I write this paper based on the experience gained from over 40 years of practice, with elocution and public speaking training as a youth and with a life time’s history of engaging in public speaking, not only in Court, but in theatre productions, radio and television and addressing large gatherings.
I intend to leave to others, discussion concerning aspects of advocacy that more readily come to mind and instead deal with advocacy in the sense of our ability to effectively communicate.
The purpose of this paper is to identify some areas where lack of clarity of the written or spoken word, can let us down and to suggest how we can improve our presentation.
When we first learn to speak, we quickly find out that the more articulate our words, the more likely is the response going to match what we say. Conversely, the less intelligible our utterances, the less likely are we to be rewarded in any responsive way for what we have said. This may be why most babies learn to say “no” before “yes”.
Why do some people take for granted in our profession, that clarity of thought or expression comes automatically and does not require any conscious effort on their part?
The day of the Internet has brought with it an expectation of instant gratification. It has also brought a perception that a letter will be answered immediately.
Unlike in my early days of practice, before dictaphones or tape recorders, when a letter was received, an answer would be dictated to shorthand later that day or the next, the typed letter would be checked and amended, or signed. The norm these days is for an email to be sent direct to our computer, with the expectation that we will interrupt whatever we are doing, in order to answer it immediately.
Not so many years back, a solicitor, now magistrate, used to send me briefs with a handwritten “post it” note with words to the effect that he did not want an answer from me prior to a particular date. His explanation for this rather unusual request, was that by briefing me, he could gladly file the matter away off his desk for a week or two. The last thing he wanted, was an advice from me within a couple of days, which would in turn require him to once again wrestle with the matter.
This solicitor did not use emails and did not believe in them. All correspondence to or from him, was by “snail mail”. Emails were not read. He did not have an email address although each of his partners did.
In fact, his attitude has much to recommend itself because when I received a brief from him, it was complete. It was not littered with typographical errors, was well thought out and tended to identify the issues.
My master with whom I did my articles, used to emphasise to his trainees that a lawyer who is in a hurry doesn’t know his business.
For many years I could not understand what he meant. I thought it was an entreaty to go slow, whereas in practice he was very efficient and responded quickly to any work that came across his desk.
I now believe he was talking about the need to take one’s time in composing correspondence and in checking it for completeness and accuracy.
A quick three line answer by email, may not do you or your client justice because it is composed in haste, often without the mind being completely devoted to the subject of the response. How often have we sent off something short and prompt, only to later return to the topic and despair that what we said was ill considered or insufficient? Rather, were we to compose our answer when our mind was directed solely to that matter, I am sure that the response would be far more complete.
No doubt most readers will have heard it suggested that emails should be gathered no more than two or three times per day, as a means of reducing the short sharp, but incomplete answer. Many businesses teach their staff to regard emails as being the same as any other letter and retrieve them at the start and end of each day only and to respond to them in turn in the order that they were received.
A former colleague used to say that if a client does not understand his lawyer’s advice, the fault lies with the lawyer. He used to write his opinions as if he was speaking to the client, irrespective of the relative competence or experience of the instructing solicitor. In this way, his advices could contain multi syllable words to a professional, or very short, simple phrases, sometimes containing vernacular terms bordering on slang, to another.
Rarely did his client not understand what he was saying. I suspect that some of his Advices taught his instructing solicitors a few new words.
He was a master of advocacy in the sense that he expressed himself in writing or orally, in the clearest of terms.
When acting for a motorist who was sued for negligence for not swerving to avoid an out of control vehicle, his response was short, but complete.
After extensive argument by counsel for the Plaintiff he stood up and said,
“Unfortunately my client did not have the opportunity to take counsel’s advice as to what he should or should not do, so he stayed on his side of the road.”
That was his argument, summed up in one sentence. It is advocacy at its best.
He was a master at addressing a jury in language which they could understand and relate to.
Advocacy extends to being articulate in the spoken word. What I mean by this is that there is no use in preparing brilliant arguments if no one can hear or understand us. On any day in the Courts of any State, I suggest, you can hear the best of speakers, and regrettably, the worst of them. The poorly trained public speaker battles to be heard and struggles to be understood. That person is at a singular disadvantage over their opponent whose every syllable is crystal clear. Does anyone think that judges enjoy asking counsel to speak up because they can’t hear them?
It surprises me that there does not seem to be enough effort put into training future advocates in the art of public speaking. Mind you, I make the same criticism of many ministers of religion.
At least once a week, they traipse up into their pulpit, preach for what seems an eternity and step down, without many of the congregation being any the wiser as to what they were trying to say, because they could not be heard or understood. Not being heard is as bad as not being understood.
Repetition does not increase your chances of success. If the Court does not accept your argument the first time round, why is it more likely to accept it if you repeat yourself? Preparation and presentation of your address should ensure that you make your points, without repeating yourself.
Addressing a jury requires quite different skills to addressing a judge. When one addresses a jury there is little interaction which allows you to see whether they are understanding you or not. Occasionally, a rhetorical question will elicit some shaking or nodding of the head but that is the best you can hope for. Otherwise you must look for body language from the jurors as a possible guide to their response to your arguments.
Most judges are comfortable in engaging in dialogue with counsel. By dialogue I am referring to both the judge and counsel absorbing what the other has said and responding to it. A good judge is able to indicate to counsel what their tentative view is on a particular subject, allowing competent counsel to argue that point, or perhaps dissect it to show why the judge’s preliminary view is not the best view. Counsel who do their best to discourage dialogue with the judge, lose an opportunity to hear what the judge is thinking, rather than finding out when they read the judgment, that perhaps a moment’s silence during the address, might have been to their great advantage.
So, therefore, this paper on advocacy relates especially to clarity of thought in our written word, being articulate on what we say and how we say it and using our voice effectively, according to the circumstances.
Cross examination of a young widow in a loud threatening tone, will lose one any possible sympathy, whereas gentle cross examination in which the tone might only alter in the face of deliberate obstructiveness or obtuseness, is less likely to lose sympathy.
And think for a moment of the skills that you would need to effectively cross examine a child, without putting everyone off side with your client, for subjecting the witness to your questions.
Cross examination of the leader of a bikie gang on the other hand, is unlikely to succeed if he is given any reason to think that the cross examiner is soft and intimidated by him.
The skill of advocacy includes developing techniques which allow us to adapt to the various circumstances in which we speak as barristers. Cross examination technique has to alter according to the circumstances, so too the manner of our presentation.
Imagine a brothel owner, charged with living off the earnings of prostitution, being asked as the first question, to define his understanding of the meaning of the word “pimp” and when he gives the answer, being then asked if, on that definition, he was a pimp.
Those two questions just did not occur spontaneously. They were thought out, discussed, altered etc over several days. They set the tone for cross examination designed both to demonstrate that this witness was a brothel owner but also to demonstrate that he knew what he was doing was illegal but continued to engage in his unlawful activity.
The extravagant flourish and bending to the waist of counsel who has just been overruled, accompanied by “If the Court pleases”, is quite inappropriate and outdated theatrical behaviour and does nothing but draw negative attention to the performer.
On the other hand, counsel who simply accepts the ruling with a polite nod and then moves on, is not engaging in pure theatre and in so doing, is not allowing himself or herself to be distracted from their task, for the momentary perceived reward of drawing attention to themselves.
I would also ask you to consider the street side interviews that many lawyers engage in, when involved in litigation of public interest. We see very good, brief and engaging comments, which do not transgress our rules, but I venture to suggest that we see a great deal more of others who feel that they have to say something to appease the journalist, but in their haste, embarrass themselves, not to mention their client.
There are times where, when cross examining, or addressing a judge, there is no harm in smiling. If the judge corrects you, rather than a scowl, a polite smile will not lose you any points.
If a witness gets the better of you, instead of being belligerent, there are occasions where a smile and “quite so” are a better response.
Training in the art of public speaking is a great investment when preparing for life at the bar. Engaging in the performing arts as an actor encourages us to project our voice. To do so we do not need to shout, nor to speak loudly. But the art of projecting one’s voice requires training and practice so that the person furthest from you can still hear you clearly. In such a case the judge is likely to also hear you clearly.
Do not think that microphones in the Court are there to hide incompetence at public speaking. More often than not they are there for the sole purpose of recording to transcript what has been said. Thus they do not provide any assistance to the incompetent mumbler. And speaking into a microphone intended as an aid in such circumstances, takes a particular skill in itself. How far does one stand from the microphone, how does one adjust it for one’s height, does one speak into it, across it or simply ignore it? These are all relevant questions which training will allow us to answer without thinking, when the need arises.
And finally, might I suggest that we can all learn from reading transcripts of our address to a Court. We can all improve at allowing the judge to speak without interruption and in turn, the judge might then permit us to speak without constantly interrupting us in mid sentence.
Many judges will interrupt, if for no other reason than to indicate that they understand a point, they disagree with it, or that it is not necessary for one to address on it. One must listen for such cues as to continue to address on a point when the judge has just told you there is no need, is a waste of time and demonstrates that you are not listening.
‘Over speaking’ is a common fault when addressing a Court. A transcript is the quickest way of seeing this reflected in front of our eyes. I have the horrors when I read how often we interrupt or are interrupted in mid sentence even though I strive to avoid doing so. I know that in normal conversation we tend to do so, or at least, we tend to unless it is our spouse who we would be interrupting. But if the judge interrupts us, how many of us have the self discipline to remain quiet until we are sure they have said what they want to, before embarking on an answer?
And these comments are not confined to addressing the Court. Cross examination is an area where counsel tend to interrupt, if for no other reason than to stop an unresponsive answer. But if the witness interrupts us, we are likely to be unforgiving of them.
When cross examining, if you are silent whilst the witness is answering, you improve your chances of absorbing what they have said. If you are properly prepared, your next question can be responsive to that answer. If you are not, your cross examination quickly loses its way, for if there is some gem that the witness reveals in their answer, you are likely to overlook or forget it, if you are already thinking of your next question. To take advantage of an unexpected answer, you must be able to hear and absorb the answer when it is given and be able to spontaneously adjust your cross examination.
This is not said to encourage advocates to ask the Court to allow them to finish what they were saying without interruption. I have heard this said in an appeal Court on one occasion when a very inexperienced barrister appeared there, for the first and, I hope, the last time. Thereafter the judges sat mute, not saying one word.
When we got up to respond, the resumption of dialogue was instantaneous and gave immediate insight into what the judges were thinking. My opponents lost an opportunity to improve their chances of success.
I know that it is easier to think on our feet if we can follow our pre-prepared train of thought. There is a skill to engaging in dialogue with the Court, a skill which I suggest is a necessary part of our Advocate’s tools. It comes with training.
That skill requires that we are adaptable to the direction the Court wants to take and be sufficiently prepared that we don’t say, “I will deal with that issue shortly”, but rather, “As your honour has raised that point, I will deal with it now”. Which answer do you think will give you more points for Advocacy?
For those aspiring to practice at the bar, learning the art of public speaking will pay long term dividends as it will improve your chances of being heard, and, thereby, the chances of your argument being accepted. When addressing a Court, we should welcome an interruption, deal with it, there and then and be prepared to and able to change the order of the subjects we were going to address on, so as to better engage in dialogue.
In this sense, the art of Advocacy encourages us to continually improve our ability to communicate effectively and efficiently.
To conclude therefore, I suggest that every advocate can improve his or her skills in communicating, be it by the written word or the oral presentation to a Court or Tribunal. As my old teacher entreated, don’t be in a hurry to respond, either in writing or when on our feet, but at the same time, be efficient in the completion of our task.
Brian Morgan
