ADVOCACY – THE JUDGE'S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write about advocacy? This is important because in civil cases it is judges that will decide the case. It is important that litigators know as much as possible about the way judges approach these issues. In looking at this we are not confined to the UK. The previous post contained guidance from a Canadian judge. In this post we go to Australia. (Bear in mind that we are dealing with different jurisdictions, however the similarities are obvious).
In civil procedure (and I suspect in many other areas) advocacy is not just about what goes on in court. This is shown clearly in the talk given by the Hon Justice M J Beazley AO in Sydney in March 2013: “Advocacy: A view from the bench” It is significant how much emphasis is placed on preparation: pleadings, evidence and written submissions, rather than oratory.
“The principal task of an advocate is to persuade. The principal purpose of written advocacy is, therefore, to persuade. If the author is to persuade, the written submissions must be useful to the audience to whom they are directed – the judges who are to decide the case. If the submissions are to be useful to the judges, the author must convey the requisite information clearly, concisely, accurately and comprehensively.
ADVOCACY IS ABOUT PREPARATION
Any civil litigator has to consider issues of advocacy from the moment the first letter is written. Just spend two hours in court watching your client being cross-examined on why the evidence given now is different from the letter of claim (or letter of response). It will be clear:
- Advocacy, in terms of how the case will be presented at trial, needs to be considered from the outset.
- The greatest advocate, or orator, cannot make a major impact on a case that has not been properly prepared. Evidence cannot be given for witnesses who are not there.
ADVOCACY IS NOT THE SAME AS ORATORY
The central point of the judge’s talk is that advocacy is about preparation.
“Over the years I have been asked to give many presentations on advocacy, as have my colleagues. Increasingly, the title that is allocated is “Advocacy: A view from the bench”. To my mind, this is quite telling. Once upon a time, these speeches were given by the great advocates of the day. However, that was in the days when the oral tradition of advocacy reigned and, even more particularly, the oral tradition of jury advocacy was the pinnacle of the art.”
JUST AND CHEAP
A dominant theme of the talk is that litigation has to be “just, quick and cheap”. In Australia the “overriding objective” is put in statutory form with the courts looking to achieve the:
“just resolution of disputes … quickly, inexpensively and efficiently as possible”.
SO WHAT DOES THIS MEAN FOR ADVOCACY IN CIVIL PROCEEDINGS?
“13 In the past, when the great orators have spoken about advocacy they did so in terms of Art, the Art of Advocacy being a frequently used term. Students of the subject were looking for ways to be brilliant, or at least to appear brilliant. Thus, there was much talk not only about the Art of Advocacy, but it came with a subtext: the Art of the Advocate was the Art of Persuasion.
14 In more recent times, with the advent of written submissions and the fiscal implications for the Courts in having litigation before it which limps along in a mire of inefficiency, two messages have become predominant.
• Advocates need to be “clear, concise, accurate and comprehensive”;
• Litigation is process-driven and advocates must have an eye to the central purpose of the process (the Civil Procedure Act, s 56).
15 All of these points were effectively captured by Justice Hayne in his 2007 presentation to the Victorian Bar where his Honour said:
“The principal task of an advocate is to persuade. The principal purpose of written advocacy is, therefore, to persuade. If the author is to persuade, the written submissions must be useful to the audience to whom they are directed – the judges who are to decide the case. If the submissions are to be useful to the judges, the author must convey the requisite information clearly, concisely, accurately and comprehensively.”
16 The end result should be analytical, structured and referenced.
The judge gives some examples of advocates, in their written submissions in particular, failing to assist the court. The respondent’s submissions were simply that a ground of appeal was nonsense
“However, the Court cannot be as dismissive. We have a very heavy obligation to give reasons for our decision. The court is entitled to and expects the assistance of the advocate to know why the point is good or bad; why the trial judge was correct or not correct.”
A LETTER TO THE PARTIES
The judge gives an example of a letter a judge wrote to the parties:
“Justice Sackville made this point in the most compelling way in the C7 litigation (Seven Network Ltd v News Ltd  FCA 1062). He wrote to the parties in the following terms:
“At the risk of stating the obvious, part of the art of advocacy is to make it easy for the decision-maker to understand what issues need to be resolved and to explain clearly, cogently and concisely how and why the crucial issues should be resolved in favour of a particular party. To leave the Judge, if not completely at large, then without a reliable working compass in a vast sea of factual material, is not a technique calculated to advance a party’s case. This, I hasten to say, is not because any Judge would consciously penalise a party by reason of the bulk of its submissions or the manner in which its arguments are presented. It is because the cogency and persuasiveness of submissions depends on the ability of the Judge to follow them – and to isolate the critical legal and factual issues upon which a case is likely to turn.”
THE ROLE OF THE SOLICITOR IN LITIGATION
It is telling that, in a talk about advocacy, the judge deals with the role of the solicitor
“Given what I like to refer to as the executive nature of modern litigation, the role of the solicitor in litigation has assumed great importance. The central role of the solicitor in the organisation and preparation of the case finds recognition:”
THE ROLE OF PLEADINGS
Those tactical and forensic decisions commence with the pleadings. The emphasis placed upon the issues raised by the T- pleadings cannot be stressed enough. Cases that are not pleaded properly usually do not succeed.
“33 In Edingbay Pty Ltd v Horwath (Vic) Pty Ltd  VSC 317 Hansen J said, at :
“The role and importance of the pleadings in identifying the issues which are in dispute and which require a determination is critical, and all the more so in massive litigation involving huge costs of the type which these parties have engaged in. It would conduce to mischief and possible scandal in my view if the true role of pleadings in the fair administration of justice was to be disregarded in circumstances such as the present.”
34 In Patrick v Capital Finance Pty Ltd  FCA 206 at  Tamberlin J made the following points:
• The issues in the case are defined in the pleadings;
• Decisions have to be made progressively through the preparation of the case as to:
o The documentary evidence that is required;
o The oral evidence that needs to be called;
o Whether to cross-examine witnesses and if so the extent of the cross-examination;
o Late amendments (especially at the close of pleadings) may cause substantial injustice and more likely than not will not be allowed.
The judge goes on to state:
“The issues: As I have already explained, everything revolves around the issues that are pleaded. Good pleading is fundamental. Almost inevitably in modern day litigation, parties are bound by the pleadings”
The judge emphasises the importance of evidence. That there (as in the UK) the days of trial by ambush are over.
“That is important in terms of preparation. It means that the case has to be thought through thoroughly, well before the case comes on for trial.”
THE JUDGE’S CONCLUSIONS
“47 The message that I wish to leave you with is that good advocacy relies on:
• having a well organised case based on clearly framed issues;
• which is supported by evidence; • that the case is underpinned by legal authority; and
• that there has been compliance with procedural rules prescribed by the Court’s Practice Notes, the Uniform Civil Procedure Rules 2005 and the Civil Procedure Act.
48 When advocacy is considered in these terms, the relationship between thorough preparation and good advocacy is clear.”
On judges and advocacy
On written submissions
- Speculative skeleton arguments are of no assistance.
- Picking up bad citations: & skeleton arguments – still too long.
- Skeleton arguments: do them properly or you won’t get paid (the triquel).
- Skeleton arguments: if you don’t do them properly you won’t get paid.
- Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions..
- Skeleton arguments more examples online: You can have Cotton if you can’t have silk.
- Drafting skeleton arguments and notices of appeal: more examples online.