Five things …

Inspired by both the title and the taglines of the film, but with a view to greater balance than suggested by them, the writer approached a broad range of justices of the Supreme Court of Queensland, from both the Court of Appeal and the Trial Division, to ask their assistance in the identification of the five best things and the five worst things that Supreme Court justices observe about the behaviour of advocates appearing before them. 

The writer is grateful for the many replies which he received.  He is pleased to report that he found no hint of loathing in any of the responses: rather a constructive engagement in the question of what were the hallmarks of good and bad advocacy.

What follows is a distillation of the results of that informal and unscientific inquiry.  It does not represent itself as an exhaustive analysis of the views of the Supreme Court.  And in some respects it expresses the refraction of the views of the judges who responded through the prism of the writer’s own understanding.    

The final list of the five best and the five worst things reflects the writer’s assessment of the points for which there was greatest support amongst the judges who responded.  As will be seen, sometimes the best is simply the opposite of what was identified as the worst.    

First, the bad news.  Then the good news.

The five “worst things”

The list of the five worst things is:

(a)  Failing to sift the wheat from the chaff;

(b)  Fudging the hard bits;

(c)  Want of preparation;

(d)  Ineloquence; and

(e)  Discourtesy.

Failing to sift the wheat from the chaff

The poor advocate will serve up every argument of which his or her imagination can conceive, in the hope that the judge will swallow one of them.  This usually has the opposite effect to that which is sought.  The palatable becomes hidden amongst the unpalatable with the consequence that there is an increased risk of rejection of the whole dish.

One judge drew attention to the following passage from the judgment of Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 (at 556):

… the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.

The judges’ observations included the following:

• “Arguing the unarguable.”
• “As to the worst things, I nominate: … [i] taking ill-considered points, and taking too many points.  If the case is good, one contention usually wins it.  It need not be burdened with more points that have appreciably less chance of success. Self-represented litigants often hide an arguable point in a forest of unarguable contentions. There is no need for barristers to emulate them.”
• “I do not appreciate advocates who … [2] raise every possible argument, no matter how tenuous, and leave the mess for the court to sort out.”

Compare, from the list of the five best things, “the sensible concession”.

Fudging the hard bits

There are two ways in which this failing manifests itself.  First, in relation to one’s own case, in either the incompetent or deliberate failing to face up squarely to the problems in it.  Second, in relation to one’s opponent’s case, in failing to identify and respond to the fact that the other side might have something to be said in its favour.

Both manifestations reflect a head in the sand approach to advocacy.  The former manifestation involves the additional possibility that the advocate has acted unlawfully.  The 2007 Barristers Rule provides:

23. A barrister must not knowingly make a misleading statement to a court on any matter.

Compare, from the list of the five best things, “grasping the nettle”.

The judges’ observations included the following:

• “I do not appreciate advocates who … [1] deliberately or incompetently ‘fudge’ the law or the facts to favour their case.”
• “Deliberate obfuscation of the issues or of the problems in the way of their argument.”
• “As to the worst things, I nominate: [ii] not thinking about, let alone through, the other side’s potential strengths.”
• 3. The advocate who will not engage:  With the use of written submissions on appeals, in order to make the best use of time available for oral hearing, the advocates must be ready to engage in discussion about the strengths of the other side’s case and weaknesses in his or her own.  It is terrible advocacy to respond to a query from the bench about proposition Y:  “We say X.”  Everyone knows that you say X (because it’s in your written submissions and you’ve probably said it orally at least twice).  What the court wants to know is why X is to be preferred to Y. 

Want of preparation

There is no excuse for not putting in the work.  It is a breach of duty on every level.  And it is immediately obvious to the Court. 

The judges’ observations included the following:

• “5. Want of preparation: A gap in an advocate’s knowledge of the evidence or applicable law is unforgivable.  It is the worst of the worst things.  Happily I have seen almost no evidence of this fault in the cases I have heard.  I mention it because, on those rare occasions when it is manifest, it is very ugly indeed.”
• “Not knowing the order they want. “
• “Ignorance of the brief.”
• “Counsel not ready on time.”

Ineloquence

Whilst not many of us can aspire to the poetry of the words with which the great 18th Century Irish advocate, John Philpot Curran, reproved the unnecessary interruptions of the hostile Lord Chancellor in a political corruption trial:

I am aware My Lords, that truth is to be sought only by a slow and painful process.  I also know that error is, in its nature, flippant and compendious.  It hops with airy and fastidious levity over proofs and arguments, and perches on assertion, which it calls conclusion.

we ought at least be capable of refraining from active ineloquence.

Poor grammar, flawed word selection and general inability to speak sentences in the English language are distractions from the substance of the advocate’s argument which can and should be avoided.

The judges’ observations included the following:

• “Imprecise use of language.”
• “I do not appreciate advocates who …. [3] use obscure words which send court reporters, adversaries and judges scurrying to the Shorter Oxford or the Macquarie. … [5]  mumble so that aging judges have to confess their failing hearing”
• Dislikes … 3. Counsel who don’t speak loud enough to hear without having to concentrate. … 5. the verb “to conference”.  Even the Macquarie dictionary thinks “conference” is a noun.  When I learned English the verb was “to confer”.  On occasion I even “spoke” to clients.

Discourtesy

Edmund Burke wrote:

“Manners are of more importance than laws. Upon them in a great measure, the laws depend.  Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in.  They give their whole form and colour to our lives.  According to their quality, they aid morals, they supply them, or they totally destroy them.”

It is an old saying that “Courtesy costs nothing and profits everybody.”

As in life, so in the courtroom. 

The judges’ observations included the following:

• “Petulance – the “harrumph” posture when you get an unfavourable ruling.  Unpleasant behaviour to unrepresented litigants … .  Unctuousness, particularly when it’s tinged with condescension.
• “Examining crossly – to use the old saw, confusing the art of cross-examination with the technique of examining crossly, which you may have to do sometimes but less often than most people think.” 

Many judges identified “courtesy” as one of the five best things.  Their observations included the following:

•  “I appreciate advocates who …. [5] … are courteous to judges, adversaries, including self-represented litigants, witnesses, court staff and the public.”
• “Punctuality.”
• “Unfailingly pleasant demeanour.”

The five “best things”

The list of the five best things is:

(a)  Grasping the nettle;

(b)  Organisation;

(c)  The sensible concession;

(d)  Clarity;

(e)  Courage.

Grasping the nettle

The advocate’s task is only partially complete once he or she has prepared the argument which he or she wishes to present.  Still to come is the process of engagement with the Court.  This is the most significant part of the task, because it is the pointy end of the persuasive role.

• The judges’ observations speak for themselves:
• “Dealing with the difficulties – frankly and clearly describing the difficult aspects of your own argument or evidence and showing how the court can deal with them.”
• “Direct responses to questions.”
• “1. The advocate who identifies and focuses on the ‘grey area’ in the case.  The best advocacy is that which comes to grips rigorously with the pros and cons on the issues that do not clearly fall one way or the other.  It is a natural human instinct to avoid uncertainty.  The best advocates, such as Sir Maurice Byers QC, make the grey area their own.”
•  “2. The advocate who is ready and able to respond with a clear and succinct statement of the best response that can be made to counter the best points made by his or her opponent.  This ability can be acquired and developed over time; and the readiness is the product of sheer hard work.  John Roberts, the Chief Justice of the Supreme Court of the United States, was famous as counsel for spending hours of preparation identifying the best things that could be said by the other side, formulating the best response end ensuring that he was ready to counter-punch when these points were put to him.  Good (but polite) counter-punching is very effective advocacy — especially before a multi-member appellate court where the other judges may not be disposed to agree with the “counter-punchee” and may be grateful to have the, as yet non-crystalline, reasons for their non-assent to the view of the counter-punchee articulated.”
•  “Willingness to engage and depart from the prepared script.”

Organisation

The advocate who conveys the impression that he or she is going about his or her examination, cross-examination or submissions in a planned and structured way has an immediate advantage over his or her opponent who appears to be merely bumbling along asking questions or making submissions as the thought occurs.  The latter mode of behaviour is at best annoying to the Court and at worst reflective of the content of the questions and submissions.

Good organisation is an attribute which can be employed at every stage of the advocate’s task.  It is a basic skill generally requiring only common sense and diligence, but one which the Court greatly appreciates.  It saves time and makes the judge’s role much easier.

The judges’ observations included the following:

• 4. “Tell ‘em what you’re going to tell ‘em” (Harry Truman):  The sequence of a party’s submissions should be explained at the outset of argument.  It is so much easier to follow an argument when one knows how the segments fit together.  One would think that this is obvious, but it is remarkable that it is only the best advocates who follow this approach.   
• “Refined use of authority – limiting the discussion of authorities to those which really need to be considered to help resolve the legal issues in dispute – and confining the argument to the relevant parts of those decisions.”
• “Effective examination in chief – eliciting the witness’s story in his or her own words and in a clear chronological or logical sequence, with counsel being the foil for the witness rather than the centre of attention.  Dunn J used to say it was a more important skill even than good cross-examination.  I think there’s something in that as many judges say that they obtain more help in assessing a witness’s credibility from the examination in chief than from the cross-examination.  All that having been said I do enjoy a well organised destructive cross-examination!  Can I have six points?”
• “Documents.  The prior assembly and efficient production of documents in cross-examination is definitely a ‘good thing’.  It is intensely annoying if counsel refers a witness to a document but can’t produce it, or produces the wrong one, or doesn’t have a copy for the judge.

The sensible concession

Confession and avoidance can be a very effective defensive tactic.  In the political arena the immediate past Premier of this State had few peers in the exercise of this form of advocacy.  Once some part of an opponent’s argument has been conceded, it becomes difficult for the opponent to try to make anything more of it.  The opponent looks churlish and ineffective if he or she seeks to harp upon the point already conceded.     

Of course, it is not just a defensive tactic.  Making appropriate concessions is the exercise of proper forensic judgment.  Good advocates concede ground upon which they cannot prevail and try to move to ground upon which they might. 

Compare, from the list of the worst things, “failing to sift the wheat from the chaff.”

One judge observed:

• “3. The sensible concession:  Good advocacy does not consist of arguing every possible point.  A good advocate will recognise that if he or she is not likely to prevail with strong arguments A, B or C, he or she is certainly not going to prevail with weaker arguments D, E and F.  Recognising this, a good advocate will not befuddle his argument, and possibly the court, with arguments D, E and F.  Harry Gibbs said that advocacy is the art of saying what can be said for the client, and saying it well.  Nothing will be said well if the advocate insists on saying what can’t sensibly be said.”

Courage

The ability fearlessly to persevere in the face of initial judicial resistance is seen as one of the hallmarks of good advocacy.  The trick, no doubt, is the judgment to discern the difference between fearless perseverance in an arguable point and stepping over the line into arguing the unarguable.

In The Art of the Advocate, Du Cann canvassed both issues when he identified as one of the essentials of the advocate:

He must also have courage.  There must be no timidity about his performances.  Resort to the law is a form of civilized warfare, the advocate the modern representative of the medieval champion.  Courage, of course, cannot stand alone.  There is a time to stand and a time to sit for every advocate, and unless he can solemnize some form of marriage between courage and judgment he will never reach the first rank of the profession.

The judges’ observations included the following:

• “Fearlessness.”
• “Counsel who will back their judgement when I think aloud or play devil’s advocate.  Too many now turn to jelly if I press them on anything.  I particularly like counsel who will engage in a discussion about some aspect of the case that interests me.”
• “Perseverance.  … Sometimes a judge can form a tentative view about the merits of a case. It may appear to be a firm opinion.  Counsel, especially young counsel, can be put off and accept what appears to be the inevitable. If counsel has an arguable point, it should be, tactfully  of course, argued.  Counsel should persevere.  I think most of us accept that our initial views may not be right.  Justice will suffer if a point which counsel thought was arguable was not argued because of some initial opposition from the bench.  I don’t mean of course that a point which has been argued and apparently rejected should be serially repeated.”

Clarity

One judge identified clarity as perhaps the most important skill of the advocate:

• “Clarity.  This is, I think, the most important.  By this I mean clarity of expression, so that one knows with minimal delay and opportunity for confusion what point the barrister is making.  Clarity of expression is no doubt a consequence of clarity of thought and this is the discipline which should be pursued vigorously.  Clarity includes such things as making clear to the judge what precise order or ruling is being asked for and what rule or statute or case justifies or supports the order/ruling.  The attribute is important in all cases but particularly in Applications when the list can often be long.”

The clarity of thought to which the judge referred informs all aspects of the advocate’s role, from oral and written expression to the means of asking questions and taking objections.  It informs the advocate’s judgment and it is good judgment that underlies everything.  In particular, it leads to concentration on the important.  Other judges observed:

• “Relevance.  ….An understanding of what is relevant and what is not is absolutely essential.  Nothing is more irritating than being subjected to some narrative, or explanation, that cannot advance the particular case.  A sense of the relevant is an essential attribute for a good cross-examiner.  It is important elsewhere.
• “The ability to see the real issues and concentrate on them rather than on the chaff.”
• “Going for the jugular – by which I mean highlighting the critical issues in the case quickly and clearly and showing how they will determine the nature of the order or relief that is sought.  A good opening should identify those issues well.”

Outtakes

In order to finish on the cinematic note with which this article started, the writer has adopted Jackie Chan’s approach of ending with a select outtakes section. 

One perennial judicial complaint, expressed in a particularly poignant fashion:

• “I do not appreciate advocates who … [5] give time estimates which grossly understate the cruel reality to follow.”

A wonderful martial metaphor:

• “5. Bayonetting the wounded: Often it will be apparent from the exchanges between the bench and counsel for one party that the court is disposed to reject that party’s arguments.  A good advocate on the other side will be ready and able to state in a summary form, and in an organised fashion, the reasons for rejecting the arguments which may, at that stage, be limping in disarray around the courtroom.  This is the best insurance against judicial “second thoughts”.”

And, for the last word:

• “2. The warm olive oil massage: It has often been said that no judge can be flattered too much by an advocate.  Sadly, this seems to be true: even otherwise deeply cynical judges can be seen to eat out of the hand of the fawning sycophant whose gross obsequiousness is obvious to all but the recipient of the schmoozing.  Once again, you might ask, if this technique is so [successful], why is it one of the worst things?  First, it is manipulative, while at the same time reflecting a distinctly fourth rate ambition.  Secondly, because it is obvious to everyone in court, except the judge being massaged, it detracts seriously from the dignity of the judicial process.  Thirdly, no-one has ever done it to me.” 

John Bond SC