Advocacy: The View from the Bench (2013)

It occurs to me that the topic of my address might be a little misleading. As someone who has been a judge for only eight years, and was an advocate for twenty-seven years before that, my view from the bench is still very much framed or shaped by my experience as an advocate.

In the thirty-five year period that I have been involved in the practice of the law, large changes have taken place to the dynamics that drive the conduct of advocacy in our Courts.

Culturally and structurally, the example of the United States has affected the practices of the legal profession, and of the Courts, just as they have influenced our economic and social life more generally.

But while there has been great change, we have succeeded in retaining a central feature of our system of administration of justice which distinguishes us from the United States. That feature is the notion that lawyers are officers of the Court and that as such, their first duty is to the Court and, through the Court, to the administration of justice.

In the highly successful television program “Rake”, the protagonist Cleaver Green of Counsel, speaking of the work of a barrister, says: “It’s all bullshit, mate; it’s just smoke and mirrors.”

He sounds entirely like the cynical lawyers of American legal TV dramas. And I suppose we all know some hard-bitten cynics who do take this view of the administration of justice. But happily, I do not think that it is a view which characterises the Australian legal profession or the Bench.

Only someone who doesn’t actually practise law could think that Cleaver Green’s attitude is representative of the legal profession in Australia.

Producers of popular television programs and journalists, who wear their world weary cynicism as a badge of honour, are, of course, free to say what they like. In doing so, they are unconstrained by the discipline imposed uniquely on lawyers by the pressure of argument in open court where error and hyperbole are quickly corrected. Actually doing the business is important to an understanding of what it reveals about those who are doing the business.

There is a story about Talleyrand, the great survivor of the French Revolution, which illustrates my point.

One of the five-man Directory which ruled post-revolutionary France before the coup which brought Napoleon to power, was Louis-Marie de la Reveillière-Lépaux. He was an intellectual who had founded a new religion which he called “theophilanthropy”. He gave a public lecture on his new religion which was attended by Talleyrand. Afterwards, Talleyrand said to him:

“… I have just one observation to make to you. Jesus Christ, in order to found his religion, was crucified and rose from the dead. You should try to do the same.”

And so I am confident that you, as people who are actually trying to do the business, do think about what you do as something in which duty is more important than self-promotion and that you are not tempted to think that a failure to do your duty by the system does not really matter because the system “is all smoke and mirrors”. That, after all, is why you are at this conference.

Instead of the cynicism of Cleaver Green, 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

While I was at the Bar, I acted on a number of occasions for and against litigants from the USA. On most occasions, the American client was represented by an in-house lawyer. Invariably, at the end of each case, the in-house lawyer for the client would comment that they were very impressed with the civility which prevailed in our courts, not because it was quaint and olde-worlde, but because it meant that the solution of the legal problem at hand was plainly the sole focus of the proceeding, and the civility of the debate meant that arriving at the best solution was more likely.

The civility which prevails in our courts is an enduring outward sign of the co-operative view of the administration of justice in which the advocates for each side act as officers of the Court, duty-bound to assist it. This is a radically different model from a system in which advocates may engage in any conduct, it seems, short of an actual crime, to advance the client’s interests.

Sir Nigel Bowen, at the foundation of the Federal Court in the mid-1970s, stated that his ambition for the Court was that it should be a Court of “excellence, innovation and courtesy”.

It must have struck many lay people at the time as odd that a judge would think to express the hope that a court should be courteous: surely it should go without saying that a court should be courteous.

While that might be so now, it was not necessarily so when Sir Nigel was speaking.

I can certainly vouch from my own experience as a fledgling lawyer in the 1970s that the Courts were sometimes unpleasant places to appear for advocates.

In those days, of course, they were universally presided over by men. These men were usually very angry — about something, which usually eluded everyone else. Those courts  were occasionally so unpleasant as to put one in mind of the Royal Navy of Nelson’s era, described by Winston Churchill as a place of “Rum, sodomy and the lash!”

That, happily, has certainly changed. The increasing numbers in which women have taken their place on the bench has obviously been an important influence for the good.

But even in those somewhat more fraught times, judges were conscious that the transparency and rationality of judicial decision-making processes were values of the highest importance. That judicial decisions are made by a disinterested person, on the basis of evidence and arguments fully and fairly ventilated in open court, is essential to the maintenance of public confidence.

And it is now almost universally acknowledged in the superior courts of the Commonwealth that civility on the part of the judges is good policy because the performance of the legal profession is unlikely to be at its best or most helpful if it is being hectored by the bench.

Judges know that skilled lawyers are the most important resource available to the courts in doing justice, and we need to help them to be heard, not to make their difficult and important job even harder.

The explosion of legislation and regulations has been another important change in the dynamics of the justice system over the last four decades. The predominance of legislation as the source of law means that statutory interpretation is more the focus of the judicial function now than the judicial development of the common law. One consequence of this development is that there is less scope for the emergence of judicial figures as dominant forces in legal development.

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.

At least, that is the case in Australia. I was surprised, recently, to see a newspaper report of a serving American judge making a speaking tour to promote her autobiography. In the course of this triumphal progress, her Honour expressed the modest hope that her judicial opinions would be regarded in future decades as among the best produced by any judge of her Court.

By and large, I think that it is fair to say that in Australia our judges’ feet have generally been kept firmly on the ground by the constraints of our egalitarian democracy and an ethos of judicial modesty.

As for the history books, the best any of our judges can hope for, in terms of what people might say about us in three or four decades into the future is: “Isn’t it remarkable that he’s still sexually active.”

This morning 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”.

Trials

Thorough trial preparation has always been essential. It is even more so by reason of the technological revolution. The worst failure of which an advocate can be guilty is a lack of preparation.

From the point of view of the judge, the unprepared advocate is less than useless because of their potential to unwittingly mislead the court. That is especially so in trials where there is a large volume of documents. The greatest assistance an advocate can provide is to reduce and refine the evidence which the judge must digest to decide the case.

The abundance of documents to which critical human intelligence has not been applied before trial is one of the greatest problems for trial courts. 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.

The process of discovery has become so burdensome that it has spawned a separate industry to help lawyers cope with it. The lawyer who can marshal the crucial documents is highly valued by the judges. The best advocate ensures that the force of the documents which most strongly support the client’s case is not hidden under bushels of dross.

The second worst thing I have seen in an advocate at a trial is a refusal by Counsel for the defendant or respondent of an invitation by the Court to open his side’s case immediately after, and in response to, the plaintiff’s opening. Such a refusal can only be explicable by poor preparation. No advocate worth his or her salt would pass up the opportunity to restore the balance which you must assume has been tilted, albeit provisionally, in favour of your opponent’s case.

Mediation

Can I return to 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.

Once again, thorough preparation is essential if advice is to be clear, responsible and effective.

It may well be that some advocates, especially the younger ones, may feel that heavy involvement in mediation is dulling your forensic edge. If you do feel that your court craft needs some polishing because you aren’t getting to court as often as you would like, my advice would be to go and sit in on a criminal trial in the Supreme Court. And especially, if you are struggling with the discipline of being concise and relevant, go and watch some criminal appeals in the Court of Appeal. You will see masters of relevance in action.

Speaking parochially for a moment, it was my experience on the Court of Appeal that one of the glories of the Queensland Bar is the quality of the advocacy in criminal appeals.

Written Arguments

A great change in the dynamics of advocacy over the last three decades has been the shift towards written as opposed to oral argument, both at first instance and on appeals. When I commenced practice at the Bar in 1978, all appeals were argued entirely orally. It was only in 1979 that the Supreme Court formally advised the Bar that counsel might properly assume that the appeal judges had actually read the judgment under appeal.

The presentation of an entirely oral argument required a very special skill in identifying accurately, but concisely, the arguable errors in the decision below and then developing in a coherent way the arguments which were apt to make good the challenge to the judgment below.

For the advocate, trying to present an entirely oral argument could be a trying experience, even for experienced advocates, as they struggled to articulate their arguments coherently, and with precision.

Today, written outlines are essential to the ability of the court to cope with its workload. In this environment, an advocate who attempts to articulate an argument for the first time in oral submissions should expect an unpleasant reaction from the court. Coherence, which is obviously desirable, will be hard to achieve amidst all the shouting.

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.

This strategy was employed by the more oleaginous advocates; but it was very successful. Happily it is no longer viable.

I will now make a few brief specific points about written arguments, both at first instance and on appeal.

Point 1

A good advocate will not regard the preparation of the written outlines of argument as a mere formality or a chore which has to be done, and which is of minor significance in comparison to the oral argument. 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. The production of written argument means that a different form of preparation is necessary for the oral part of the argument. It requires that the advocate has mastered the factual material in the case, and the legal arguments involved, to such a degree that the advocate can respond concisely and precisely to questions from a Bench which has been “warmed up” by the written outlines.

In oral argument, against the background of written submissions, there is no room for the advocate to “build up speed” or to talk one’s way into the answer. But there is great scope for the counterpunch — which is the most effective form of argument — to go straight for the weak point in your opponent’s case as has been exposed in his or her written outlines.

The production of an effective written outline takes time: you must devote time to that work; you cannot hope to do it on the fly. You cannot hope to sit back in your chair and allow your eyes to roll back in your head and talk to your dictaphone.

Do not present the court with a written outline which has obviously been dictated and not revised with typos and gaps left for the solicitor to complete. The solicitor, of course, will not realise that he needs to complete the outline and will file it as you have sent it to him. In such a case, both the barrister and the solicitor should be ashamed of producing it. The lawyers should fairly expect to be ordered to pay the costs of a losing case which has been presented in this way.

At the practical level, you should expect to do at least two drafts and then leave the final draft for a day or two to let it settle in your head and on the page. This kind of process of iteration is necessary to make your argument read as simply and coherently as possible.

You may even find that you need to do more than two drafts to articulate your points as crisply as they can be expressed. Remember, it is a piece of English prose. The compelling but relaxed prose of F. Scott Fitzgerald was usually the product of 18 or 19 drafts.

One way to ensure that sufficient rigour is brought to the task is to have the outline looked at by a fresh mind which has not been contaminated by previous attachment to the case. The best advocates use their time with the lawyers assisting them to anticipate the curial interrogation process and to adjust the outline accordingly. This, of course, was the skill which made John Roberts, now Chief Justice of the US Supreme Court, famous as the most able appellate advocate of his generation.

You must resist the temptation to try to avoid moving into what Sir Anthony Mason called the “critical grey area” in the case where the difficulties abide.2 That is the area where the case will be decided. It is much better to recognize the difficulty in your case and say what you can about it when you are able to put your argument as well as it can be put, than to hope against hope that no-one else will notice.

The thing about the system is that the higher you go, the more different pairs of eyes look at the case and the less likely it is that no-one will notice the problem in your case. There is no nastier experience for an advocate than being chased around the court by several judges energized by the thrill of pursuing a problem which they think has not been identified.

Articulating your argument in writing is also a useful discipline. If you find it difficult to put your argument in writing, the most likely reason is that your side’s case is flawed. If you can’t articulate your case in two or three sentences, you will struggle to persuade others. And you should be advising your client that there is a problem.

If you have not drawn to your client’s attention a flaw in its case so as to afford the client the opportunity of resolving the case on the best available terms, your problems may not be limited to a day of less than the usual degree of job satisfaction.

Point 2

As to my second point, in cases where the issues depend on the operation of complicated legislative schemes, such as the WorkCover legislation or the Personal Injuries Proceeding Act 2002 (Qld), or taxation legislation of any kind, you should not assume that a precise elaboration of the legislative scheme for the benefit of the Court is unnecessary. You must set the context for the arguments you wish to agitate; you should not assume that the court does not need to be told of the context.

An allied point I would make here is that if the relevant statutory regime has inter-State analogues, you should not assume that the issue of present concern has not been addressed by the courts of that State.

You should make sure that you know whether or not your issue has been considered by another court. This may seem like such an elementary point that one should not have to mention it. Sadly, it is necessary to mention it.

Point 3

The efficacy of written submissions depends on each member of the court having read them before the oral argument begins. In the early days of the shift towards written submissions, barristers often formed the impression that some members of the court might not have actually read, much less comprehended, the written submissions.

Whether or not these suspicions might once have been justified, I can offer an assurance from my personal experience that this is certainly not now the case.

Nevertheless, you have to be able to provide context to your answers for those members of the Court who may be struggling to see how the answer you are making fits into the context of the case. The best way to do this is to begin your written outline with a precise and concise statement of the issue or issues on which the case turns.

Sir Owen Dixon said: “I have always thought that the clear definition of the exact question to be … decided is a most important factor.”3 Bear in mind in formulating the issues for determination on appeal the need for a precise identification of the issue. A precise identification of an issue does not necessarily mean a narrow statement of the issue.

Whether the issue should be put broadly or narrowly will depend on your assessment of the strengths and weaknesses of your case. If your strength is in a black letter legal proposition, your precise definition of the issues might be quite narrow, but if you need to appeal to broader discretionary considerations, your statement of the issues may need to be broader.

There is now a formal requirement in the Practice Directions of many courts that the issue said to arise on the appeal be identified with precision.

This requirement draws upon the greater experience with written argument in the courts of the United States. Bryan A Garner, in “A Dictionary of Modern Legal Usage”, 2nd Ed (1995) at 471, said: “[t]here is no more important point in persuasive and analytical writings — and certainly no point that is more commonly bungled – than framing the issue”. Garner says that the statement of the issue should be no more than 75 words in a format of “statement, statement, question”, or “premise, premise, conclusion”.

By way of example, one would write:

“The appellant was injured in the course of his employment. His injury was, however, suffered away from his place of work and was inflicted by a third party. Was the appellant obliged to comply with the procedural requirements of the Workers Compensation and Rehabilitation Act 2003 in order to bring an action against that third party?”

Point 4

So far as the formal presentation of written argument in a complex appeal is concerned, clarity of statement requires clarity of structure. The structure will vary depending on whether one is concerned with issues of fact or law.

Sir Owen Dixon offered an interesting insight in a letter to Lord Morton of Henryton. He said that the great risk of making a “very good argument very clearly, [is] that a critical mind reflecting upon it might get to the unexplored foundations of the case and then heaven [knows] how we should get on.”4

Of course, that also means that you and your client may be forced to confront the soft part of your case.

William of Occam, rather than St Rita, should be the patron saint of advocates. Simplicity of statement has a force all of its own.

The most frequent complaint of judges about advocates is that they run too many points.

No advocate I have seen wielded Occam’s razor with the skill of Murray Gleeson. He would always pare his case down to the propositions essential for his best argument; and he would not clutter his good argument by presenting it festooned with the distraction of less compelling arguments. This approach requires skill, courage and confidence.

Point 5

An allied problem is the excessive citation of cases, both at first instance and on appeal.

In relation to appeals the problem is particularly acute in appeals against the assessment of damages and in applications for leave to appeal against sentence. I have sat on hearings in these kinds of cases in which dozens of cases were cited as if multiple citations were a badge of merit.

It may impress solicitors and clients to show them outlines festooned with citations, but it is likely only to antagonise the bench. We are, by virtue of our self-flagellatory sense of judicial responsibility, burdened by the need to address the cases cited to us to explain why each case is unhelpful to the argument for which it is cited.

Any advocate worth his or her salt must be able to decide what is the best authority in support of a proposition of law which is part of his or her case. It is because you are expected to have that ability that you have been retained to argue the case.

Unless there is doubt as to whether that proposition is securely established, it should not be necessary to cite multiple cases. No-one should think that the argument gains force from the citation of other cases which are no more than examples of the application of the proposition.

Just as handing up ten copies of the Courier-Mail does not make the story more true.

As Lord Diplock said in Lambert v Lewis:5

“The citation of a plethora of illustrative authorities, apart from being time and cost-consuming, presents the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase.”

Point 6

My next point is concerned with appeals against findings of fact. The controlling aspect of the presentation of a written outline on appeal is an appreciation of the constraints upon a successful challenge to a finding of fact by the trial court.

You must be thoroughly familiar with the constraints which limit the scope for an appellate court to overturn a finding of fact, especially if that finding depends on an assessment of the demeanour of the witnesses at trial.

You must understand the difference between seeking to persuade an appellate court to reach a different ultimate conclusion of fact from the primary facts and seeking to persuade the court to come to different findings of primary fact, especially where questions of credibility of witnesses are involved.

If you wish to persuade the appellate court to come to a different finding of fact, you should identify and articulate with precision the particular finding of fact you are seeking to challenge. Remember that, because of the constraints that apply, the narrower the finding you need to dislodge, the less your difficulty will be. On the other hand, your challenge must not be so narrow as to leave the ultimate conclusion adequately supported by other facts.

You should show that you understand and accept the discipline of the test you are trying to satisfy. You must then marshal the bits of the evidence on which you want to rely together with, if relevant, any statements from the reasons of the trial judge which show the judge’s misappreciation of facts that are common ground, or weak or inconsistent reasoning.

It is essential that you take the time and trouble to do this in your written outline: it is very difficult to do in oral argument unless the error is so obvious that it hardly needs any demonstration at all.

Point 7

Think about whether you need to put in a written submission in reply. Don’t put in a written submission in reply just because the timetable set by the Registrar contemplates that there may be submissions in reply.

Where the appeal involves an attack on findings of fact, it is likely that there will be a need to tidy up the state of play concerning the evidence. But otherwise you may think that the best course is to reserve your response for oral argument.

Point 8

More and more often you are likely to encounter an unrepresented litigant on the other side: usually the unrepresented litigant will be an appellant. When you are opposed to an unrepresented appellant, you may think that the argument sought to be pursued is hopeless.

But you should not assume that you do not need to make as full a response as you would if the other side had legal representation.

In fact, you may need to be even more on your guard than usual. The Court may be confused about some issue raised by the litigant in person. You should ensure you clarify the position, and bear in mind that you may need to be able to do that because the litigant in person may, even with the best will in the world, confuse the court.

You should expect that the court will look to you to bring order out of chaos. 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.

You should expect that the Court will look to you to state precisely and fairly the reason why the point sought to be agitated by the litigant in person is without substance.

Point 9

Where you seek to adduce new evidence on appeal, you must ensure that your outline makes that intention clear and addresses the criteria for the admission of new evidence on appeal.

And bear in mind that, practically speaking, once you take that course, you are flagging to the court your own appreciation that the best outcome you expect for your client is a retrial. If for some reason that is not so, then you need to articulate the reasons why.

Conclusion

It will, I hope, be apparent that what I have been talking about is a collaborative process between judge and advocate. As I have said, it is essential that it should be mutually respectful. Just as the process requires a degree of judicial restraint to allow the advocates to do their job, so it requires a level of self-effacing commitment to the task on the part of the advocate.

It has been a long time since the words “self-effacing” and “American lawyer” have appeared in the same sentence. But the problem of self-promotion has spread even to the English Bar.

For some years now profiles of barristers have been published by various sets of barristers’ chambers in London. One example, which is now a few years old, emanated from Essex Court Chambers. This set evidently contains some very superior barristers indeed. Let me read to you a short sample of what they say about themselves, or what their clerks let them say about themselves.

One paragon of the English Bar is the “fierce” Andrew Hochhauser QC who “comes across as prickly”, which is apparently only a “symptom of the fact that Andrew ‘takes great pride in his work'”. He is “one of the best cross-examiners around”. He comes across “as urbane and civilized until you unleash him – then he becomes a Rottweiler”. He is said, with scant respect for the function of the judge in the cases in which he appears, to be “good for cases where you want to rough up the opposition”.

In relation to banking law, Gordon Pollock QC is described as Chambers’ “Headline grabber” and “a contender for any huge case”.

In commercial litigation generally Mr Pollock’s blurb describes him as “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.

As it happens, Mr Pollock QC was leading Counsel for the plaintiffs in the infamous Three Rivers Case [2006] EWHC 816. That case went for many years. At the end, it turned out that the case Mr Pollock was presenting had no basis. Mr Pollock was, during all this time, it seems, true to the image conveyed in his chambers profile. Justice Tomlinson observed: “Mr Gordon Pollock QC was only occasionally rude to me …”

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 selfconscious 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.

And it is because of that that the judges continue to wish you well.

Thank you for your attention.

The Hon Chief Justice Pat Keane

1. The Byers Lectures 2000-2012 Eds Perram and Pepper 2012, The Federation Press, at p 9.
2. Mason AF “Vale Sir Maurice”. Eulogy delivered at the Memorial Service for Sir Maurice Byers, St Mary’s Cathedral, Sydney, 8 February 1999. See The Byers Lectures 2000-2012, Eds Perram and Pepper (2012) The Federation Press at p 302.
3. Ayres, “Owen Dixon”, 2003 The Miegunyah Press, p 49.
4. Ayres, “Owen Dixon”, 2003 The Miegunyah Press, p 44.
5. [1982] AC 255 at 274.
6. Perram and Pepper at 298.