ADVOCACY: THE JUDGE’S VIEW SERIES 2 PART 10: EDITED HIGHLIGHTS: AROUND THE WORLD IN 147 DAYS
I never planned to write a second series on advice from judges on advocacy. It started with an article from Master Cook and developed from there.This led us to garner advice from judges around the world. Here are the edited highlights from the second series.
Here we looked at an article from Master Cook “Advocacy before the QB Masters – Some Do’s and Dont’s”. One point the Master made was timing:
“I am constantly astounded by the fact that even very experienced advocates seem to possess no concept of time when they begin speaking”
The second in the series took us to Washington looking at A detailed article by Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBridet called “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers”.
One key point here was the need to be accurate, fair and even-handed when presenting your case.
“A persuasive brief is also even-handed in its presentation of relevant facts and controlling legal principles. A caustic tone or needlessly antagonistic rhetoric, on the other hand, detracts from a briefs persuasiveness. If you have a truly compelling argument, there is no need to disparage your opponent or your opponents’ arguments in order to prevail… very little is added by using terms like “preposterous,” “absurd,” or “silly.”
The third unearthed a veritable goldmine of a paper written in 2004, Gray’s Inn prepared a paper “Skeleton Arguments: A Practitioners’ Guide“.
“Be brief and to the point. Aim for simplicity in everything—concept, language, style, presentation. Concrete is preferable to abstract. If something seems unduly complex, divide and conquer: break it down. Less makes more impact than more. Use short sentences, short paragraphs, short submissions”
4. THREATENING YOUR OPPONENT WITH A PROCTOLOGY EXAMINATION AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
Back to the United States here, in the Southern District of New York, looking at the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC. 70 F, Supp 2D 415) where the judge had grounds to comment on the behaviour of the advocates.
“Hardball is bad advocacy.”… (“Incivility is counterproductive. Lawyers should be civil in litigation not only because it is the right way to practice law which it is but also because lawyers hurt their clients and themselves by being mean-spirited, nasty, rude, and generally uncooperative with their adversaries and the court.”);… (“Experienced counsel know that the lawyer who maintains a professional style is the more effective advocate.”).”
San Franciso is 2,905 miles away from New York. We travelled there next in looking at an interview with judge Curtis Carnow
“… I should say that as a lawyer I spent a lot of time gossiping about judges and complaining and I think that’s just part of the job description. By the same token, judges talk about lawyers all the time.”
“And so if you’re in one judge’s courtroom, you should probably imagine that all the other judges in the courthouse are watching through one-way mirrors or something like that.”
I moved a lot closer to home in looking at a Life of Crime by retired High Court Judge Sir Harry Ognall. The title of the book is deceptive, it has a chapter giving advice to advocates which is of universal interest. There is a whole host of northern good sense here.
“A youngster who recognizes his or her weaknesses is an improver. Learn from your mistakes”.
However we went even further north to look at the Lord President’s address to the Faculty of Advocates in Scotland. Again there is much for the advocate to think about.
“To conclude, the court expects assistance from counsel in all matters on which there is to be dialogue, both written and oral, between the court and parties. That assistance takes the form of concise and focussed examinations of witnesses at first instance, and the timeous delivery of legally sound and well-prepared pleadings and submissions at all levels. That is what makes a good and effective advocate in the eyes of the court. When I passed advocate, almost 41 years ago, the Lord Ordinary swearing me – and Lord Malcolm and Lady Clark – in was Lord Ross. He said to us that advocacy was 90% preparation and 10% skill. I agree with that, but, as he also wisely said, it is the combination of both that will tilt the narrow case in your favour”
We then travelled the 11,352 miles from Scotland to New Zealand. Justice Susan Glazebrook spoke on “Effective Written Submissions”
“They will endure long after your brilliant or not so brilliant oral advocacy has faded. They will often be more important in that post-hearing process than the judges’ dim memory of the oral hearing, their more or less coherent notes taken at the hearing and the rather chaotic and often disjointed transcript of the hearing”
From New Zealand to Canada where Mr Justice Binnie spoke on a Survivor’s Guide to Advocacy in the Supreme Court. Advice for the advocacy in dealing with hostile questions in court.
“It’s at moments like this that you should close your eyes and think of John Sopinka standing on the deck as the icebergs gathered at the Sinclair Stevens . Inquiry. Don’t try to please the questioner at the expense of weakening your argument. You don’t know at that stage how many of the judges are silently agreeing with you. Sometimes hostile fire questions provoke counter-fire from other judges, in which case, agreeably from your perspective, the hostile questioner may be engulfed in back-fire.”
10: DON’T CRUMBLE
For the 10th point I am staying in Canada, indeed staying with Mr Justice Binnie