Always remember to consult colleagues and if necessary yourprofessional body telephone help-line, which you ought to know offby heart, if in any doubt.Always consult.Misleading the court is serious misconduct and will, and rightlyshould, lead to formal proceedings of censure.For God’s sake, don’t lie. Even if it means you will win the case andyou think no one will find out. Don’t ever say something you KNOWIS NOT TRUE. Ever. And I mean EVER. If you tell one lie, and bythis I don’t mean mentioning something which may not be true,which is unclear, but instead you KNOW it, KNOW KNOW KNOWIT, no matter how small a teeny weeny lie, you should never stepinto court again. NEVER EVER AGAIN.Witnesses might lie. Criminal defendants often lie. But an officer ofthe court—and that’s what you are—is upon his honour, and neverever ever ever lies. You must be trustworthy to the Judge, to thejury, to your colleagues, as without this you cannot be persuasive,and if you are caught out on just one occasion, no one will everbelieve you again. May the ground open and swallow you, maylightening bolts cascade from the Heavens, may the monsters ofHades surface and drag you down to Hell’s darkest dungeon, if youdo it even once.Just don’t do it.I won’t say anymore about it as it is so huge an issue, it need onlysimply be mentioned to make the point of how important it is.The second rule however is not such a formal one. But is it prettymuch just as important. THOU SHALT NOT USE SHARP PRACTICE WITH YOUR COLLEAGUES.This is a difficult area. You have a duty to the client. But equally,that duty cannot be fulfilled if you are sharp with your colleagues asthey won’t trust you, and this will make running your case to theadvantage of the client very difficult.We are not talking about lying here. We are talking about beingnasty, evasive, weasily, too clever by half, mealy-mouthed, disingenuous, and manipulative.ACT WITH HONOUR.Generally, the trick is it is better to refuse to be drawn on what youwill do, it is better to say nothing and make it clear you are sayingnothing, than to say you will do one thing and then do another. Ifyou say you will do something, then do it; if you say you will not dosomething, then don’t do it.If you wish to raise a matter of law, give your opposition at leastsome notice. If you have legal authorities on which you will rely,alert the opposition early, not at the moment of submission.It is often a question of how it’s done, not what is done.Be Henry V not Richard III. Maintain POLITENESS AND CLARITY.A rule of thumb is it is best to deal with your opposition, as youwould want them to deal with you.Why not confound them?The answer is clear. As advocates, we spend our working livestogether. Clients usually come but once or twice. However, weencounter each other all the time. It is professional suicide to have areputation for being sharp. Reputation travels quickly. Lawyers loveto gossip. There will come a time when meeting a new advocate, wesee eyes narrow, and inexplicably co-operation is withdrawn. Sadlythey have heard about us.In Britain and Ireland, and most of the Commonwealth andCommon Law world, we rightly pride ourselves on the level of cooperation between advocates against each other. Outside court,decisions are taken which speed up the smooth running of trials andallow the parties and the court to focus quickly on the real issues.Long may this continue. Don’t blow it by being sharp.Please don’t confuse this with selling your client out to keep in withyour lawyer friends. This is not what is being suggested. Your dutyto your client is paramount, but remember, it must be within therules. The rules require you do not mislead the court. In the sameway, there is an unspoken rule you do not deliberately mislead yourcolleagues.Don’t lie. Don’t u-turn on what you have promised, without very,very good reason which you must then explain fully. Don’t say thingsintending to renege on them later. As I say, it is better to saynothing, and point out you are saying nothing, than to say somethingyou later change.The third rule is THOU SHALT ALWAYS TRY TO THINK LIKETHE TRIBUNAL.Why? Because if you do this, you will automatically become lesspartisan.Being perceived to be less partisan is really very important. You willbecome more reliable in the eyes of the judge or jury and your laterarguments are more likely to succeed.There is all the difference in the world between representingsomeone and taking sides. Your job is the former, not in the style ofB-movies being a hired gun.You should try to take decisions with this thought in mind: ‘‘Whatshould the judge do about this problem?’’, or ‘‘what is the jury likely tomake of the general circumstances of this case, or appearance of thedefendant, or the presentation of his mother as a character witness?’’The thought should not be:‘‘What would I like the judge to do?’’nor is it‘‘I wonder if I can get this past the jury?’’nor is it‘‘I’ll have a go’’.Or another way of looking at it is ask yourself:‘‘If I were the tribunal, what would I think?’’The thing to avoid here is trying to think like the client. You arepaid to predict and influence what will happen in court. Whoever itis, be it a burglar, the local constabulary, a multi-million poundbusiness, the client wants you to think for him. And he wants you towork out what will best serve his interests while he lies in the powerof the court.However, there is sometimes a tension created by the client appearing to tell the advocate what he wants done in court. Remember,without becoming arrogant, you will usually know what is best forthe client if you can develop an understanding of how the tribunalthinks. If we all did everything clients insisted upon, court coulddescend into a circus.Your job is to straddle the fine line between pleasing the client andpleasing the court. Pleasing the court will usually benefit the client.Don’t roll over, but at the same time don’t undermine the entirecourtroom process by becoming the unthinking mouthpiece of adifficult or inexperienced client. If you can anticipate the way thetribunal is thinking, you can craft so much of your presentation tomeet its expectation, and soothIf we follow the rules, then within their constraint, it is your job towin.The constraining rules are the rules of law and evidence, the codesof conduct, and the rules of advocacy. You’re assumed to know therules of law and evidence. You’re assumed to know the codes ofconduct. But you’ll be learning the rules of advocacy throughoutyour whole career.So, within those rules, it is your job to win.But not at any cost. Keep the three beacons burning.And with them burning, now you must fight your case. And reallyfight it. Simply detachedly presenting the case is insufficient. Anadvocate must try to be totally committed. Of course, we may lose inthe end, but it will be fearlessly, bright eyed, and not for want oftrying.And remember. There are some who will say expansively with aneasy smile they are not interested in winning, but just in presentingthe evidence. It is a fashionable thing to say. It makes them seemharmless.Don’t believe a word of it.