ADVOCACY: THE JUDGE’S VIEW X: 10 KEY POINTS FROM AROUND THE WORLD
This is the last in the series of Advocacy the Judge’s view. We have looked at advice given by judges from around the world. Here I select a key point from each.
1. ADVICE FROM CANADA – MANNERS MATTER
It is difficult to select any one point from the talk given by Mr Justice Joseph W. Quinn. However this has been an almost universal theme of the advice given by judges.
“Lord Moulton, a great English jurist, stated that the quality and height of our civilization will be measured against manners and etiquette. The same, I think, is true of our legal system”
2. ADVICE FROM AUSTRALIA – SIMPLICITY HELPS IN THE TASK OF PERSUASION
The importance of preparation was a key element in talk given by the Hon Justice M J Beazley AO in Sydney in March 2013: “Advocacy: A view from the bench”
“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.”
3. BACK TO CANADA – LISTEN TO THE JUDGE
Judge Carol Baird Ellan collected the views of 12 of her colleagues in giving an address to the CLEBC Advocacy Conference in 2001: Advocacy in Provincial Court: A view from the Bench.
“Bear in mind that a judge-alone trial requires persuasion of the judge who is presiding. If the judge asks a question, listen and respond. These are your biggest clues to how you are doing, and not generally attempts on the judge’s part to thwart you or interfere in the conduct of your case.”
4. WRITTEN ADVOCACY – ADVICE FROM QUEENSLAND
Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013in the Journal of the Bar Association of Queensland.
“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.”
5. BE CANDID WITH THE COURT – PROBLEM SOLVING IN UTAH
J. Frederic Voros, jr for the Utah State Bar: To Persuade a Judge, Think Like a Judge.
“You will not help your cause by exaggerating the record or stretching precedent. Inevitably, some facts and cases will not support your position. Don’t tiptoe around these or bury them in footnotes; show us how to deal with them. In particular, appellants who ignore unfriendly facts or precedents in their opening brief (1) lose credibility with the court, (2) imply that the omitted facts or precedents are devastating, and (3) present a generous target for opposing counsel”
6. CLOSER TO HOME: THE FALLIBLE NATURE OF HUMAN MEMORY
Mr Justice Mostyn “The Craft of Judging and Legal Reasoning” shows that an advocate will have to have a working knowledge of the fallible nature of memory.
“One of Lord Bingham’s essays in “The Business of Judging” is “The Judge as Juror: The Judicial Interpretation of Factual Issues”. There he quotes an extra-curial speech by Lord Justice Browne, who makes the same argument as Leggatt J, but more laconically:
“The human capacity for honestly believing something which bears no relation to what actually happened is unlimited.”
7. MR JUSTICE BURTON – WITNESS STATEMENTS ARE NOT A VEHICLE FOR ARGUMENT
“The view from the Bench (II)”, part of a series of articles by Elizabeth Medliss in the New Law Journal. This series discusses views expressed by Mr Justice Burton at an event at Mischon de Reya’s offices.
“Lawyers want the statements to capture all the relevant facts in a way which is persuasive and compelling to a judge. In an attempt to achieve this, it has become common for parties to serve long, adversarial witness statements which often amount to thinly veiled advocacy. Whether judges view such witness statements as helpful or appropriate is another matter.”
8. TWO JUDGES REMIND YOU: AS AN ADVOCATE – CREDIBILITY IS ALL YOU HAVE
Sidney Butcher in the ABA publication “Views from the Bench: Tips for Young Lawyers on How to Make a Good Impression.” The Honorable Lynne Stewart, a District Court Judge and the Honourable Julie Robinson a Federal Court Judge give guidance to young lawyers.
“Let your argument speak for you. Do not seek to embarrass opposing counsel or go in for the “kill.” Consider letting opposing counsel know of a case that clearly supports your position prior to presentation in court. Alternatively, ask to approach the judge with opposing counsel and talk off the record. It saves time and strengthens your credibility with the judge.”
9. DRESS FOR COURT: APPEARANCE IS IMPORTANT
A number of judges stressed this point. Anyone who doubts that should read the article by Roanoke City Circuit Judge Clifford R Weckstein in Ad-dress-ing Counsel written in 2006. This is taken from one of the footnotes:
“Use the trial lawyer’s rule: ‘Dress so appropriately for the circumstance and your role in it, that no one especially notices your clothing. They focus on you and your message.’”
10. BE AWARE OF WELL PADDED VANITY
The Hon Justice Pat Keane (in the Journal of the Bar Association of Queensland) was wary of agressive posturing and the way in which advocates as described by a PR machine:
“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.”
THE JUDGE’S VIEW SERIES
- Things lawyers do to annoy judges: edited highlights
- Advocacy – the judge’s view II: Useful guidance from Down Under.
- Advocacy – the judge’s view III: More Guidance from Canada
- Advocacy – the judge’s view IV – “Avoid Bullshit, smoke and mirrors” (oh and beware “well padded vanity”).
- Advocacy – the judge’s view V: to persuade a judge think like a judge.
- Advocacy – the judge’s view VI: How a judge assesses witness evidence
- Advocacy – the judge’s view VII: Witness statements – short and sweet is best.
- Advocacy – the judge’s view VIII: “Credibility is all you have”.
- Advocacy – the judge’s view IX : What you wear matters.