ADVOCACY – THE JUDGE’S VIEW IV: “AVOID BULLSHIT, SMOKE AND MIRRORS” (OH AND BEWARE OF “WELL PADDED VANITY”)

In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember the main aim of these posts is to whet your appetite so you read the original (in the Journal of the Bar Association of Queensland).

“What in other professions might be considered a blemish, even a disqualification, is in a barrister an essential attribute: lurking behind the diffident smile of the shyest junior is a conceit of Napoleonic proportions. Unless this was so, how could one survive in this most competitive, independent and gladiatorial of professions?”

“The willingness to spend unglamorous hours in preparation, organising the evidence and sifting out the irrelevant, minimising the time spent in court and focusing on the client’s case and not one’s self, are all really no more than an appropriate respect for one’s craft and for the doing of justice to which that craft is essential.”

 

ETHICS AND ADVOCACY

A key element of the judge’s presentation is the emphasis on ethics and civility.  The judge emphasises the need for the advocate to remember they are an officer of the court.

“I would commend to you the words of Sir Maurice Byers, who was one of the most successful advocates ever to appear in the High Court. He said of the role of the advocate:1
“When we appear before the courts, we are engaged in the administration of justice and thus owe to the courts in this ministerial undertaking a duty which prevails over our duty to our client. The practice of the law is thus radically and essentially different from the practice of other professions or callings. We participate and they do not in the administration of justice to the same extent as the judge, though our function differs.””

CIVILITY

The judge emphasises the need for civility both by, and to, the bench and

“We are now less likely to see the emergence of a hero judge, such as an Atkin or a Denning or a Dixon. Even the most forceful judicial personalities are less likely to feel the need to demonstrate that they are the smartest person in the Courtroom and destined for a place in the history books with the great lawyers of past centuries.”

MUTUAL CONFIDENCE BETWEEN BENCH AND BAR

“… I will mention a number of aspects of advocacy which bear upon the maintenance of the relationship of mutual confidence between Bench and Bar which is central to our mechanism for the doing of justice. To the extent that there is a unifying theme to what I hope are helpful hints, it is the idea that we are all, judges and advocates, engaged in a mutually respectful cooperative enterprise which is not all “bullshit and smoke and mirrors”.”

TRIAL PREPARATION

  • “The worst failure of which an advocate can be guilty is a lack of preparation”.
  • “the worst advocacy I have ever seen occurred in a long trial where the advocates opened the case by meandering through a bundle of documents – whether physically or electronically – with a view to seeing if there were any documents which the judge might think were interesting.”

MEDIATION

“The involvement of specialist advocates in mediation is a phenomenon of the last two and a half decades.
There are still advocates in practice who regard it as a badge of honour that they refuse to attend mediations. But the vast majority recognise that it is a great thing to help litigants resolve their disputes without the need for a trial. The clients get to keep their dignity and exercise their autonomy rather than have the solutions to life’s problems imposed on them by others. Just as importantly, they save time, money and distraction.”

WRITTEN ADVOCACY

“Many of us find it easier to follow and assess an argument on the written page than by listening to the spoken word. And, in any event, the process of question and answer which takes place at the oral hearing is much more focused by reason of the written outlines. Written outlines have seen an end to what I call the Jericho strategy of advocacy which was frequently used in the days of purely oral argument. This strategy involved counsel talking around and around the problem without committing to any particular proposition until a judge expressed enthusiasm for a particular sentence. Counsel would then exclaim how clever the judge was, that he had put the point much more clearly than he could ever do, and with that blast of the trumpet, the walls of judicial resistance tumbled and counsel triumphantly resumed his seat.”

The judge comments that, happily, this strategy is no longer viable.

The judge makes a number of central points in relation to written submissions:-

1    Written argument is not a mere formality or a chore.

“Written submissions afford you a great opportunity to shape the judges’ view of the case. It is an opportunity to persuade: such opportunities are not to be wasted.”

2. If there is a complex legislative scheme that has to be considered you may have to set out a precise elaboration of the scheme.

3. The best way of starting a written argument is to begin the written outline with a precise and clear statement of the issue or issues on which the case turns.

4. Clarity of statement requires clarity of structure.

5. Avoid the excessive citation of cases.

6. Be particularly wary when dealing with a litigant in person.

“And you should expect that the Court will require you to display courtesy and calm in dealing with even the most exasperating of unrepresented litigants. Everyone before the Court is entitled to be treated with dignity even if they seem to be busily engaged in giving it away.”

BE SELF-EFFACING

There is a particularly interesting passage on how the English Bar advertises itself (the talk relates to one single set in London, so my Welsh colleagues can be reassured that they have not necessarily been overlooked). The judge is sceptical, if not scathing, about the way barristers are described by a PR machine:

“the Bar’s most frightening barrister” – “revered as a formidable cross-examiner”, who “scares everyone rigid because he’s so aggressive and dominant”. He is, the PR machine guarantees, “a first rate gunslinger” who is “never afraid to take on the weakest cases” and “often turns the opposition’s spines to jelly”.
Imagine allowing people to publish this sort of rubbish about you to the world. Much worse, however, would be if you actually believed it to be true: because you might actually see your cases as being all about you, and your relationship to the headlines. That will become manifest in your dealings with your opponents and the Bench.”

YOU CANNOT BE A SHRINKING VIOLET BUT YOU MUST BE CIVIL

“Of course, advocates can’t be expected to be shrinking violets.
Of the need for barristers to have a “well-padded vanity”, Sir Maurice Byers said:6
“What in other professions might be considered a blemish, even a disqualification, is in a barrister an essential attribute: lurking behind the diffident smile of the shyest junior is a conceit of Napoleonic proportions. Unless this was so, how could one survive in this most competitive, independent and gladiatorial of professions?”
But civility between the Bench and the Bar is the formal expression of this ethos of a self conscious modesty and restraint, which is one of the hallmarks of true dedication to the administration of justice.
The willingness to spend unglamorous hours in preparation, organising the evidence and sifting out the irrelevant, minimising the time spent in court and focusing on the client’s case and not one’s self, are all really no more than an appropriate respect for one’s craft and for the doing of justice to which that craft is essential.”

RELATED POSTS

On judges and advocacy

On written submissions

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