Maximising your impact as an advocate: A view from the Bench
By President Fleur Kingham, Land Court of Queensland
Good evening and thank you to the QLS for the invitation to speak tonight. I was pleased and honoured to be invited to address the first seminar in the 2017 Modern Advocate Lecture Series. It is important to foster our professional relationships and to reinforce the ethics of the profession through initiatives such as this one. It is my privilege, daily, to play audience to all sorts of advocates; professional and otherwise. On some days, like today, it is not just a privilege but also a pleasure. I enjoyed reading well thought out written submissions in advance of the hearing about a novel issue of statutory interpretation. The oral presentations amplified the critical arguments and the practitioners were responsive to my questions. A good day in Court indeed. Of course, they are not always like that. So I have a strong self-interest in promoting quality advocacy.
It was with that personal interest in mind that I came up with the title for my talk. Later, sadly when it was too late to change the title, I thought “Maximising your impact as an advocate” sounded dangerously like a toastmaster’s lecture.
You may be relieved to know, I certainly am, that I will not try to demonstrate a winning presentation style. My modest aims are: that you can hear me well; that this talk is interesting enough to hold your attention at the end of a day’s work and that my few presentation aids will reinforce my message, not distract you.
If I achieve all of those aims I will be well pleased. I intend to follow the advice Sir Owen Dixon is credited with giving to barristers – remember the Greek precept “nothing too much”. While speaking of ancient Greek wisdom, I am sure you are familiar with Aristotle’s Rhetorical Triangle; but in case you are not, here is my first visual aid.
Aristotle identified three pillars of persuasion by rhetoric: logos, pathos and ethos.
Logos targets the brain; it is the logical, rational aspect of argument. Pathos is about the heart; moving the listener to want to accept your proposition. Ethos appeals to the gut – the instinctual response to a person – that sense of whether we can trust what we are being told.
Tonight my main focus will be on ethos but, before I turn to that topic I do want to say something first about logos.
Logos, logic is the irreducible minimum of legal argument. Whether you are advocating orally or by way of written submissions, the logic of your argument is your most powerful tool for persuading a legal audience. But your logic will not be evident without clarity of expression. Your argument must take your audience step by step along a smooth path that leads inexorably to your conclusion.
Easily said and an elegant pleasure to observe, it demands mastery of your material, rigorous analysis, time to reflect, revise and, where necessary, to delete.
I think most lawyers will tell you they are reluctant to delete something they have written; especially if they have spent some time on it and are attached to the particular way they have structured or expressed the point; even if it is not strictly relevant or necessary. My advice is cut and paste it into a document of random passages. Store it under miscellany and comfort yourself that you still have that passage if you ever do need it. Confidence to pare down your argument to its essential comes with practice and experience. Remember that Greek precept “nothing too much” and practice using those helpful functions on your keyboard: select and cut.
My Executive Assistant found this next image for me to use in a presentation I gave recently about judgment writing. I asked her to find an image which illustrated the search for clarity. Obviously she has had to endure my judgment writing process because the image she found is uncomfortably familiar. So let me acknowledge now that what I am saying about clarity of reasoning is as important for Judges as it is for advocates.
The law reports are littered with bad writing; judgments which are prolix; rambling; and obtuse. This is not a question of experience; it is an acquired habit. We do what is modelled for us. But it need not be this way. It hasn’t always been this way. Just open an early volume of the CLRs and read for yourself. Yes, the law has become more complex. That does not mean, though, that every point that might be raised, however trivial or marginal, needs to be.
And an argument is not made by stringing together screeds of legislation and quotations. You know how your eye scans over the reproduced section or the case extract when you read your opponent’s written submissions. I will do the same with yours. Lay out your argument bare-boned. Provide the detail when, where, and if it is required.
So a plea from the Bench – eliminate the irrelevant and the superfluous. That will be a very good start to maximising your impact as an advocate.
I am indebted to my Associate who found this little nutshell, ironically buried in a great deal of verbiage about writing concisely and clearly. I offer it to you as a mantra that I will commit to and I hope you will too:
Context before details. Clearly partition the issues. Make your arguments succinct.
If you do this, you will reveal the logic of your argument. It will help you find the flaws and address them. And, importantly, it will help you advise your client about their options and prospects in the litigation. You are not only an advocate for your client; you are an advocate to your client - when you advise the better course of action. You will be best placed to fulfil that advocacy function when you truly understand and can assess your argument.
I want to turn now to talk about ethos. Let me go back to Aristotle’s Triangle of Rhetoric. Focus for a moment on the object of each pillar. Logos relates to the argument; pathos to the audience; ethos to the speaker - to you, the advocate.
Aristotle argued an audience will more likely accept propositions put forward by a credible speaker. To appear credible, he said a speaker must display (i) practical intelligence, (ii) a virtuous character, and (iii) good will.
I want to address virtuous character or, as I perceive that aspect of Aristotle’s theory, reputation. What does reputation mean?
The primary definition from the Miriam Webster dictionary contains two parts, both of which are relevant to my purpose:
a : overall quality or character as seen or judged by people in general.
b : recognition by other people of some characteristic or ability