ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 2: MAXIMISING YOUR IMPACT AS AN ADVOCATE: REPUTATION IS ALL

In the second of this series we are going to Australia. More accurately to Queensland to look at the advice given by Fleur Kingham, President of the Land Court of Queensland.  The lecture was given in the QLS Modern Advocate Lectures Series in March 2017. Remember these are selected highlights. These are no substitute for reading the original.  (If there are problems with this link you can watch the whole lecture on YouTube – here).

“How you behave towards your colleagues in Court reveals much about your ethics and your professionalism. So too does the tone of your correspondence. The self-serving letter is rarely tactful and the motivation usually apparent. If your tone is discourteous and inflammatory, that will tend to reflect on you, not the person to whom it is addressed”

ELIMINATE THE IRRELEVANT AND THE SUPERFLUOUS

This is a detailed analysis of the process of persuasion. As we so so often in this series the judge is keen on cutting out the superfluous.

“So a plea from the Bench – eliminate the irrelevant and the superfluous. That will be a very good start to maximising your impact as an advocate.”

HOW AN ARGUMENT IS NOT MADE

“… an argument is not made by stringing together screeds of legislation and quotations. You know how your eye scans over the reproduced section or the case extract when you read your opponent’s written submissions. I will do the same with yours. Lay out your argument bareboned. Provide the detail when, where, and if it is required”

BE CREDIBLE

“Aristotle argued an audience will more likely accept propositions put forward by a credible speaker. To appear credible, he said a speaker must display (i) practical intelligence, (ii) a virtuous character, and (iii) good will.”

REPUTATION

The judge writes in detail on the importance of reputation (and returns to this again below).

If you have graduated with a law degree it is assumed you are intelligent. But if, as a practitioner your focus is solely or even primarily on the intellectual endeavour, without regard to how you conduct yourself, you risk developing a professional reputation which will hinder, rather than enhance your success and the success of your clients.
As far as Judges are concerned, your reputation is formed by your performance in Court. What reputation do you want to earn by that performance?
Well obviously you want a reputation for frankness and honesty. In a legal discipline case, his Honour Justice of Appeal Thomas could be accused of saying the bleeding obvious when he observed: “a barrister does not lie to a Judge who relies on him for information”. Sadly, it wasn’t bleedingly obvious to the practitioner concerned.
Few practitioners earn the unenviable reputation of being dishonest but there is another reputation you should avoid developing. It sits at the borderline. It is often based on a suspicion held by a Judge, rather than certainty, and it can be just as devastating.
I mean a reputation for being “tricky”; willing to do something dishonourable for a short term advantage. These are the advocates who misrepresent the evidence or the case law. They forget to tell the Bench about adverse authorities. They don’t observe professional courtesies in their dealings with their opponents in the hope of pressing an advantage through surprise.

LISTENING TO QUESTIONS FROM THE BENCH

I want to address the assistance you give to a Judge when you are responsive to their questions; even if they come from left field and may be slightly off your track. Before her appointment to the Federal Court, Melissa Perry QC presented a very helpful paper, “Practical Speaking Skills”2 , which I commend to you.
She made the following observations, which I endorse:
 Judges are ultimately looking to Counsel to assist them with the task of reaching a decision. When they ask questions, they are looking for that assistance. They want to know how you might answer particular problems or issues which occur to the Judge. They reveal how the Judge is thinking in a provisional way, and provide an invaluable opportunity to address the issues that are worrying the Judge.
 Listen closely to questions from the bench. If you don’t understand a question, politely indicate that you are not sure that you have understood the question and ask if the Judge would mind expanding upon the question, or words to similar effect.
 Wherever possible, answer questions at the time that they are asked. If you can’t think of an answer immediately, indicate to the Judge that you would like to return to that point shortly, and remember to do so.
I could not give better advice than that. Most Judges are happy to give you time to respond. It is up to you to propose a reasonable method for considering a point

THE TONE OF YOUR CORRESPONDENCE MATTERS

What you don’t realise until you are on the Bench is just how much a Judge sees and hears. You have to assume that the Judge sees everything you do and hears everything you say in Court. If she doesn’t, her associate will, and they will talk about it when Court adjourns.
How you behave towards your colleagues in Court reveals much about your ethics and your professionalism. So too does the tone of your correspondence. The self-serving letter is rarely tactful and the motivation usually apparent. If your tone is discourteous and inflammatory, that will tend to reflect on you, not the person to whom it is addressed

THE DISPUTE IS BETWEEN THE PARTIES AND NOT THEIR LAWYERS

The dispute is between your clients, not between their representatives. In my role I expect advocates to be able to co-operate with the Court and with each other in expediting a fair hearing. I will think less of them if they cannot, or will not. My experience of an advocate in one case, will travel with them, and I will remember my prior experience when I see them next.

TREASURE YOUR REPUTATION

The judge emphasises how often judges speak between themselves in relation to the reputation of advocates.  Poor experiences are more likely to be shared.

I sometimes seek out another Judge’s opinion of an advocate if I have had a bad experience with them; or if I think I may be reacting unfairly or might have misread their motivations. The view of a respected colleague will be a powerful influence. If my colleague reports a favourable impression I will examine my own response more closely. A good report from another Judge can save me from forming a negative view too hastily.
But if my colleague reports their own negative experience with the advocate, this will strike a significant blow to the advocate’s reputation. Now, not one, but two Judges will have had and shared a bad experience and had their negative perception reinforced…and so it goes on when the next Judge makes the enquiry of one of the first two Judges.

PRACTICAL INTELLIGENCE

Practical intelligence is displayed when an advocate chooses only credible arguments to run, makes sensible and reasonable concessions and identifies pragmatic solutions that will progress resolution.

HOW TO PERSUADE

Your reputation rests on your everyday practice. How you behave as a professional, both in and out of Court reveals your respect for the forum, your opponent, your client and the Judge or jury you are trying to persuade. If you want the formula for a good report on you as an advocate this is it:
• arrive at Court well prepared.
• focus on the essentials of the argument, not on extraneous issues.
• do not mislead the Court.
• be courteous to the Court and your opponent.
• do not ambush your opponent.
• do not waste the Court’s time
If you present that way, you will maximise your impact as a credible advocate whose arguments are worthy of careful consideration.