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What is advocacy?

In the context of litigation, advocacy is an attempt to persuade a Court or Tribunal to reach a conclusion tethered to the best interests of your client.

Advocacy exists at all levels of litigation and in most if not every step which is taken in a case. The first experience of advocacy might be in persuading a registry employee to stamp a document (although perhaps this rite of passage is less applicable in the age of the online registry).

Advocacy is not something that happens only in the courtroom. Think of correspondence as advocacy; If you make a suggestion to an opposing party in a letter – that is advocacy. If you write a letter of advice to a client seeking specific instructions – that is advocacy.

Advocacy in the courtroom

Less is more. Brevity in submissions might be the reflection of a failure to read the brief but is hopefully the result of the distillation of the essential issues. Brevity may be imposed legislatively or by practicality.

As to the latter, junior practitioners will note that in most cases, a Local Court plea should not take more than a few minutes. A Magistrate with a list of 100 matters will not welcome a lever arch folder of subjective material nor the handing up of copious case law. The Magistrate will be familiar with the sentencing issues for most matters before the Court. Find your best three or four documents (a couple of character references and perhaps a medical report if relevant). Generally, identify what you want at the start, ‘I am seeking a section ten because …’ or, if a s 10 might have the appearance of being excessively lenient without a particularly good explanation, then start with the explanation and culminate with the end result (the plea for leniency).

As to the former, and this might be less relevant to junior advocates, your submissions will likely be limited by the law itself. Rule 26.07 of the High Court Rules 2004 restricts oral submissions for applications for Special Leave to 20 minutes (and as little as five minutes in reply). Depending on the court and the significance of the matters in issue, there will be varying degrees of strictness in ‘stopwatch’ trial management where cross-examination and other aspects of oral advocacy will be curtailed. See paragraph 50 onwards of Supreme Court Practice Note SC Eq 3 as an example of limiting court time by advocates. Various practice notes and standard orders also limit written submissions by number of pages.

Top tips for appearing in court

I have given the idea of brevity its own section because of its importance. Otherwise, practitioners should note the following:

  • Don’t answer questions from the bench like a politician answers an interview in a current affairs program. You must actually answer the question – directly and with humility.
  • Generally, ‘I don’t have instructions on that, your Honour’ is not a satisfactory answer to any question, but it is something we are all guilty of. Inevitably, there will be occasions where you don’t have instructions because you have either overlooked something (we are all human) or because something has come from left field. If the judge asks a question, it is because an answer is required. If you need instructions, say so, and work out a way to get them. For example, ‘Your Honour, I do not have instructions on that issue. May I have a five-minute adjournment so that I can assist, your Honour?’.
  • Maintain standards. Gradually the formality of law is decreasing (as a visual example, today, wigs are only worn in a minority of matters). Reasonable minds may differ about whether this is generally a good idea or not, however, at some point informality becomes rudeness. Certain standards must be upheld such as:
  1. Assuming you are not counsel, and robed, wear a jacket and, for men, a tie (women can of course wear ties too!).
  2. Don’t consume anything in the courtroom other than water. The pandemic had one unfortunate result of many courtrooms ceasing to have jugs of water. If you are working in such a courtroom, feel free to bring in some bottled water. No coffee is allowed!
  3. Bow when entering or leaving the Court if the judge is on the bench and stand when addressing the Court.
  4. Don’t pack up your things until the judge is gone.

Don’t grin at your opponent after you win a case … You can high-five your client afterwards in a private conference.

  • Before calling a witness, find out, in conference, if they want to take an oath or affirmation. It is embarrassing for both you and the witness if the court officer asks which they prefer and they don’t know what it means. Confusing your witness before they are asked their first question is not a good idea.
  • Don’t tolerate judicial bullying. You are a lawyer. You are entitled to do your job. Whilst never being rude, and never losing your temper, make sure you say what you need to say and get your client’s case on the record (if nothing else but for the appeal). Sometimes this will be hard and stressful, and you will feel like giving up. In serious cases of bullying consider:
  1. Phoning a friend (if your own integrity is in issue, you may find a senior barrister is willing to come to court to protect you – and generally for free). In my view this is essential if, for example, there is a threat of a personal costs order; or
  2. Make a complaint to the Judicial Commission (but only with the benefit of a good night’s sleep and sober reflection – don’t unnecessarily make enemies for life).

Litigation necessitates robust exchanges, and you need a thick skin. Don’t accuse anyone (judges or opponents) of bullying or other misconduct lightly. Equally, try to work out where the dividing line is and act accordingly.

Don’t be a bully

A good experiment, if you get the chance, is to sit in the judge’s chair in a courtroom. You can see and hear everything. Judges don’t like the sledging of opponents. They will pick it up and it will reflect poorly on the sledger. Acting in the best interests of your client means you can’t do favours for opponents that are contrary to your client’s own interests. Some favours are legitimate. For example, if your opponent is running late, you should agree to ask the judge to stand the matter in the list pending their arrival. Also, be a gracious winner. Don’t grin at your opponent after you win a case. Retain a neutral facial expression. You can high-five your client afterwards in a private conference.

Know the rules

Acquaint yourself with rule 17 onwards of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (‘Solicitors Rules‘) or their equivalent in the Barristers Rules.

  • Don’t use Americanisms like:
  1. ‘The stand’; or
  2. ‘Plead the fifth’ (except maybe as a joke – see next point).

Only use humour with care

Many great advocates are also great comedians. Most judges have a sense of humour however a significant minority don’t. The problem with humour is you may give the appearance of cosiness with the judge, which is potentially a breach of rule 18.1 of the Solicitors Rules which prevents giving the impression you have ‘special favour with the court’. Sometimes, especially in long matters, humour has a legitimate place in easing the tension in the room. Other times, humour can be interesting and in being interesting it is easier to persuade than being boring. Humour should be mild – PG rated (as per the above – maintain standards).

Combatting nerves

Like brevity, the problem of nerves justifies its own special consideration. I have been led by very good, very experienced Senior and King’s Counsel who have been, to my observation, clearly nervous. This is something that never totally leaves you, or if it does, that is a problem (the work we do is important, it contains high stakes, and we should never get too comfortable). Eventually, you want to get to a stage where you are ‘alert but not alarmed’ at being in court but you should not regard yourself as a failure if you occasionally get nervous (or even if you always get nervous).

Perhaps the worst thing about being nervous is the obvious outward signs that you are nervous. To me, a dry mouth is a giveaway, so stay hydrated or your speaking voice will not sound good. Some other tips include:

  • Arriving early (not my strong suit I am told) is a good idea. Part of nerves is the unknown. If you familiarise yourself with your surroundings, it will take the edge off.
  • Be prepared. If you know where documents are and the orders you want, you won’t flounder.
  • Get experience. Advocacy is a muscle, and like any muscle, it can go into a state of atrophy with non-use. One way to get some simple experience is to appear in simple mentions when you have the opportunity. Instead of briefing someone else or delegating it, just do it. Even handing up consent orders is valuable experience.

Remember that most mistakes can be corrected. Some can’t be corrected, and I am not encouraging sloppiness. But if you accidentally say the wrong thing in court, own up to it, chances are you will be forgiven.

If the above fails, you could always try conveyancing, being an area in which the writer is entirely in the wilderness.

Lachlan Robison is a barrister at State Chambers.