ADVOCACY THE JUDGE’S VIEW SERIES 4: PART 1: THE DEADLY SINS OF ORAL ADVOCATES: DON’T BE CONFUSING OR BORING (PLUS A RECAP OF THE PREVIOUS SERIES)
After a break of eight months I am starting a new series featuring the guidance the judges give to advocates. Here I am encouraging you to read The deadly sins of oral advocates: Part One, in the Lawyers Weekly. A report by Jerome Doraisamy of a presentation given by Justice Judith Kelly of the Supreme Court of the Northern Territory to the Australian Bar Association Conference. Remember these are edited highlights, the aim is to encourage you to read the original.
“It is a truth universally acknowledged that as soon as someone is appointed to the bench, she or he begins suffering from the delusion that she’s a much better advocate than any of the current crop of advocates now appearing before the courts.”
The judge identified three basic failures:
- Failure to prepare properly.
- Failure to organise properly.
- Failure to think through the purpose of what is to be achieved.
“BREVITY IS GOOD”
Eliciting the evidence is a big part of the case. Disorganisation here leads to the subsidiary sins of being boring, confusing, annoying and wasting time.
THE MORE GENERAL SIN: “FORGETTING YOU ARE TALKING TO A HUMAN BEING”
Also taking up time by unnecessary details “frustrating the listener, interrupting the story and breaking your audience’s attention”.
THE PREVIOUS SERIES
This may a good point to recap on the previous series.
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.”
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
The 10th post in the series was a review of the previous 9. I selected a key point from Mr Justice Binnie.
“Finally, I want to go back and pick up my first point about John Sopinka’s attitude. Attitude is everything in advocacy. No matter how disastrously you think the hearing is unfolding, be steadfast and defiant. Don’t crumple. Don’t take up the posture of a whipped cur, signalling by your body language that you wish you were somewhere else. You don’t know who your friends are on the bench or how many they are in number. If you let yourself down you let them down as well, and above all you let down your client. If at the conclusion of an apparently disastrous hearing you can walk out of there with flags flying and your chins up, then in my book you can say that you arc an advocate worthy of the John Sopinka tradition.”
Lord Justice Irwin gives clear advice.
“The excessively long and complex skeleton argument is a curse. You know who you are. My clerk writes your name in the black book, held in the archive of the Junior Ganymede Club.”
“Then, there is a special ring in hell for the advocate who stands up at 10:31 with the words “My Lady, My Lords, I have prepared a Speaking Note which is on the bench”
This looks at the advice given by Fleur Kingham, President of the Land Court of Queensland.
“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”
3. THERE IS NO MIRACULOUS OSMOTIC PROCESS BY WHICH YOUR TRIBUNAL WILL ABSORB EVERYTHING YOU HAVE PUT BEFORE IT
Here we looked at the work Judge Swami Raghaven in the Law Society Advocacy Section “Top tips for tribunal advocacy”.
“Don’t assume that the tribunal will by some miraculous osmotic process absorb all the materials and authorities you’ve put before it. You need to draw out the relevant facts that you’re inviting the tribunal to find from the evidence it has heard. When it comes to case law, you need to clearly articulate what legal propositions you’re asking the tribunal to draw.”
This was a few from a Bench Clerk in New Zealand, 20 points after spending 12 years watching advocates in action.
- ” Remember that someone is always watching you wherever you are in the building and word quickly gets around. It should not surprise you to know that the clerk in your court does discuss you with the Magistrate/Judge before they enter the court. Make sure that you leave a favourable impression, which leads me to tip #2.”
” Use your manners. With EVERYONE. Mind your Ps and Qs with court staff, police, other lawyers and most of all your clients.”
An excuse, really, to consider Stephen Sedley’s Law and the Whirligig of Time
“Any Advocate can get it right. It just takes application, learning and judgment. What requires inspiration and an occasional touch of genius is getting it hideously and irretrievably wrong: not just losing, which call advocates do half the time, but screwing up big time
This was review of a book by retired District Judge Neil Hickman. There are many choice quotes, one of my favourite is a question asked in a fast track trial.
“Are the contents of your statement true?”
“No – it’s what the man from the solicitors said I should say – but it isn’t true”.
(That turned out to be a very, very, short trial.)
Here we looked at an interview with Lady Justice Macur
When asked about common mistakes that advocates make Lady Macur states:
“I used to see an unfortunate trait in advocates of not asking questions of witnesses in an acceptable form, and dressing up quite long-winded statements of principle as a question by just tagging on at the end ‘do you agree’ or ‘isn’t that so’ etc. “
This was based on the speech by Lady Justice Rafferty to the Criminal Law Review Conference. One of the matters she spoke on was archaic syntax, the “passive voice”. She was in favour of brevity.
“In a skeleton argument I can read about the learned judge up to sixty times. Speaking entirely for myself life will still hold meaning for me if I am referred to as the judge not the learned judge.
This was a review of the guidance given by Federal Judge Richard G Kopf in his blog Hercules and the Umpire.
“It would be nice if you gave me a concise and accurate statement of the facts backed up by citations to the record and addressed to the elements of the case. The Court of Appeals does not give a rat’s ass about what I think of the law, but it does care (at least a little) what I think of the facts. Comprende?”
10. WELL HERE WE ARE
There are dozens (if not hundreds) of pearls of wisdom from these judges. I have to choose one to end this series. I am taking this from the interview with Lady Justice Macur.