Sinful Oral Advocacy

When Glenn Martin and Dan O’Connor chose this topic they must have been in a dark mood.

The focus on sins reminded me of my Catholic education in the 1950s.

We were thoroughly schooled on mortal sin, on venial sin, on heaven (for those who did not sin), on purgatory (for those who sinned a little) and on hell, for those who died in a state of mortal sin. Confession was the way out for sinners.

My task appears to be to identify the venial and mortal sins in oral advocacy. I cannot offer confession as the escape. But I will talk a little about repentance and reform.

I am well placed to talk about this topic.

When people ask me what I do, I tell them that I am a consumer of justice services. My alternative description of my role is as an author of non-fiction, although at times it seems more like fiction. I like to say that I have published extensively, but have yet to get on a book club list.

I am a consumer of justice services because for the last 13 years much of my time has been spent listening to advocates who are practising oral advocacy, to the evidence that they present, and assessing arguments that are put to me. The advocacy is aimed at me, unless there is a jury there. I sit on civil cases, criminal trials, single judge appeals and Full Court appeals. So I see the whole gamut.

I hear good advocacy, average advocacy and poor advocacy. I assume, diplomatically, that standards in Queensland are higher than in South Australia, but that the same problems exist here as exist in South Australia.

I emphasise, because the focus is on sins of advocacy, that the tone of what I am going to say will be negative. This should not be allowed to conceal the fact that I hear plenty of good advocacy. Today the focus is on the poor advocacy.

So what is good advocacy? What is not good advocacy?

In posing these questions I recognise that there are different styles of advocacy, and that a person’s personality influences their style of advocacy. I am not talking about styles of advocacy.

People often say that advocacy is the art of persuasion. They are right. But a statement like that should not cause us to focus our attention exclusively on examination and cross-examination, on closing addresses, or on appeal submissions.

Advocacy covers the whole trial process from start to finish. In the case of a civil trial, it covers the pleadings through to the end of the trial. I am going to refer mainly to trial advocacy, because David Bennett QC will deal with appellate advocacy, and Justice May will deal with written advocacy.

As I said, advocacy covers the conduct of a case from start to finish.

In a civil case it includes the pleadings. Pleadings should be clear. They should identify the issues of fact and law. But all too often, as I think you know, pleadings are uninformative and even confusing. That may not be the fault of trial counsel, but it is poor advocacy.

Advocacy includes making good use of discovery, to select the truly useful and pertinent material, and to discard the rest. All too often, as you know, the judge is given too much material, too little of which is directly relevant to the case. Sometimes the judge is left to navigate his or her own way through this material, with little guidance. This can lead to wasted effort and to frustration.

In civil and criminal trials good advocacy includes presenting a case at trial that includes the necessary and helpful evidence, oral and documentary, but that discards the unnecessary and unhelpful material. Too often counsel are unwilling to be appropriately selective, and trials, both civil and criminal, get bogged down on peripheral evidence.

Civil and criminal advocacy calls for the presentation of a case in an efficient and orderly fashion. In particular, in a manner that helps the judge or jury comprehend the case. Too often I get the impression that little thought has been given to the judge or jury, too little attention paid to the arrangement and sequence of the material presented.

Advocacy calls for counsel to make sensible concessions, and to make agreements that will shorten the length of a case, when that can be done. Some counsel appear afraid to make the most sensible of concessions.

Advocacy involves the sensible use of aids to understanding such as books of key documents, tables of relevant material, diagrams and charts. Often this is overlooked, especially in civil trials in my experience.

Cross-examination is vital to our system. Good advocacy calls for cross-examination to be to the point, and to be as brief as circumstances permit. I acknowledge how difficult it can be to tell, as a case is running, whether cross-examination is achieving its end. But too often, at the end of a case, a lot of the cross-examination proves to be irrelevant.

In a civil case good advocacy calls for an address that is well organised, that really gets to grips with the issues, and that has appropriate cross-references to transcript and to exhibits. Far too often, in the address, a mass of material is thrown at the judge with hardly any cross-referencing to transcript or to exhibits, and with little link between the issues of fact and issues of law. I get the impression at times in civil trials that by the time of the address counsel think they have done their part, and it is really up to the judge from then on. They drop the lot on the judge, with an address that is little more than a reminder of what they would like the judge to do. They take to heart that old saying:

But to my mind the closing address is one of the most important parts of a case. It should involve a lot of work by the advocate.

You may be thinking, I know all that, why is he going on about it? Well the answer is that too often advocacy does not pass these tests. The profession know that these are sins of advocacy, but they sin and sin again.

I go back to pleadings in particular. I have attended many conferences and seminars involving judges. When we discuss advocacy and trial management, most judges complain about pleadings being poorly drafted. Far from the pleadings identifying issues of fact and law that will fall for decision, judges say that they put the pleadings to one side and ask counsel to identify the real issues. Pleadings are not serving their purpose. Why is this? This is failure of advocacy, and it is a persisting one.

It is even worse when one finds at the start of a trial that counsel are unable to crystallise the real issues of fact and law, even when freed from the constraints of pleadings.

A good examination-in-chief is a joy to listen to. This is an area where the general standard is reasonably good, but still, too often, judges and juries hear slow and meandering examination-in-chief. Sometimes there will be a reason for this, which I recognise will not be known to the judge. But there are occasions when it is attributable to poor advocacy.

A similar comment applies to cross-examination. Perhaps judges get out of touch with the reality of trials. But apart from complaints about pleadings, the most common complaint I hear is about excessive cross-examination on peripheral issues, and about a failure to be bold and selective, and to deal boldly with the key issues.

As I have already mentioned, it is not uncommon for closing addresses in civil cases to float above the facts. I recognise that in jury trials a different style of address is called for, and most jury addresses that I have heard have been fairly effective. But in civil cases the address should be a summary of what counsel hopes the judge will decide, with a package of evidence and law linked together through proposed findings of fact, leading to the desired conclusion. But too often a closing address is little more than a series of rhetorical flushes, with reference to the things counsel hopes the judge will find, but with no signs of close attention to the way in which the judge will get there, except in the most broad brush sense.

In civil cases not uncommonly I get the feeling that counsel have forgotten that the ultimate aim is to persuade me to make particular findings of fact that they want, that will lead to conclusions of law that they need. Some trials become an exercise in point scoring between counsel, or an exercise in rhetorical statements without reference to the persuasive effect of these statements on the judge.

The bad practices that I have identified are happening in courts around Australia. They are not rare, although I do not want to give the impression that advocacy is usually bad advocacy. But why is there as much bad advocacy as there is?

That is the real question. We know what is bad advocacy. But why is it happening? How do we change things?

I realise that sometimes counsel are briefed with insufficient time to do what needs to be done. Sometimes counsel have insufficient resources to do what should be done. I do not overlook that.

I also realise that difficulties in getting clear and reliable instructions from the client can cause what seems poor advocacy, because counsel may be unsure of the stance that counsel ultimately have to take on important factual issues. And there can be all sorts of pressures attributable to a difficult client or a difficult or inadequate instructing solicitor.

I also recognise that judges differ in what they want and expect. One judge might not be interested in material that another judge will want. And I also realise that with a jury one is never sure what they are thinking, and the style of advocacy must adjust to that.

There are reasons why sometimes advocacy cannot be as good as one would like. But as I have said, allowing for that, I think there is more poor advocacy than there should be. There is lazy advocacy, the advocate who simply rolls the arms over with no great effort. There are advocates who do not know how to prepare good pleadings. There are advocates who cannot or will not really work at the law.

There are advocates who have forgotten that advocacy is the art of persuasion. They present their case on a “take it or leave it” basis, not on a “can I help you” basis. These advocates have forgotten that the judge or jury is a consumer of the justice services that they are providing.

So how might we change this? Unless we ask that question, what is the point of a session like this? Our aim must be to encourage improvement in advocacy standards.

A lot of advocacy is learned on the job. The same applies, I suppose, to flying and to surgery. But I suspect that pilots and surgeons are less tolerant of departures from good practice than we are.

I think that we need to encourage a stronger culture within the profession of best practice in advocacy. We need to be less tolerant of poor practice. We need to develop a culture of reflection, selfassessment and improvement.

We need to speak plainly about poor advocacy.

We need, I suggest, to put more into advocacy training than we are doing. That is my first point. I know that there is a lot of work being done in advocacy training. But the evidence suggests to me that more is needed. I think that as a profession we need to consider how we will respond to the problem.

We need to see advocacy training as a life-long thing. My impression is that at present it is mainly seen as something for beginners. There is always room for improvement. The sins of advocacy are not committed only by junior barristers. My remarks apply to experienced counsel as well. Advocacy training should be required at all levels of the law.

I know that it is easy for me to say this as a judge, but if there is too much poor advocacy, we must do something about it. We have a professional responsibility in that respect.

I suggest that we should consider establishing a structured and organised system for an exchange of information between the judiciary and advocates about advocacy. It could incorporate some form of peer review. Advocates need to be told when their advocacy is poor, and why, and to be told when their advocacy is good, and why. And judges are in a good position to contribute to that process, because advocacy is aimed at them. The profession should contribute to the process also.

I recognise that there are constraints, attributable to the judicial role. At the end of a case one can hardly call the counsel into chambers and bag one of them and praise the other. But just as it should not be beyond us to devise some form of peer review for judges, it should not be beyond us to devise some form of peer review for advocates.

In short, most advocates know what is good advocacy and what is bad advocacy. Most advocates are doing their best. But there are some who have forgotten what is bad advocacy, and some who do not care. We have the responsibility to do something about that.

We know that good advocacy can be learned, and that it requires constant effort.

Surely we can create a professional culture that calls for advocates to reflect on their performance and to improve it. If we do, we can make some progress.

I look forward to hearing your views on my assessment of the sins of advocacy, and in particular your views on how we might improve standards of oral advocacy. That, I suggest, is the real issue.