Good advocates and bad advocates both make mistakes. It is only the good advocate that realises they have lapsed into error and resolves not to do it again.
But what makes a good advocate?
A good advocate is not a “competent” advocate. A competent advocate will be able to string a sentence together (there are some that cannot and they are easily identifiable as a poor advocate) and will probably cover most of the basics required in questioning and making submissions. The competent advocate, however, is a long way from a good advocate. I fear that many mistake competent for good. We certainly know that the previous Lord Chancellor was content for a legion of competent advocates. He was wrong.
Simply because someone is an “effective” advocate does not mean they are a good advocate. Of course good advocacy is effective advocacy. However just because someone wins more than they lose, does not make them a good advocate. This may seem like an odd thing to say. It is not. The adversarial system relies upon certain rules, some written and some unwritten, to maintain the integrity of the system. It would be very easy to up your success rate by stepping over the ethical lines. The prosecutor who withholds unused material or the defence advocate that gives the defendant the defence can be very effective but fall a long way from being a good advocate.
I also wonder whether the tribunal, most commonly the professional judiciary and juries, compensate for poor advocates. Judges do it through a sense of justice and their own experience/ability. Who has not seen a Judge take over a poorly conducted cross-examination by your opponent as you fix His Honour with a stare that says “but I was winning….” And how many times has the Judge rescued the case at half time with an answer to your submission that your opponent has yet to understand?
I suspect juries some times do it out of a sense of innate fairness. They will grasp that the defendant has been poorly represented. Often by the clashes they have witnessed between bar and bench. Often it will be that the paucity of the representative is obvious to all. They realise that they, the jury, are not getting the assistance they need to reach a just outcome. So they reach the only outcome that can be fair in those circumstances, they acquit. And off goes the poor defence advocate, believing themselves to be the bees knees.
Having described some of the things that do not necessarily signify a good advocate perhaps I should outline what I believe is a good advocate, to do otherwise would be…. well……poor advocacy.
Judgement is absolutely key to all things advocacy. The same question, concerning the same facts but when dealing with a different witness, may be the wrong question to ask. It is a matter of judgement. That is one of the essential differences between a competent advocate and one that is good.
The issue of judgement pervades many of the differences between competent and good. Other skills then weave into fabric of the quality advocate. So a competent advocate may ask all the relevant questions and make all the appropriate points. The excellent advocate not only asks the relevant questions but they do so in the way most beneficial to their case. There are times when it will require a light touch and other times when it will require a toe to toe, no holds barred, “you want the truth, you can’t handle the truth” moment. There are times when the question needs to be asked in a number of ways or in incremental stages in order to tease out the information you require. Some times a good advocate needs to know when to slam on the brakes as they have all they need.
When it comes to speeches and submissions the good advocate and the competent advocate will broadly make the same points. The better of the two (and we all should be aiming for the better end of the scale) will make them in the most attractive way possible. When you are addressing a jury that does not mean flowery language and quotes from the literary masters. It is not just about delivering a wonderful piece of oratory in rich tones with clear diction. It is about communicating and persuading.
The communication of ideas in a way that can be understood by 12 strangers is absolutely key to good jury advocacy. The use of language is paramount. It is not just about saying the words. It is about delivering the right words in an attractive way.
Persuasion is often overlooked when it comes to submission advocacy to a Judge. It is certainly overlooked by the merely competent advocate. A plea in mitigation is not just a list of things that mitigate the sentence (often interspersed with a whole host of irrelevancies when the competent descend to the less than competent). A plea in mitigation should set out with an aim with each submission adding to that aim. It is fact allied to reason. All presented in an attractive way, albeit in a different way that you would address a jury.
Good advocacy is not all about winning. A good advocate always remembers the role they are playing within the adversarial system. The Toolkits that assist with the questioning of vulnerable witnesses are the foundations of good advocacy. It is not about a win at all costs. It is about approaching the witness and the courtroom with the appropriate sense of dignity and courtesy. This is why I believe that having both prosecuted and defended cases is a valuable stepping stone on the journey to being a good advocate. The appreciation of what you are doing and the context in which you are doing it is as vital to the provision of good advocacy as is the ability to move the jury to tears with the power of your words (which is something I have never managed to do, although I must confess to at two least jurors having nodded off whilst I address them).
The most common mistake that I see is a lack of thought. A lack of planning. The advocate that stands before the court with a PSR in their hand having given no thought how to translate their knowledge of the personal circumstances of their client and the contents of the report into the sentence of the Judge. The advocate that just writes out a series of questions for a witness without having given any thought to what they hope to say in their speech, and how they hope to say it.
These are just a few of my thoughts about advocacy. There is a debate raging about the provision of advocacy services. I may, if brave enough, dip my toe into that debate in due course. Before we discuss how we get to the provision of quality advocacy across the board we need to consider what that represents.