 | 27
Staying afloat and navigating homeward:
Practical tips from the Bench on Advocacy in the Local Court
By Magistrate Hugh Dillon, NSW Local Court
A paper for the LexisNexis Conference on
Criminal Law and Advocacy
Sydney, 12 August 2005 (revised)
1. In the beginning
The office of an advocate is a high one.
Sir Owen Dixon thought that there was no higher legal vocation. In his
address of 7 May 1952, when first sitting as Chief Justice of the High
Court in Melbourne, he said, “For my part, I have never wavered in the
view that the honourable practice of the profession of advocacy affords
the greatest opportunity of contributing to the administering of justice
according to law. There is no work in the law that admits of a greater
contribution.” Sir Owen Dixon Jesting Pilate, Law Book Co, Sydney 1965 p250.
What Dixon meant by this, I think, is that
the quality of the decisions made by courts is directly related to the
standard of advocacy in them. It is clear that the better the lawyers
perform, the better the judges perform. Conversely, “rubbish in,
rubbish out”.
Dixon and the judges of the superior courts
are in the privileged position of having the finest advocates in the
country appearing for them on a regular basis. The experience of the
magistracy is the reverse. While many fine barristers and
solicitor-advocates appear in magistrates’ courts, they are,
nevertheless, the forum in which young lawyers begin to learn their
trades and the level beyond which the mediocre rarely progress. In my
experience, despite many honourable exceptions to the rule, the general
standard of advocacy in magistrates’ courts is not high.
Without for a moment excusing poor
decision-making by magistrates (and judges of the lower courts), the
concessions made by superior court judges in their appeal decisions that
“learned magistrates” contend “heavy loads” and “long lists” tend to
obscure the fact that one of the principal causes of bad decisions by
magistrates is the inadequacy of the advocacy of the lawyers who
presented the cases which later went on appeal. By the time a matter is
presented on appeal, authorities have been checked, rough edges have
been smoothed off and the case is properly prepared. In many cases, if
the preparation had been done in the first place the need for an appeal
to correct the error would have been obviated.
This journal quite regularly offers learned
articles on appellate advocacy by High Court and Supreme Court judges.
I am prepared to accept that there is a variation in standard of
advocates in the superior courts but, generally, advocates appearing in
those courts are very able. The vast majority of court cases conducted
in this country, however, proceed before magistrates. Dixon was right
about advocacy and its effect on the administration of justice. It is,
therefore, of considerable importance that the standard of advocacy in
the magistrates’ courts be improved. It is with the hope that they may
help some thoughtful lawyers to improve their advocacy (and therefore
both their clients’ prospects and the administration of justice
generally) that I offer the following observations.
If all advocacy is an exercise in
persuasion, that exercise begins well before a court case starts. Do
the things that can be done in a case as soon as is reasonably possible –
there will be more than enough things that come up in a case in court
to keep you busy without adding to the pressure by trying to fix
problems that should have been addressed days, weeks or even months
earlier.
Court cases, large or small, criminal or
civil, are project management exercises. Judges and magistrates expect
the parties to control their own projects and are gladdened by the
well-prepared but are distinctly unimpressed by those who do not appear
to have more than a weak grasp on the essentials of their case, the
evidence, law and so on. They find it easier to listen to and respect
the arguments of an advocate who appears to have his or her case under
control than those of somebody who is thrashing around in panicky
disorganisation.
2. What does preparation involve?
One of the principal deficiencies in poor
advocacy is lack of preparation. Some lawyers appear to think that
preparation consists in reading the police brief or the pleadings and
affidavits and taking a proof of evidence from their client.
Preparation is a much more profound process. It may involve many things
but virtually all cases demand attention to the following:
(i) The elements of the offence or cause of action – what does the prosecution or plaintiff have to prove to succeed?
The various elements have to analysed
separately and evidence capable of proving each element to the requisite
standard has to be marshalled. Advocates from time to time make
assumptions that are not backed up by evidence. Preparation has to
cover all the relevant issues or face potential disaster.
(ii) Gathering and analysing the evidence
The advocate must carefully scrutinise his
or her own evidence and that served by the other side and analyse it in
accordance with the elements of the offence or cause of action and the
rules of evidence.
That analysis will show whether further
evidence is needed for your own case or to test your opponent’s.
Further witnesses may be available and should, if at all possible, be
sought out well before a hearing commences. Witnesses may have to be
subpoenaed. Documents may have to be subpoenaed. Conferences should be
held with witnesses and statements taken from them in proper form. If
it is envisaged that those statements may be tendered, the evidence
contained has to be in admissible form.
(iii) What is your case anyway?
American writers on advocacy emphasise “the
theory of the case” – the hypothesis that seamlessly explains all the
evidence for both parties. The multi-faceted theory of the case (“It
wasn’t me – I wasn’t there; if I was there it was the other fella; if
it was me, I didn’t mean to do it; if I meant to do it, I must have
been off my mind”) does not inspire confidence from the Bench. The
scatter-gun approach to a case is to be abhorred. It may confuse juries
but magistrates, sitting listening to a melange of undeveloped or badly
developed ideas, and knowing that they will ultimately have to sort the
mess out, tend to find that sort of presentation unpersuasive.
It is, whether we like it or not, much
easier to persuade a judge or magistrate with simple, well-organised,
compactly presented ideas than with a case that resembles a bowl of
spaghetti. Ockham’s Razor is the principle proposed by William of
Ockham in the fourteenth century: “Pluralitas non est ponenda sine
necessitate”, which translates as “entities should not be multiplied
unnecessarily”. In short, keep things as simple as possible given all
the data that you have to deal with.
While on this point, it is worth
emphasising that when a case begins the judge or magistrate is the only
person in the courtroom who comes to the case cold. A well-structured,
simple outline or opening of a case is often a very useful tool,
especially in criminal matters where the pleadings are very rudimentary
compared with those in civil actions.
(iv) Anticipate the issues
When analysing the evidence it is
important, as far as possible, not only to consider how you propose to
prove your case (if a burden of proof lies on you) but how your opponent
is going to. Try not only to go through the legal issues but the
tactical ones – where will your opponent attack you? Try to look at
your own case as dispassionately and objectively as possible for its
weaknesses. If possible, find answers to those problems. Anticipate
the objections likely to be taken to your evidence or your
cross-examination and prepare responses.
Analysing one’s own case for weaknesses is
often the most difficult task an inexperienced advocate will face. It
is human nature to underestimate our weaknesses and to concentrate on
our strengths or the result we hope for. When starting out, it is a
useful practice to consult an old hand whose judgment is trustworthy and
likely to fair and objective to warn you of any traps you may not have
detected and to provide tactical advice on how to eliminate or minimise
those problems.
(v) Learn the Evidence Act, the procedural rules and the professional rules
No one expects a young lawyer to have a
QC’s knowledge of the rules of evidence but the basics are expected.
The Evidence Act, the relevant procedural rules and the ethical rules
are the courtroom lawyer’s toolkit. Magistrates and judges expect
advocates to have a working knowledge of these matters. Anyone who has
not should not be in a courtroom. It is bad for the client, bad for the
profession, bad for the justice system, and therefore for the community
as a whole, if a courtroom lawyer tries to conduct a case without that
grounding. Under pressure in the middle of a hearing is no time to be
learning the basics. Anyone appearing in the Local Court should have a
good working knowledge of the Chief Magistrate’s Practice Notes.
(vi) Views
It is not an extravagance to take a view.
You will understand the evidence much better if you do. You will ask
better, more informed questions and you won’t waste time (as far too
many poor advocates do) trying to build up a picture in their minds of
the scene by asking questions of witnesses who often are unable to
articulate the sort of word pictures beings sought. You will also
subliminally convey to the Bench, by questions which are based on an
intimate knowledge of the scene, that you know your stuff. A view can
take a few minutes but it is always time well-spent.
(vii) Conference the witnesses
It is amazing to me how often witnesses
reveal in court that they have not read their statements since giving
them months before, or have only done so for the first time while
waiting at court to give evidence. In my view, unless there is some
very good reason, an advocate should rarely start a case without having
had a conference with his or her principal witnesses. (I am not talking
about witnesses who merely giving formal evidence of some sort but of
witnesses whose evidence is likely to be challenged.) Not to do so may
lead to some deeply uncomfortable moments in court.
One key question that should always be
asked of a witness is whether he or she has given a statement or version
of the events in question to anyone prior to the case commencing. I
once had an unnerving experience when, as an inexperienced Commonwealth
prosecutor, I ran a corruption case in the St James Local Court. The
key witness was a man who alleged that he had offered a bribe to a
public servant at Sydney Airport. As the witness had come forward
voluntarily, exposed the corruption and been punished for his part in
it, I was somewhat complacent. My opponent, (Virginia Bell SC) as she
then, however, was not only a better and more experienced lawyer than I,
but, more importantly, she was better prepared – she was armed with a
couple of prior inconsistent statements made by the witness of which I
was not aware. The result was a foregone conclusion once the
cross-examination began. Whether I could have salvaged the case, I
rather doubt but to have been taken by surprise in this way was a very
valuable lesson to me.
It is, of course, imperative that witnesses not be coached or prompted or told what other witnesses will say
but they can be taken through their statements and any issues clarified
with them. They should be asked to read their statements over
carefully and asked if there is any other relevant material they can
remember. If necessary, supplementary statements of evidence should be
prepared. It is best, if possible, however, to avoid the production of
supplementary statements because the suggestion may be made that the
witnesses have reconstructed the fresh evidence or even fabricated
further evidence to suit the case of the party calling them. This
emphasises the need for the careful and thorough preparation of the
initial statements.
Parties have no property in witnesses. It
is open for a defence lawyer, for example, to seek to interview a
prosecution witness. If necessary, a lawyer can ask the court for a
short adjournment to speak to the witness before that witness gives
evidence. In this way, the lawyer finds out the answer to his or her
questions without asking them blind in cross-examination. (On the other
hand, the lawyer may not want to give away the question prior to
cross-examination -- it all depends on circumstances.)
Witnesses can also be given instructions about where to go to court, how to dress appropriately and so on.
(viii) If necessary, brief counsel
In some instances, a case may demand that
counsel be briefed. If so, this is a matter that should be dealt with
earlier rather than later. Once matters are set down for hearing, the
Local Court will rarely adjourn hearings because of the unavailability
of a barrister. Courts take the view that there are nearly 2000 counsel
in Sydney and if one is unavailable another will be able to step into
the breach.
To summarise: analyse the issues and
evidence; anticipate the problems by looking at the case from the other
side; find solutions to each of the problems presented; structure the
case to deal with the issues.
3. Into court: the preliminaries
(i) Smoothing the way – manners and etiquette
Good manners do not distinguish good
lawyers from the mediocre but most good lawyers, in my experience, are
also well-mannered in court. Courts will tolerate skilful but liverish
lawyers because they don’t have much choice. On the other hand, a
combination of lack of skill and insolence will have many magistrates
and judges looking for a fast way to terminate the case, usually to the
disadvantage of the uncouth one’s client.
Lack of courtesy is, of course, not a
one-way street. One of the most difficult situations a young advocate
may have to face is that of the cranky judge or magistrate. This is a
bit like talk-back radio: most of the power in the conversation is at
other end. If a judge or magistrate is being unfair or a bully, the sad
fact of the matter is that, in such circumstances, the advocate is
required to behave better than his or her venerable elder. A complaint
to the Judicial Commission may be an option after the event but, in the
courtroom, that is no remedy or consolation.
The best way of dealing with petty tyrants
is to remain calm, absorb the attack with dignity and not to engage in a
squabble with the Bench. Self-deprecating humour can be a saving grace
on such occasions.
Lord Birkenhead (F.E. Smith QC), when he
was a young barrister early in the 20th century was famous for taking on
judges. It is recorded that on one occasion he had the follow close
encounter:
Judge: Have you ever heard of a saying by Bacon--the great Bacon--that youth and discretion are ill-wedded companions?" F.E. Smith:
"Yes, I have. And have you ever heard of a saying of Bacon--the great
Bacon--that a much-talking judge is like an ill-tuned cymbal?"
Judge: "You are extremely offensive, young man!"
F.E. Smith: "As a matter of fact we both are; but I am trying to be, and you can't help it." See Gilbert, M The Oxford Book of Legal Anecdotes Oxford, 1989 p.279.
It is also a matter of record, apparently,
that while Birkenhead soared to lofty heights in the law and politics,
the English Bar was littered with the wrecks of the careers of men who
were as cheeky and discourteous as he was but lacked his ability. See Lord Alexander of Weedon QC “The Art of Advocacy”, Bar News Summer 1991 p9.
(ii) Basic rules of court etiquette
Stand when speaking to the Bench.
I once saw a QC receive a humiliating ticking off from Chief Justice
Gleeson in the Court of Criminal Appeal for failing to stand when making
an objection.
Bow
when entering or leaving the courtroom if the court is sitting. Bow
when the judge or magistrate enters or leaves. Stop talking at the Bar
table when the judge or magistrate enters the court and stay silent
until the court is called into session.
Don’t leave the Bar table unattended.
It is old-fashioned courtesy to wait until excused or another
practitioner joins you at the Bar table once your matter has concluded.
Announce your appearance. Don’t
rely on the Bench to remember your name. Some of us see hundreds of
people in a week and have senior moments from time to time. It is also
helpful for the monitor who has to record a name on the court transcript
log if the name is announced. However, while it shows a practitioner
is well-mannered, it is unnecessary and a waste of time for a lawyer to
announce an appearance before a matter is mentioned by the Bench or
before the case is ready for mention by the parties.
Honorifics.
Call your lawyer opponents “my friend” or “my learned friend” but
don’t call an unrepresented party “my friend”. The Bench is addressed
as “Your Honour” in court. Judges are called “Judge” outside court.
Magistrates are generally addressed as “Mr X” or “Ms Y” or “Mrs Z” out
of court. Address witnesses by their names or as “Sir” or “Madam”, not
as “Witness!”
Don’t approach witnesses in the box without leave from the court. Leave that to the Americans.
Don’t chat with the Bench.
If for some reason there is a lull in proceedings, and the magistrate
stays on the Bench, don’t embarrass him or her by starting a
conversation. If you wouldn’t do it in the Supreme Court, don’t do it
in the Local Court either. Both are representative of the rule of law
and are therefore formal places.
Do not speak to the judge or magistrate about cases except in court. If
you practise in a country court where the pleasant old-fashioned custom
of the practitioners having morning tea with the magistrate still
prevails, NEVER discuss your case with the magistrate. In rare instances
it may be necessary to raise something with the judge or magistrate in
chambers. If so, you must first speak to your opponent and explain what
you want to do and why. You must never approach a judicial officer
privately in the absence of your opponent.
Be on time for court. If
there is a call-over list, be there when the call-over starts. If you
are in court for a hearing, be there on time. Return from morning tea
at the time appointed. If you need to have discussions, come into court
at the start time for the case and seek to have the matter stand in the
list. Better still, have them before
court starts. Call your opponent the night before the trial (or the
week before). If you have to be late for some reason, call the
courthouse and leave a message for the magistrate or judge with an
estimated time of arrival. Don’t expect the court to wait until 3pm for
you to arrive.
(iii) Annoyances
Although minor infractions of the ordinary
courtesies are simply that – minor – they are irritating and sometimes
distracting to the Bench and other practitioners:
Talk outside.
It might be a statement of the bleeding obvious but the courtroom,
when a case or a list is being conducted, is not the venue for prolonged
discussions that don’t involve the Bench. If you have things to talk
about with your opponent, talk outside.
Keep the noise down. Don’t bang the doors coming in or going out.
Turn off your mobile phone.
Look the part.
It is a small thing but I suggest that advocates should try to look as
if they belong at the Bar table. Courts are formal places because they
express a cultural preference for significant types of decisions to be
decided according to laws rather than by the use of weaponry. By
dressing formally lawyers express their respect for this high form of
constitution. Like it or not, if you want to be taken seriously, you
must look as though you are worth taking seriously. It is thoughtless
or vain (and may be counter to the client’s interests) for an officer of
the court to lower the court’s prestige by dressing as if going to the
pub or a footy match.
(iv) Disagreeing with the Bench
One of the more awkward situations an
advocate may find him- or herself in is to have to disagree with the
Bench or to correct an error the judge or magistrate has made. It is
important that advocates assist the Bench not to make appealable errors.
That means that the advocates ought be prepared relevant authorities
and legislation to assist the Bench to apply the law correctly. If it
is evident to an advocate that the law is being applied incorrectly by,
for example, the magistrate or judge referring to the wrong section of a
piece of legislation, the lawyer is duty bound to assist the court by
pointing out the error respectfully but firmly.
That kind of situation generally causes no
problems. Most judicial officers are humble enough to realise that they
sometimes need help, especially in a field that is unfamiliar to them.
If, however, a judge or magistrate is foolish enough to refuse such
assistance and gets it wrong, there is little the advocates can do about
that except appeal (if it is an important point).
Where, however, an advocate has been given a
full opportunity to put an argument relating to a point and the Bench
has ruled, it is very poor advocacy to seek to continue the debate.
There is simply no point in beating your head against a brick wall.
Furthermore, it is unwise to antagonise the
Bench with a display of pique if the ruling is unfavourable. Lawyers
who throw books on the Bar table, or roll their eyes or stamp around the
courtroom when a ruling goes against them do themselves and their
clients no favours. The judge or magistrate will not change his or her
mind in that case but will certainly remember the advocate in future
with distaste. Furthermore, they will talk to their judicial fellows
about the lawyer and thus the lawyer may develop a regrettable
reputation of which he or she may not be aware.
On the other hand, a polite disagreement is
a form of discourse well understood and even enjoyed by people who
respect one another. A judge or magistrate is much more likely to
respect an advocate if treated with respect than otherwise. Respect
cannot be measured but it is a powerful, subliminal weapon when deployed
in a courtroom. An advocate who has won the respect of his or her
fellow lawyers (including the judiciary) is, because of that fact
alone, likely to be more persuasive in relation to close decisions than
someone who has not. All other things being equal, the arguments of the
respected person will carry greater weight psychologically than those
of the person who has not won respect.
If the Bench is against you, accept the
ruling and move on. You may be wrong, in which case you will only make
things worse by arguing. If you are right, you have an appeal point but
the judge or magistrate has made up his or her mind. It is
discourteous, futile and, indeed, puerile for an advocate against whom a
ruling has been made to threaten to appeal. I would strongly advise
against such histrionics.
(v) Winning and losing the court’s respect
The Bar Rules on advocacy ought be learned
by heart by all advocates before they enter a courtroom. Frankness with
the court is mandatory and is one of the marks of a professional
lawyer.
In summary, the Bar Rules See NSW Bar Rules 21-31. in relation to frankness to the court are these:
· An
advocate must not lie to the court and must take all necessary steps to
correct any misleading statement made by the advocate to the court as
soon as possible after the advocate becomes aware that the statement was
misleading.
· In a
civil matter, however, an advocate must take all necessary steps to
correct any express concession made to the court by the opponent in
relation to any material fact, case-law or legislation only if the
lawyer knows or believes on reasonable grounds that it was contrary to
what should be regarded as the true facts or the correct state of the
law and he or she believes the concession was an error.
· An
advocate seeking any interlocutory relief in an ex parte application
must disclose to the court all matters which are within the advocate’s
knowledge; which are not protected by legal professional privilege; and
which the advocate has reasonable grounds to believe would support an
argument against granting the relief or limiting its terms adversely to
the client. Where certain information that would be relevant is
protected by privilege the advocate must seek to have the client waive
privilege and, if the client will not, the advocate must inform the
court that he or she cannot assure the court that all matters which
should be disclosed have been disclosed to the court.
· An
advocate must inform the court of all relevant authorities and
legislation whether or not they favour his or her party’s case. If
judgment or a decision is reserved and the advocate becomes aware of a
relevant authority or legislation, he or she must inform the court and
the opponent of the reference to the case or legislation or by
requesting the matter be relisted at a convenient time for both parties
to make further submissions.
· In a
criminal case, an advocate who knows or suspects that the prosecution is
unaware of the client's previous conviction must not ask a prosecution
witness whether there are previous convictions in the hope of a negative
answer, but the advocate is not obliged to reveal the client’s previous
record.
· In a
civil matter, an advocate must inform the court of any misapprehension
by the court as to the effect of an order which the court is making, as
soon as the barrister becomes aware of the misapprehension.
As far as judges and magistrates are
concerned, a lawyer’s reputation is generally formed by his or her
performance in court. A reputation for frankness and honesty with the
court is treasure for an advocate. Sir Owen Dixon made the trenchant
point that “Candour is not merely an obligation but …in advocacy it is a
weapon.” Sir Owen Dixon Jesting Pilate, Law Book Co, Sydney 1965 p250.
A reputation for dishonesty, on the other
hand, is virtually indelible. It is most unfortunate but true that a
small minority of practitioners appearing in NSW Local Courts are
regarded by the magistrates as untrustworthy. When a magistrate sees a
lawyer for the first time, the magistrate will assume that the lawyer
will be true to his or her oath and the rules of advocacy. If, however,
a lawyer does something slippery or mendacious for a short-term
advantage in a case and the judicial officer finds out or comes to
suspect dishonourable conduct on the part of the lawyer, that person
will not be trusted again and will always be regarded as “tricky” – not a
reputation to cultivate.
Outright dishonesty is one thing but more
commonly seen is a style of advocacy which is merely crafty or sneaky.
The crafty ones are the lawyers who misrepresent the evidence or the
case law or who “forget” to tell the Bench about the authorities which
are against them in the hope that their opponents will not bring the
case to the attention of the bench or that the judge or magistrate will
be unaware of all the relevant cases. Lawyers who practise in this vein
also soon gain unsavoury reputations both with the Bench and their
fellow lawyers. It is a low form of cheating.
On the other hand, the lawyer who
acknowledges the difficulties that the evidence or the law causes his or
her client and attempts to provide a reasonable solution favourable to
his or her party will earn the respect of the Bench and the other side.
In the same vein, a lawyer who capably
analyses both sides of the case, works out what is and is not in
dispute, makes reasonable concessions and admissions, honing the case
down to the contentious issues, is regarded in all courts and by most
other lawyers as a valuable asset and as a worthy and fair opponent.
Fairness as an advocate is not only a
question of honour, it has a powerful effect on tribunals of fact. We
have a cultural predilection for fairness. We want fair trials run by
fair judges, fair prosecutors and fair defence teams. The late Judge
Joe Ford QC was regarded as a brilliant and devastating Crown
Prosecutor. Justice Peter Hidden of the Supreme Court regards him as
one of the best Crown Prosecutors he saw during his career at the Bar.
It was said by some that he could make juries eat of his hand. He
prepared his cases meticulously but one of the reasons juries found him
so persuasive was that he was always impeccably fair to the accused and
to his opponent in court. The combination of high intelligence,
excellent preparation and fairness rarely left juries with a doubt about
the guilt of the accused. (On the other hand, many an apparently strong
Crown case has resulted in an acquittal when a jury has formed an
impression of unfairness on the part of the prosecutor or the police.)
The converse is the person who seeks to score insubstantial points or to be obstructive. In Jonathan Harr’s A Civil Action, his
brilliant true story of the massive class action brought by Boston
cancer victims in the 1980s, he has the senior litigation partner for
the defendant’s lawyers advising young lawyers, “Keep evidence out if
you can. If you fall asleep at the Bar table, the first thing you say
when you wake up is, ‘I object’”. Jonathan Harr A Civil Action Random House, New York, 1995 p.88.
I can think of no judge or magistrate who would encourage such an
approach and I doubt that many American judges would either. With all
their diversity one thing unifying all judges and magistrates is their
desire to get to the real issues.
(vi) Dealing with opponents
The Bar Rules outline the key rules relating to dealings between opponents See Bar Rules 51-58.. In a nutshell they are as follows:
· An advocate must not knowingly make a false statement to the opponent in relation to the case.
· If an
advocate unwittingly makes a false statement to an opponent, he or she
must take all necessary steps to correct the misrepresentation as soon
as he or she becomes aware of it. (On the other hand, the advocate is
not obliged to correct an opponent’s mistaken understanding of some
fact.)
· An
advocate must not deal directly with the opponent's client unless the
opponent consent or the circumstances are so urgent as to require direct
contact AND there would be no unfairness to that party in doing so.
(An advocate is, however, allowed to speak to the party to inquire
whether he or she is represented and by whom.)
· Generally,
lawyers must not have any communications with a court in the absence of
their opponents. The exceptions allowed under the rules are where a
court requires an answer from the lawyer; where, after disclosure of
the nature of the communications, the opponent consents or where there
is an ex parte application or hearing of which proper notice has been
given to the opponent. A lawyer is only permitted to raise in court
those things which he or she has disclosed to the opponent and for which
consent has been granted by the opponent. If such a communication does
take place, it is incumbent on the advocate to promptly notify the
opponent of what had passed in the court.
Any breach of these rules will be regarded as unprofessional or as professional misconduct.
Lawyers can also diminish their own
standing in the court’s eyes in the way they deal with opponents in less
formal ways. In my view, there is rarely, if ever, any need for
hyperbolic, melodramatic denunciations of one’s opponent either in
correspondence or in court. It is one thing dispassionately to make a
complaint about an opponent’s conduct and another to launch into a
florid rodomontade. It is stressful enough in court for everyone simply
running a case without the burden of inflamed emotions being added.
Bickering, tantrums, sledging, petty
point-scoring at the Bar table all compound the difficulty of a case
without in any way assisting in its resolution. For that reason such
displays are universally abhorred by judicial officers. I once had the
misfortune to appear as young solicitor against a very well-known QC in a
Supreme Court bail application. He spent virtually the entire time I
was on my feet hissing at me soto voce, “What are you doing here, you
child?” and other such imprecations. He distracted me and the judge and
diminished himself.
On the other hand, lawyers who are
reasonable to one another, make their arguments rationally and with a
degree of gravitas are likely to assist their clients (or at least do no
harm to them), to run a case efficiently and to find the Bench
attentive to them. Michael McHugh SC once impressed me with his style
as an advocate when conducting an application in the Sydney Local Court.
An objection was taken by his opponent. After a moment’s thought,
McHugh responded laconically, “Yes, I think my friend is right. I
withdraw the question.” It was done gracefully and with a minimum of
fuss and that characterised his approach throughout the somewhat complex
application.
This is, of course, the counsel of
perfection. From time to time, you will find yourself against an
opponent who sledges, who is irritating, who may even be untrustworthy.
Some lawyers are incompetent and unprofessional and consequently can’t
help irritating their more professional opponents. In other cases, they
are competent but have adopted an unnecessarily aggressive approach in
the hope of gaining some short-term tactical advantage.
In a highly competitive profession like law
and in the even more competitive environment of a courtroom, it is easy
to become distracted by an opponent’s antics, particularly if the Bench
does not seem to be interested in intervening to prevent the
misbehaviour.
My advice, however, is that you maintain
your dignity, you concentrate on your case, that you cocoon yourself as
best you can against the opponent and that you direct your attention as
much as possible to the court and away from him or her. Whether it is
obvious or not, the Bench will be observing the behaviour of both
advocates and will almost certainly look more favourably upon the
advocate who is the still point in the storm. (This is not to suggest
that by doing so you will win the point because the court will still
decide that on its merits but you will certainly hold your ground more
easily by staying calm.)
I would add two further points. First,
litigation is a stressful and therefore a sometimes unhealthy
occupation. Those who keep their blood pressure down and do the job
professionally will do it longer and will enjoy it more than those who
are constantly seething with anxiety, anger and adrenalin. Second,
what goes around comes around. If people act unprofessionally, it
catches up with them one way or another and glad are the hearts of many
went it does.
Finally, be fair to unrepresented opposing
parties. Most judges and magistrates I know do not like lawyers
bullying unrepresented people. Just as offensive is the approach some
lawyers adopt of seeking to enlist the Bench, with a sort of a nod and a
wink, as a fellow lawyer against the unschooled unrepresented person.
(vii) Duty to the client
The lawyer is not a mouthpiece for client.
A lawyer’s duty is to his or her client but this does not mean that
the lawyer is the client’s mouthpiece. While an advocate will,
obviously, take into account the desires of his or her client, the
lawyer takes responsibility for the tactics used in the courtroom. Many
an accused has been convicted because a lawyer has decided to follow
his or client’s instructions to ask a question or a line of questions
which has proven fatal to the accused. See Bar Rules 16-20, especially Rules 18 and 19.
The late Justice Ashburner once said, “There are two types of
advocate: those who are talking to those behind them and those who are
talking to those in front of them. Only the latter are any good.” Cited in John Coombs QC “Advocacy: Tact in action” in Anthony Young The Advocate’s Notebook, Prospect Books, Sydney 1997 p.172.
You are not in court to provide emotional
support for the client or to boost his or her self-esteem but as his or
her legal expert and adviser. It does the client no favours to hide the
bad news from him or her. How can a lawyer be acting in the client’s
best interests by doing that? Advocates who prefer to be liked by their
clients for telling them what they want to hear rather than
representing their best interests are failing their clients. Good
advocacy begins in chambers or in the office, not in court.
Lawyer cannot be a material witness for client. An advocate or solicitor cannot be a material witness for his or her own client. See Bar Rule 76 and Solicitors’ Rule 19.
The potential for actual or apparent conflict of interest is obvious.
Interestingly, three times this year I have seen solicitors called to
give evidence in breach of this rule. It is embarrassing for them and
for the court when it happens. If you cannot avoid being a witness in a
case, you must withdraw in accordance with the rules.
5. Onto your feet in court
A case can only be prepared up to a certain
point. Once an advocate rises to examine or cross-examine, a different
set of skills comes into play. The skills of examination-in-chief and
cross-examination have been the subjects of many books and articles.
Although I will offer a few ideas here on them, they are specialist
topics worthy of much deeper consideration than is appropriate here.
What follows is a list of tips, in no particular order, which may help
the inexperienced advocate:
(i) Style and presentation
Don’t repeat a question several times.
Judges, magistrates and juries are not stupid. If a witness
prevaricates or is unresponsive or argumentative, they will ask
themselves why and the answer will usually be obvious.
Don’t argue with witnesses, opponents, the Bench. It looks bad, it is a distraction from the main issues and, besides, labouring a point is a waste of time.
Don’t interrupt the judge or magistrate when being spoken to.
As discussed above, you are entitled to politely disagree with the
Bench but interrupting to contradict the judge or magistrate is highly
counter-productive.
Don’t interrupt your opponent’s address.
If you disagree with something your opponent states in submissions,
make a note and deal with it in your turn. If your turn has passed,
seek leave to raise the point anyway. You are entitled to correct
misrepresentations or misapprehensions the court may form as a result of
something said by an opponent. It is the sign of an inexperienced
advocate to “object” to things said in submissions.
Build your voice.
If you have a weak or a light voice, you are handicapped as an
advocate. In many courtrooms the acoustics are poor and the microphones
do not amplify. These difficulties are intensified in places like the
Downing Centre and Central by doors banging, the noise of air
conditioners, court officers calling out names and so on. Some lawyers
are naturally able to cope with such impediments. Others, however, need
to work at it. Simple breathing exercises can improve volume and
delivery enormously. Secondly, an advocate with a voice that sounds
pleasant has a distinct advantage over those with disagreeable voices.
If you were locked in a room for six hours a day would you prefer to
listen to Cate Blanchett or Judge Judy? It is not critical but it may
make a difference on the margin.
Use simple, direct language and be economical with it.
Verbose, prolix lawyers are not only boring but sometimes become
figures of fun. I don’t know about others but I find the Baroque patois
of some lawyers, who habitually employ phrases such as “I rise to
object…” or “What has fallen from Your Honour…”, grandiloquent but
vacuous. Their thinking tends to be as ponderous as their phraseology.
(While on the point, don’t use Latin unless you can translate it into
English.) On the other hand, a powerful verbal picture or an elegantly
simple sentence is a pleasure to listen to and a valuable advocacy tool.
Build your vocabulary by reading – the best advocates I know are
well-read in history and literature. I would add philosophy, science
and the visual arts as great furniture for a mental library.
Use the appropriate vocabulary.
Law courts have their own jargon. It is efficient and helpful to the
Bench if advocates use the language of the Rules, the Evidence Act, the
relevant authorities and, where appropriate, makes reference to those
statutes, rules and authorities.
(ii) Useful techniques
Trial notebooks.
Using a lever arch folder with separate sections for each witness,
exhibits, notes, chronologies and so on is an efficient way of
organising material. If an advocate gets organised in the first place
it helps to stay organised during the running of a case. The more
efficiently and smoothly the advocate can run a case, the more
professional (and therefore compelling) he or she will be.
Use chronologies and summaries. We
are culturally highly attuned to chronology and orderly revelation of
plots – since Aristotle’s day we have enjoyed hearing our stories with
beginnings, middles and ends. See, for example, Aristotle The Poetics Ch.7 “The Scope of the Plot”.
The preparation of a chronology, especially in a complex case, is a
very useful way of synthesising and digesting all the relevant evidence.
Use maps, digital photographs, physical exhibits.
About 50 per cent of our brains are devoted to vision and the
processing of visual information. Not surprisingly, the quickest and
most efficient way for most people to absorb information is visually.
BUT if possible prepare diagrams and maps beforehand. It is a
witheringly boring experience having a witness attempt to draw a diagram
in the witness box. We also like to touch things as we look at them.
If possible, use physical exhibits rather than pictures – they have a
much more powerful effect on the imagination.
Written submissions.
Written submissions can be very useful but, like Powerpoint
presentations, can be vastly overdone. Courts often make the mistake of
seeking written submissions and this can lead to a ocean of paper in
which the critical issues are submerged. Oral submissions tend to be
focussed on the key facts and legal issues. Nevertheless, written
submissions, if succinct, or outlines of submissions are powerful
organising tools.
Working copies of exhibits.
It is the invariable practice that judges be provided with working
copies of critical exhibits in the superior courts. The usefulness of
having copies while a witness is examined or cross-examined about the
exhibit is self-evident yet in the Local Court it seems to be the
exception rather than the rule that copies are brought to court.
Copies of authorities and legislation. In
my view, it is unprofessional, discourteous and unfair for a lawyer to
seek to argue a point of law without first providing a copy of the
authority or legislation relied upon to his or her opponent.
Alternatively, the lawyer should provide the reference in sufficient
time for the opponent to obtain a copy. It should also go without
saying that copies are to be provided for the Bench. Unfortunately,
however, many lawyers in the Local Court not only ignore their
opponents’ needs but fail even to provide copies for the Court.
(iii) Taking cues
Many, but not all, judges and magistrates
offer cues as to how they see a case or an argument going. Ordinarily
the cue is a question. Sometimes the Bench will engage in a sort of
Socratic dialogue with the advocates. None of this is designed to
create difficulties or to thwart the advocate from advancing his or her
case. Rather, it is intended to focus the discussion on a particular
point troubling the court.
Sometimes the judge or magistrate will
simply say, “I don’t need to hear from you, Ms Smith”, meaning that
there is no necessity for her to make any submissions because the case
or the point is going to be decided in her favour. On occasion, the
judge or magistrate may say, “I don’t need to hear from you on
such-and-such a point, but what do you say about X ?” This is obviously
an indication that she must then address X but need not deal with the
other point because that will go her way. It is always useful to
conclude submissions by saying something along the lines of, “Unless
there is anything else on which I can assist Your Honour, those are my
submissions”. Sometimes at that point something will occur to the Bench
with which the advocate can then deal.
If a judge or magistrate makes a ruling,
that is NOT a cue for a further round of debate. When he or she says,
“I’m against you on that, Ms Rumpelstiltskin” that means “Sit down, shut
up and get on with the case.”
(iv) Asking questions
Learn when it is and is not appropriate to ask leading questions. What
is a leading question? One that (a) implies the answer or (b) assumes
the existence of a fact which is in dispute. An example of (a): Is
your name X? An example of (b): When did you stop beating your wife?
You may ask leading questions in examination-in-chief when the answer
is not contentious. For example, you may ask leading questions if the
expected answer is not in dispute or to lead the witness to a topic. See GPI Leisure v Herdsman Investments P/L (No 3) [1990] 20 NSWLR 15 at 25, Young J.
For example, in leading to a topic, it is permissible to ask a
question like, “Was anything said when X came into the room?”. That
question obviously anticipates a certain answer and is therefore leading
and so should be followed by a non-leading question. The exchange
might go like this:
Q: Was anything said when Mr Smith came into the room?
A: Yes, Mr Smith spoke to me. He was panting.
Q: Very well, what did he say?
A: He said, “I just ran over a bloke down at the junction. I think I killed him.”
Whether or not it is against the rules to
lead when in chief, it is an error, in my opinion, for advocates to use
leading questions in contentious parts of the evidence because to do so
reduces the impact of their own witnesses’ testimony. Generally
speaking, it is more persuasive for the court to hear the witness’s
story directly rather than through the mouthpiece. In cross-examination,
on the other hand, leading questions are not only permissible but are,
indeed, desirable.
Learn how to ask non-leading questions.
Inexperienced advocates often have difficulties in formulating
non-leading questions. Non-leading questions are open-ended. The
easiest way to ask non-leading questions is to use “when, where, who,
why and how” questions. It is hard to go far wrong using that
technique.
Don’t ask improper questions. Section 41 of the Evidence Act 1995 prohibits
improper questions. It is improper to ask misleading questions. It is
improper to ask “unduly annoying” or offensive questions.
It is also improper but, unfortunately,
common in the Local Court for advocates to ask witnesses to offer a
comment on the truthfulness or otherwise of another witness’s testimony.
So, for example, an advocate might ask a question along these lines:
“So, Detective Smith, if Mr Miller said that he not present when the gun
was found that would be a lie, would it?” That kind of question is not
only improper but is futile. It is for the magistrate, not the
witness, to assess the credit and credibility of other witnesses.
Develop and employ techniques of controlling witnesses to avoid problems.
For example, to avoid inadmissible hearsay coming out, the advocate
might preface a question in this way: “Without telling us what was
said, did you then have a conversation with Mr Churchill?” If a witness
has a tendency to ramble, reel them in by saying something like, “I’ll
stop you there for a moment and ask to you to tell us…”
Avoid asking the bleeding obvious.
For reasons that escape me, some prosecutors seem compelled to ask
persons who allege that they were attacked by persons previously unknown
to them whether they consented to being knocked to the ground and
having their teeth kicked out. Other examples of such inanity I have
heard in recent times include, “How did you feel when he came at you
with a broken glass?” and “What degree of force did he use when he
grabbed you by the hair and dragged you to the door?”.
(v) Objections
Object promptly. It is difficult to make a worthwhile objection once an answer has been given.
Don’t interrupt the question. Some advocates, however, make the opposite mistake of objecting before the question is complete. Don’t go off half-cocked.
Give a short reason for the objection.
I suggest you says something like, “I object. Hearsay.” The basis for
the objection won’t always be obvious to the Bench and a one-word
explanation will save an inquiry being made. You are setting yourself
up to be dumped, however, if you say, “I can’t see the relevance of
that!” All too often the reply from the Bench will be, “Well, I can.
Please answer the question Mr Big.”
There is no rule of law that conversations must be given in direct speech.
It is preferable that the evidence of a critical conversation be given
in direct speech because that is the best evidence but it is not
mandatory. Nor is there a proper objection as to “form” if the
conversation is given in indirect form. See LMI v Baulderstone (2001) 53 NSWLR 31.
Learn the first-hand hearsay rules. It is a matter of some amazement to me that, 10 years after the Evidence Act commenced,
I am still hearing objections on the basis of “hearsay” to material
which is admissible under Pt 3.2 Div 2 of the Act as first-hand hearsay.
“The document speaks for itself”. This is not a rule of law as such but a formulation of the opinion rule. See s.76 of the Evidence Act.
A witness is not permitted to offer opinions about a document any more
than about other sorts of evidence. On the other hand, it is
permissible for a witness with the relevant expertise to decipher
symbols, acronyms, abbreviations and so on. The document may also, in
certain limited circumstances, come within the exception to the opinion
rule if expert evidence is required to understand its contents. See s.79 of the Evidence Act.
Expert evidence. The jurisprudence in relation to s.79 of the Evidence Act has
developed considerably since 1995 and is quite complex. If expert
evidence is relied upon by either party it should conform with the
requirements of s.79 as interpreted by the Court of Appeal (especially
Heydon JA as he then was) in Makita (Australia) Pty Ltd v Sprowles. (2001) 52 NSWLR 705. See also the decision of the High Court in HG v The Queen (1999)
197 CLR 414, especially the judgment of Gleeson CJ for a general
commentary on the dangers of unrestrained “expert” evidence. Objections to expert evidence should be based on the test laid down in Makita.
(vi) Cross-examination
This is not a treatise on cross-examination but a few pointers on matters that seem frequently to arise in the Local Court:
“It’s a commando raid, not the invasion of Europe”. Irving Younger. “The Art of Cross-examination” videotape 1975. You must conceptualise the whole case and see where this witness’s
testimony fits. Then hone in on that point. Irving Younger suggests
that, for maximum effect, a cross-examination should deal with only
three topics when credit is the only issue.
Cross-examination is about listening and observing as well as asking questions.
I don’t think that cross-examination can be learned from books or
even from other people although some good tips can be picked up from
both. Excellent cross-examiners prepare but preparation is not the
panacea to all the problems of cross-examination. The best
cross-examiners are very good listeners. As well as having an intimate
knowledge of the evidence in the given case, they rely on their
imaginations and experience of life. The best cross-examiners
demonstrate a powerful understanding of how people think and feel and
act in certain situations. They are shrewd observers of other human
beings. They know, or have a very good idea, of what is realistic and
what is implausible in the circumstances of the case.
See Justice Michael McHugh “Our Greatest Trial Lawyer?” Bar News,
Autumn 1988 7-8 on Jack Smyth QC’s cross-examination techniques and J.W.
Smyth QC “The Art of Cross-examination”, Bar News, Autumn 1988 9-18.
Watch the witnesses as much as possible.
If you have been served with the statements of the other side’s
witnesses, it should be unnecessary to take notes of their evidence
verbatim. I suggest that the best cross-examiners observe the witnesses
closely and simply make the occasional note of a question they may want
to ask rather than burying their heads in their notebooks. It takes a
lot of confidence in your own grasp on the evidence simply to watch the
witness you are about to cross-examine without taking a full note but
this is where the time spent preparing really pays off.
The best cross-examinations gain concessions.
Many inexperienced or poor cross-examiners think that their sole job
is to “destroy” the witness by massive confrontation. Not so. The best
cross-examiners will frequently use cross-examination as an opportunity
to gain useful evidence from the other side’s witnesses to advance their
own cases.
Don’t cross-examine unnecessarily.
Many times I have seen advocates attempt to undermine the credit of
witnesses whose evidence is purely formal. For example, I have seen
police officers who attended the scene of a road accident and whose only
evidence is that they saw two motor vehicles smashed in the roadway
cross-examined at length about their notes, the (immaterial) differences
between their notebook entries and the COPS entry made on the police
computer. None of this evidence was in issue or even relevant beyond
proving that a car accident had taken place at a certain location. Why
they bother asking a single question, let alone proving that it is
several months since they made their statements is beyond me. It is
boring and a complete waste of time and indicates that the lawyer cannot
see the wood for the trees.
Ask simple questions. If possible, let each question contain only one proposition.
Think carefully about cross-examination on prior inconsistent statements.
Most books and papers on cross-examination spend much time discussing
the undermining of the credibility of a witness by the use of prior
inconsistent statements. There is, however, a trap for poor advocates
in using the prior inconsistent statement. I suggest that advocates
ought not cross-examine concerning a prior inconsistent which is less
favourable to their parties than the answer they have already got. If
the prior inconsistent statement is proven it is in evidence for all
purposes and may be used as evidence against you. See ss.43 and 60 of the Evidence Act.
I have seen a situation in which an independent prosecution witness
was reminded by the cross-examiner of what she had stated in her
statement to police. That evidence was stronger against the accused
than the version she gave months later when her memory had faded
somewhat. She agreed that the earlier statement was correct and said
that, due to the passage of time her oral evidence in court was
incorrect. Then, having had her memory refreshed in this way, she gave
further evidence even more damaging to the accused.
Learn the rule in Browne v Dunn.
Once upon a time I wouldn’t have thought it necessary to suggest this
because even the most inexperienced advocate should know and abide by
the rule. Nevertheless, I have seen it breached many times, sometimes
by experienced but not very competent lawyers. I was surprised
recently, in a case I heard at Burwood, to hear a defence witness give
an account of something that had happened when, despite the fact that
the defendant was represented by a barrister, that witness’s version of
events had never been put to the prosecution witness whose account was
being directly contradicted.
I was even more astonished, when I raised the issue of Browne v Dunn
with the barrister at the end of the case, to be told by him that he
believed that, since this evidence was being given by a witness other
than the accused, the rule in Browne v Dunn did not apply. A failure to comply with Browne v Dunn
is a serious tactical error. It both allows the other side to suggest
that the evidence given in breach of the rule is recent invention and to
call evidence in reply See s.46 of the Evidence Act..
On the other hand, it is unnecessary to go
through the tedious of process of “putting” propositions to a party upon
whom evidence has been served previously in statement or affidavit
form, thus putting that party on notice. This is because the rule in Browne v Dunn is
one of procedural fairness: propositions must be put so as to give the
witness or the party a chance to offer an answer or an explanation. If
the proposition has already been put by serving, for example, a police
brief or a collection of affidavits of, say, the plaintiff’s evidence,
the defendant or accused (as the case may be) has been put on notice of
the evidence to be led and has the opportunity in his or her case to
give contradictory evidence to meet it.
Don’t quibble about little things.
Everyone on the Bench and in juries knows that people make small
mistakes all the time. Pedantic, querulous cross-examinations about
non-issues rarely reduce a witness’s credibility. At best such
cross-examinations are time-wasting and at worst they look desperate.
Don’t cross-examine in relation to credit without proper instructions.
It is critical that advocates learn and understand the advocacy rules
in relation to cross-examination of witnesses on credit. Advocates must
not make allegations against other persons unless the advocate believes
on reasonable grounds that the factual material already available
provides a proper basis to do so. NSW Bar Rules Rule 36. See generally Rules 36-40. Bar Rule 37 is particularly important:
A barrister must not allege any matter
of fact amounting to criminality, fraud or other serious misconduct
against any person unless the barrister believes on reasonable grounds
that: (a) available material by which the allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation
to be made, after having been advised of the seriousness of the
allegation and of the possible consequences for the client and the case
if it is not made out.
(vii) Closing addresses.
These remarks relate mainly to criminal cases but have general application.
Plan your closing address before the case starts.
If you have analysed the issues and the evidence you should know that
what you plan to say in final submissions is, for example, that the
prosecution has not proven beyond a reasonable doubt that your client
was not acting in self-defence. Everything you do during the case ought
to be aimed at reinforcing that submission. Anything that does not,
ought be jettisoned from your plan.
Control the agenda and attack the strengths of the opposition. Focus on the issues and put your slant on them, then deal
with your opponent’s arguments point by point. Having made your
points, the detailed demolition of your opponent’s arguments will, if
all goes well, leave only one set of arguments standing. Justice Heydon
has observed, “Often advocacy in NSW proceeds with very powerful
statements on both sides of the question. But sometimes the statements,
powerful though they are, do not grapple with the best points of the
competing argument.” Justice J.D. Heydon “Heydon on advocacy” (2003) 23 Aust Bar R 134 at 135.
Ian Barker QC’s tips for closing a defence case. Ian Barker QC “Opening and Closing Addresses to a Jury” in Eames, G. Criminal Law Advocacy Legal Aid Commission of SA, Adelaide 1984.
Mr Barker addressed the SA Legal Aid Commission conference in 1984 and
made the following suggestions for final addresses for defenders.
First, if possible assert the accused’s innocence and rely on
“reasonable doubt” as a fallback position. Second, deal with the issues
first and the credibility of the witnesses second. Third, meet the
Crown’s assertions head on. There is no use pretending they are not
there – if the accused’s lawyer does not do so, the assumption will be
made that the accused is trying to avoid the issue. Fourth, put the
accused’s case clearly and explain the difficulties in it as plausibly
as possible. Fifth, deal confidently and clearly with the law. Sixth,
if you have a good point emphasise that – don’t lose it in a blizzard of
minor points. Keep an eye on the spinal column of your case.
Use logic and structure.
One of the best addresses I have seen was by Bret Walker SC in the
Federal Court where he appeared on behalf the Commonwealth on an appeal
by Mr Phillip Smiles, a NSW MP who had been charged with tax offences.
Mr Walker got and began his address by saying something like, “We submit
that Your Honours ought refuse this appeal for the following reasons:
1…, 2… , 3…, 4…, 5…, 6…” The argument was tight and structured and very
persuasive. The technique is very effective whenever any kind of
submissions are made.
Justice Haynes’s six commandments. In October 2004, in a paper to the WA Bar Association, Hayne J laid down six rules for advocacy in the High Court. http://www.hcourt.gov.au/speeches/haynej/haynej_25oct04.html They are a useful checklist for structuring submissions in any court:
· counsel must know the facts of the case;
· counsel must know the law that applies to the case;
· counsel must know what order that he or she wants the court to make;
· counsel must know how he or she wants to achieve that result;
· counsel must convey that to the court; and
· counsel must avoid distracting the court from the path that he or she wants it to follow.
Dixon’s holy grail.
“It is not case law which determines the result; it is a clear and
definite solution, if one can be found, of the difficulty the case
presents – a solution worked out in advance by an apparently sound
reconciliation of fact and law. But you may learn that the difficulty
which has to be solved must be felt by the Bench before the proper
solution can exerts its full powers of attraction.” Sir Owen Dixon Jesting Pilate, Law Book Co, Sydney 1965 p250-1.
Sir Owen Dixon was a keen psychologist and not the wooden legalist he
is sometimes now thought to be. An advocate who can see both sides of
the question and presents arguments that saps the apparent strength of
the opposing contentions is likely to present a most attractive (and
winning) solution to the problem to be resolved by the court.
6. Pleas
Although much of the above applies to pleas they present some special traps for young players.
Be ready before you stand up to speak.
Have your client in the courtroom ready before standing up to commence
a plea. Even if only a couple of minutes are wasted while the client
is called into court, these little bits of time accumulate and, by the
end of a busy list, can add a significant amount of time to it.
Confront the problem.
The problem for a given accused may be the objective seriousness of
the offence to which he or she is pleading guilty, his or her past
record or both. No amount of fudging will eliminate the problem. Nor
will brazen denial of the seriousness of the problem diminish it. A
useful technique I have seen employed by a very able solicitor, Mr Greg
Murray, is to commence by saying, “Your Honour will be troubled by …”.
It is much easier for a judicial officer to accept a plea in mitigation
when he or she is satisfied that the accused fully understands and
accepts the seriousness of the issue. Conversely, a refusal by an
accused’s lawyer to do so tends to lead to a certain sense of
indignation on the Bench.
Structure the plea.
A plea should have a framework. The elements of that structure
include (a) the objective facts of the offence proffered by the
prosecution; (b) any additional account given by the accused to explain
his or her conduct at the time of the offence; (c) the accused’s
criminal history, if any; (d) the accused’s subjective features at the
time of the offence; (e) the present circumstances of the accused; (f)
any extraneous subjective material, such as testimonials; (g) a
submission as to the appropriate outcome for the accused.
Contrition.
It seems to me that the element of contrition is often underrated or
even overlooked in a plea. As a matter of legal principle, a plea of
guilty is said to imply contrition but this will often not be evident in
the presentation of the case in court. A concrete demonstration of
contrition by an accused is far more powerful than a mere plea of
guilty, especially in the face of a strong prosecution case. For
example, it is far easier to believe that a person who, the day after
he is arrested, writes a letter of apology to a police officer whom he
has assaulted in a drunken incident at the Rocks is sincerely contrite
than someone who enters a guilty plea three weeks later but offers no
direct apology or whose “apology” comes in the form of a lawyer
perfunctorily announcing, among other submissions, that his or her
client is “sorry”. Evidence of sincere contrition is a powerfully mitigating factor on a plea.
Rehabilitation.
If a suggestion is to be put to a court that an accused undertake, for
example, drug counselling or psychological therapy, the court will want
to hear concrete details. Mere speculations about an accused entering
some program or other are of no assistance to a court engaged in a
sentencing exercise. Very often magistrates hear pleas in which it is
put that “Mr Dillon would like to do”, say, a residential rehabilitation
course. What this suggests is that lawyer has, just before commencing
the plea, popped this suggestion into the mind of the accused so as to
have something – anything -- to put to the magistrate. Most experienced
magistrates won’t buy these sorts of vague suggestions. The better
course is either, if time is available, to make an arrangement by
telephone with the relevant service provider to come to court and assess
the accused there and then or to seek a short adjournment to have the
accused assessed by the service provider.
References and testimonials.
General character references are useless. To have impact they must
say that the referee knows that the accused has pleaded guilty to
committing the specific offence before the court. It is unnecessary to
provide a lever-arch folder of documents – courts do not have time for a
complete biography when dealing with a plea. Select your best three or
five references and tender those.
Don’t make bold predictions about the future.
“You will never see this man again in a courtroom.” This statement or
something like it, so often declaimed in the Local Court as to be
almost a mantra, is both bold and pointless. The Irish would see it as a
temptation to Providence. It adds nothing to a plea.
7. In conclusion
Judges and magistrates are sometimes criticised for being tyrannical. See, for example , Jeff Phillips SC “Dinosaurs and Bullying Judges” cited in Sydney Morning Herald 9 December 2004.
If judicial officers are cranky and impatient it is usually because
they are under great pressure to complete a significant number of cases.
Time is precious to them. They appreciate efficiency and economy at
the Bar table and are irritated by inefficiency, slowness, lack of
preparation.
Probably the best way to improve as an
advocate is to work with top-class advocates but those opportunities
will be rare for most young lawyers. You can law a considerable amount
from watching good advocates at work. I would not spend a great deal of
time watching advocates in the Local Court if only because the quality
varies so much. While there are excellent advocates appearing before
magistrates, the best spend most of their time in the higher courts.
Reading advocacy books will help to some degree.
Good advocacy in any court is not easy but
neither is it an ability given only to a select few. It is not Olympian
in its exclusivity. It is a logical and rational skill. Anyone
capable of earning a law degree ought be capable of becoming a
reasonably competent courtroom lawyer.
A month before the American Civil War broke
out, that great courtroom lawyer, Abraham Lincoln, in his First
Inaugural Address, appealed to the people of the South to maintain the
Constitution by hearkening to “the better angels of our nature.” It is,
I think, no coincidence that he elided the concepts of the rule of law
and angelic humanity in contrast to the barbarism of armed conflict. He was right of course: over 500,000 American lives were lost in the Civil War.
The legal system is imperfect and lawyers
are not popular figures. Nevertheless, whatever might be said of us on
talkback radio stations and in tabloid newspapers, good lawyers are an
indispensable pillar of a working democracy governed by laws rather than
guns or money. This ought not make us arrogant but humbly proud of our
profession.
The better the legal system works, the
greater the confidence the public can have in its legal institutions.
The higher the quality of advocacy, the better our legal institutions
work. Saul Bellow, in his great novel The Adventures of Augie March, saw
the genius of America as making “nobility of us all”. In a less
exalted, but nonetheless real, way advocates are in pursuit of a noble
dream too. To call on Dixon’s wisdom for the last time: “I can only
say that as I view it, the tradition of the law is a trust, entrusted to
the hands of the lawyers of the day for the benefit of the future as
well as for the benefit of the present.” Sir Owen Dixon Jesting Pilate, Law Book Co, Sydney 1965 p251.
The attacks of 11 September 2001; the
bombings in Madrid, Bali and London; the wars in Iraq, Afghanistan and
the Balkans are all stern reminders to us that history has not ended in
the unalloyed triumph of liberal democracy. No culture is ever
immutable or beyond challenge. Without necessarily being conscious of
it, every day advocates demonstrate civilised and democratic values as
they battle one another with words and documents rather than bombs or
Kalashnikovs. Advocacy is a worthy calling, a trust, and therefore
worth pursuing excellently.
Appendix A
Justice PW Young’s Rules of Court Etiquette For the full list and treatment see Young, PW “Court Etiquette” (2002) 76 ALJ 303
Courtesy to an opponent
1. Always inform your opponent if you are going to be late.
2. Do not sledge.
3. There is no duty to help fools.
4. Respect the procedure.
5. Do not mention more than two matters at a time.
6. Respect seniority.
7. Be courteous in correspondence.
Courtesy to the court administration and witnesses
8. Estimate the time accurately.
9. Always advise the court as soon as a matter has settled.
10. Lists of authorities are to be provided in due time.
Conduct in court
11. Put your name on the list.
12. Observe the Advocacy Rules strictly.
13. Observe the etiquette of the Bar table.
14. The Bar table is not to be left unoccupied whilst the judge is still sitting.
15. Do not leave the court whilst a judge is delivering an oral judgment.
16. Speak from the Bar table.
17. Call persons producing documents early.
18. Endeavour to minimise the time witnesses wait around.
19. Do not abuse the witness.
20. Observe the rules concerning pagination of documents.
21. Do not confer with witnesses under cross-examination without the consent of your opponent.
22. Silence must be kept whilst a witness is being sworn.
23. Respect subpoenaed documents [and court files].
24. When tendering subpoenaed documents announce to whom they should be returned by the court.
25. Generally speaking, do not ask the judge for advice.
26. Respect the court staff.
27. Speak for the transcript.
28. Do not speak while someone else is speaking.
29. Do not talk loudly inside the courtroom.
30. Avoid approaching witnesses in the witness box.
31. No mobile phones in court.
32. See your opponent early.
33. Write out the orders.
34. Do not talk about the case or a judge in the lift.
35. Do not read your newspaper in court.
Courtesy to the judge
36. Be on time.
37. Do not patronise the judge.
38. Do not disparage the judge.
39. Help the judge.
40. Give the judge something to hang his or her hat on.
41. Keep your distance from the judge.
42. Do not communicate with the judge out of court.
43. Always stand when addressing the judge.
Appendix B
ADVOCACY: USEFUL READING
BooksGeorge Anastaplo On trial: from Adam & Eve to OJ Simpson, Lexington,
F. Lee Bailey To Be a Trial Lawyer Wiley, New York 1994
Marilyn Berger et al. Pre-trial Advocacy: Planning, Analysis & Strategy, Little,
Louis Blom-Cooper (ed) The Language of the Law, Bodley Head, London, 1965
Peter Megargee Brown The Art of Questioning: Thirty Maxims of Cross-examination,
Collier Books, New York 1987
Richard Du Cann QC The Art of the Advocate, Penguin, Harmondsworth 1964
College of Law The Advocacy Book, College of Law, Sydney 1985
Lord Denning The Discipline of the Law, Butterworths, London1979
Sir Owen Dixon Jesting Pilate, Law Book Co, Sydney 1965.
Geoff Eames (ed) Criminal Law Advocacy, Legal Aid Commission of SA,
Michael Gilbert (ed) The Oxford Book of Legal Anecdotes, Oxford University
Harold H. Glass QC Seminars on Evidence, Law Book Co, Sydney 1970.
Michael Hyams Advocacy
Jill Hunter & Kathryn Cronin Evidence, Advocacy and Ethical Practice: A criminal law
commentary, Butterworths, Sydney 1995
James W. McElhaney Trial Notebook, American Bar Association, 1981
Thomas Mauet & Les McCrimmon Fundamentals of Trial Techniques (2nd Aust edn),
John Munkman The Technique of Advocacy, Butterworths, London 1991
David Pannick QC Advocates, Oxford UP, Oxford 1992 *
Max Perry Hampel on Advocacy, Leo Cussen Institute, Melbourne 1996
David Ross QC Advocacy, Cambridge UP, Cambridge 2005
Lee Stuesser An Introduction to Advocacy, Law Book Co, Sydney 1993
Francis Wellman The Art of Cross-examination, Collier Books, New York 1979
Anthony Young The Advocate’s Notebook, Prospect Books, Sydney 1997
Articles
Lord Alexander of Weedon QC “The Art of Advocacy”, Bar News, Summer 1991
Judge Carol Baird “Advocacy in Provincial Court: A view from the Bench”
Justice Dyson Heydon “Heydon on advocacy” (2003) 23 Aust Bar R 135
D.F. Jackson QC “Appellate Advocacy”, (1992) 8 Aust Bar R 245-254
Justice Michael Kirby “Ten Rules of Appellate Advocacy”, (1995) 69 ALJ 964-
Justice Michael McHugh “Our Greatest Trial Lawyer”, Bar News, Autumn 1988
“Cross-examination on Documents” (1986) 2 Aust Bar R
J.W. Smyth QC “The Art of cross-examination”, Bar News Autumn 1988
Articles (cont’d)
Robert Stitt QC “The cross-examination of expert witnesses: A practical
approach via a personal excursion” (2005) 26 Aust Bar R 219-236
Paul Venus “Five tips for drafting better affidavits and statements”,
Law Society J, Sept 2002 60-62
Website
www.au.af.mil/au/awc/awcgate/awc-law.htm#advocacy.
This is a site for US military lawyers. It has a lot of useful ideas
on trial advocacy for trainee lawyers selected from The Army Lawyer journal.
* David Pannick’s book Judges (Oxford UP 1988) is also an excellent read. He has a fortnightly column on law in The Times – it can be checked on the website | | | | |
