Much has been written about the art of advocacy. The expression has been used in several book titles, but is advocacy an art?
While I’m the first to admit that advocacy is a performance and almost all advocates (including myself), if we’re honest, are either “budding, established or frustrated thespians”, advocacy is more than an art.
It’s also a craft. This is because it’s a skill; a learned ability, acquired by regular practice.
Last year I presented a seminar on family advocacy. I wanted to get the message across about the importance of preparation. To use a cliché, “failing to prepare is preparing to fail”.
Members of the public often imagine that those of us who appear in court have ‘short’ days. After all, it rarely begins before 10.30am and often ends at 4.30pm.
However, the uninitiated do not always appreciate that every hour spent in court often involved two to four hours’ preparation (depending on the complexity of the case).
For the initiated, a well-prepared case is plainly obvious. It flows, there’s a sense of direction and less court time is necessary.
Try explaining that to the legal aid agency, whose views on preparation and the remuneration for doing so bear no resemblance to the quality standard we should all be seeking to achieve.
Preparing for a family children’s proceedings case
The following tips are based on the example of a care proceedings case but apply in other family advocacy settings too.
Read the documents
You should familiarise yourself with the:
- threshold document – you need to do this to know your case
- schedule of allegations and responses (if relevant to the case)
- local authority final evidence/care plan
- client's statement/evidence/comments
- parties' statements
- expert reports
- guardian's analysis
Glance through chronology and make sure it’s accurate – this will be a good reference document during the case.
Identify the issues
What is the local authority seeking to prove?
What are you seeking to prove/challenge?
Dramatis personae
In cases involving a large number of witnesses, this is an invaluable document. It will help you and the judge see at a glance the names and roles of each witness.
Consider the facts and the law
Make sure you’re up to date with the legal position that’s the framework for your presentation.
Analyse the evidence
For complicated cases, my preference is to prepare schedules for all relevant topics so you can identify the relevant facts and where to find them at a glance.
Protocol documentation
This includes:
- case summary
- chronology
- statement of issues (opening note), prepared by applicant local authority
- position statement/skeleton arguments prepared by all parties
Examining witnesses
My preference is to prepare in table form headline topics, questions to be asked, reference to court bundle and columns for response and comment.
Obviously this will need to be kept under constant review throughout the trial. It may need to be reduced, increased or varied depending on the oral evidence that emerges, but it’s a starting point without which any advocate would struggle.
Always remember to adapt your style according to the needs of the case. Very often, a combative style will cause a witness to retreat and you’ll achieve nothing.
Trial advocacy
Performance
Family advocacy does not generally resemble the same theatre production as does criminal advocacy.
In the crown court, the audience is a jury of 12 men and women “good and true” as opposed to an experienced judge who’s probably more qualified than you, more knowledgeable and experienced in the type of case you’re presenting.
The judge and the jury will want you to cut to the chase.
Conduct
Know and observe your professional conduct rules.
Be on time, courteous and well presented. Maintain eye contact, speak clearly and concisely and have good language skills.
Maintain self-control, have integrity and never mislead the court.
Examination in chief
Unlike in a criminal case, most evidence is documentary.
Examination in chief should be succinct and only deal with inaccuracies in evidence or recent developments not included in the documentary evidence.
Do not ask leading questions.
Re-examination
Re-examination is an opportunity to ‘tidy up’ your client’s evidence. But remember it must only address matters asked in cross-examination – it's not a chance to introduce fresh evidence.
Cross-examination
Know where you’re going and what you’re seeking to elicit.
Do you need to ask a question? Could you establish the fact another way, for example in the agreed facts or a formal record, such as a medical record?
Ask leading questions.
I can remember, when I began my career, reading a book in which David Napley had referred to the well-known saying that an advocate “should never ask a question to which he/she doesn’t know the answer”.
In an ideal world, I agree, but the world is not ideal. Sometimes it’s necessary.
However, think carefully about the questions you want to ask and avoid asking the obvious.
Question: “How many post-mortems have you performed on a dead person?”
Answer: “Well, all of them.”
In front of a jury, this would be mildly amusing; in front of a family judge, less so!
The judge would probably reflect on the saying attributed to Abraham Lincoln: “Better to remain silent and be thought a fool than to speak and to remove all doubt!”