Tag Archives: law student

Internal Combustion

I am a fairly level headed chap. I pride myself on being the calmest person in the room. Right now I am livid.

Anyone following my Twitter or this blog will probably appreciate that I am not a fan of the unpaid internship. I have made my views plain over the last couple of weeks. The news I heard about today has taken my view of the unpaid internship and shaken it a little. I now realise there is something worse out there – the internship which the candidate actually pays for.

I have been forwarded an email which was sent by the Student Lawyer Magazine. The email makes the following offer

Did you miss out on a vacation scheme or mini-pupillage this summer? Make sure you secure a legal internship to enhance your CV and maximize your chances for next year.

Our friends at Virtual Internship Partners offer legal internships, working remotely and flexibly, between 15 and 30 hours a week. Work from home, campus, or your favourite coffee shop. You’ll work on meaningful projects and get real world experience in a legal role designed to develop key skills needed to further your career prospects, whilst receiving valuable training and coaching. You can even go global with an international experience through Virtual Internship Partners’ network of amazing host companies!

This seems like a kind offer from the friends at Virtual Internship Partners. An opportunity to have a work placement that fits around you. Brilliant. But there is more.

They offer a comprehensive professional development course helping you develop your competencies for the workplace. They will give you regular 1-to-1 career mentoring sessions. And you get references from your host company. So that seems fair, right? You give your labour for free but nothing in the business world should be given away for free so you get something back in the form of mentoring. Win/win! Right?

One small catch. You pay for this. You pay £695. Virtual Internship Partners are placing people to do work and asking them to pay for the privilege (plus some mentoring thrown in, and don’t forget the reference).

I suppose the silver lining is that The Student Lawyer Magazine has at least been able to secure applicants £100 off from their friends at Virtual Internship Partners. Which is the least they can do. Particularly when a little cursory internet searching tells you the “sister” company of Virtual Internship Partners is CRCC Asia. The co-founders on VIP’s website are named as Edward Holroyd Pearce and Dan Nivern. Edward is a director of CCRC Asia. Both Edward and Dan are also directors of Gradmedia….the company that publishes The Student Lawyer.

I am sure this is all above board. Edward has been interviewed about it on the BBC. He is upfront about the fact that the participants bears the “costs”. There are testimonials from satisfied customers, although one of them is actually an investor who one suspects did not complete his internship through VIP. What it is, however, is morally wrong. The email is morally wrong to not disclose the connection and the concept is wrong. It is charging people to work and giving them some support along the way.

Law firms – if you want an intern, pay them a wage.

Applications Open!

If you are reading this you probably know that there are three paid work placements on offer with myself, Nicholas Clarke QC and Chloe Ashley. Myself and Nick are at 9 St John Street in Manchester whilst Chloe practises at No5 in Birmingham. The remuneration is a bursary of £700 for the two weeks plus up to £300 towards your expenses. It is hoped that this will be more than just an extended mini-pupillage following people to court but will include marshalling and other experiences of life as a barrister.

This is the process by which all three placements will be selected. The initial application is by email and ten candidates will be selected for an interview by Skype/FaceTime. The ten on the shortlist will receive a signed copy of The Secret Barrister’s book and a copy of Rumpole of the Bailey.

I am afraid I am not going to be able to provide feedback to those unsuccessful and I am afraid only those invited for interview will be notified directly of the outcome. I will announce the names of the final ten on my blog and my Twitter account, so you will be able to check there. Once I know how many applications I am dealing with I will announce the date by which the successful candidates will be notified.

The initial stage will be an application by email to internship@9sjs.com. This email account will only be used for the purpose of this application and will be disabled once the shortlist is announced. Please only use this email address, do not contact my chambers as this is a personal arrangement and not something that my clerks or others at chambers have any role in organising.

The initial application should include the following details in the body of your email;

  1. Full name
  2. DOB (the placement is open to those who are 17 years or older on 31/07/19)
  3. Postal address (if you are a student it may be best to use an address from which you can collect your post outside of term time)
  4. Email address
  5. Contact telephone number
  6. Educational history (A-Level or equivalent onwards, just let me know what you studied and where, I don’t need grades)
  7. Previous legal work experience
  8. Please indicate which three of these areas you would like to have some experience of in the course of the placement Crime; Family; Employment; Civil PI; Civil Commercial.
  9. Preferred location Manchester or Birmingham

None of that information will be used to decide to who is placed on the shortlist. Some of the information may become relevant at the next stage but will be explored at interview. All of that information should be provided in the body of the email. Then you need to attach a separate document to the email, either in Word, PDF or Pages format, which is a written piece by you which answers the question “Why you should be offered the placement”. The STRICT word count is 750 words. For the shortlist I will be looking at the reasons you give why it should be you AND the manner in which you seek to persuade me.

I am going to give you one or two hints and tips. This is not the X-Factor. I do not need to know the incredible journey you have been on. I want to be persuaded with reason, not with adjectives. I will take it as a given that all of you that have applied really, really want this opportunity! Stick to the word limit – concise arguments are key to the successful barrister.

My aim is to provide these placements to candidates with real potential for a career at the Bar but for whom work experience opportunities are limited.

The closing date for applications is 4pm on 17th June 2019. The dates of the placements are flexible to suit the candidates and the availability of the three of us supervising. I cannot thank Nick and Chloe enough for joining me in this enterprise. I also have to thank an anonymous individual who has provided the funding for the placement with Chloe. I also have to thank the Judges and solicitors who have assisted so far and Tim Collins, a legal recruitment consultant.

I look forward to reading your persuasive pieces of written advocacy. Good luck!

A Game With No Rules

Twenty-three years ago I commenced pupillage. It is a good job that this is being written on an iPad so the solitary tear that has just dropped from my eye has not smudged the ink. Twenty-three years ago! Where has that time gone?

I have less hair on my head and more hair on my face (more of that later). I have moved from being pupil to pupil master to three pupils, all of whom it has been a privilege and a pleasure to supervise. And yet I can recall the fear and trepidation of pupillage like it was yesterday. 

Pupillage is the strangest experience. It is part interview, part trial by endurance and part learning experience. You want to appear like you know everything so you impress and yet you do not want to come across as a know-it-all. And, of course, the reality is that you are at the bottom of an incredibly steep learning curve. You feel like Eddie the Eagle when he first stood at the bottom of the 70 metre ski jump. You are entering some weird game where everybody else knows the rules except you and, just to make things more complicated, virtually every barrister you will encounter will have their own variations on those rules. 

My beard is the embodiment of that miasma of unwritten conventions that you may transgress. I was struggling to obtain pupillage. A barrister I spoke to suggested I shaved my beard off. The very next, clean shaven, pupillage interview secured my first six. Coincidence? Well I grew my beard back when I started pupillage and was asked in the first week “Did you have that beard when the PTC interviewed you?” by a senior Silk in chambers. Off came the beard again for my pupil master to say “Glad to see the facial hair has gone, Gavin” (whilst clearly forming a view on the goatee, my pupil master always struggled with my name). 

Was this pognophobia limited to my first chambers? I went four years into tenancy (in the chambers where I did my second six with a pupil master who remembered my name and knows more about advocacy than I ever will) sporting a freshly shaved chin every single day. Then I had to have some time off to have an operation and back came the beard (I reassure you that it was no longer a goatee). The reaction of a Silk in chambers on my first day back at work was to point to my chin and utter the words “Hopefully that is just temporary…”

Enough of my beard, the point is that there are many such views on what is wrong and what is right for the putative barrister, beyond the rules of ethics they teach you on the course. And because pupillage has that element of the year long interview you are walking through a minefield wearing over sized boots. With your feet tied together. Blindfolded. 

So what advice to give the new pupil? You cannot go wrong by having a good look around you at those members of chambers who have been through this process before. I am not suggesting that you have to suppress yourself, to pretend to be someone else but you will notice that there is a certain way the majority of barristers dress, for example. No matter how free, fearless and independent you are going to be once you are a member of chambers, those electric blue flares with an embroidered flower down one of the thighs is not appropriate wear for your first day in chambers. You are not expected to be a Stepford barrister but the fact of the matter is that courtrooms are serious, somber places where the attention should be on the eloquence of your advocacy, not the flamboyance of your pocket square. 

Smart, dark suits and neatly ironed shirts and blouses are the order of the day. Clothes may not maketh the woman, but they can certainly show you have made the transition from student to professional. 

I was advised by someone the year ahead of me to say every third thing that came into my head, that pupils were like Victorian children; to be seen and not heard. That advice was along the right lines. As the pupil you have to remember that the members of chambers you go to court with are involved in cases that may well be stressful and may have nuances to them of which you are unaware. The golden rule is do not “contribute” your view unless asked to, particularly in conference, in the presence of the opponent or solicitor. By all means have a discussion with your pupil master or the person you are with that day about your approach to the case and its issues, but do it at an appropriate time. You may well feel that you have something to contribute but remember that you are there to observe and learn. There may be a very good reason why something is not being mentioned to the opponent so do not be the one to blurt it out. 

That even includes if you are dead certain the member of chambers you are with has got something absolutely wrong. Firstly, they may not have done, for reasons that you are not aware. Secondly, they are not going to thank you if they are wrong and you expose this error to all and sundry. If you think they are getting something wrong, then find a subtle way or moment to tell them. You may be able to slip them a note or begin a conversation when you are not being overheard with “I am probably being stupid, but I have had a look in Archbold and I would have said that statute isn’t in force yet. Where am I going wrong?”

Diligence and hard work will always be noted. And that includes the appearance of diligence and hard work. If your pupil master tells you they expect you in chambers at 9am there is no harm in being at your desk at 830. And the same can be said at home time. Do not be the pupil who is never seen in chambers after 430pm. This is not just a question of being chained to your desk to show you can cope with the sort of hours that City Lawyers wear as a badge of pride. These are the times, outside of court hours, when you are likely to encounter members of chambers. This is, therefore, your chance to get to know them and them to get to know you. Add to that is the fact that a career at the Bar is going to involve plenty of preparation outside of “normal” office hours. Now is a good time to get used to it. 

Pupillage is, more than anything else, your apprenticeship. There is so much to learn, so much to absorb. Take every opportunity to gain experience. And do not be afraid to ask if you do not know how something is done. Or why someone did something in a particular way. 

Try to avoid, if you can, simply asking for the answer. It is so easy to approach members of chambers to ask “how do I….” or “what is the law on….” Show people you are thinking about things and not just expecting to be spoon fed. Try saying “I think the answer is…..what is your view?” Or “I have looked it up, can I just run through what I have found? Is there anything else?” People should be generous with their time as long as they do not think this is a substitute to you doing your own work and thinking. 

Always meet deadlines set to you for work. If there is a specific problem, if you are struggling to find the answer or found yourself hospitalised when you dropped Archbold on your toe, then ask for an extension. That is what you will do when you are on your feet. Do not hand in work late, and then come up with your excuses. 

Check your written work. Then check it again. Then go away and read something else. Then come back to your piece of work and check it again. Then print it out. And check again. 

There will come the point in time when something goes wrong. Do not think that because someone gives you a piece of work back with red ink all over and corrections galore then this is the end of the world. Your work is not going to be perfect. It is going to need correcting. You are going to make plenty of errors. The important thing is to learn from them, to not make the same mistake time and time again. 

Things can go more spectacularly wrong, of course. There are a rare number of pupillages so that do encounter real problems. Make sure you work with Chambers so, should a problem be identified during a review of your pupillage, you know what is expected of you and what you need to be doing. Set a plan and work out the problem. The Bar Council run a dedicated and confidential advice service for pupils. If you encounter difficulties then use this service. 

One final word of advice. Enjoy your pupillage and enjoy getting to know people that you will hopefully spend the rest of your career working with. Do remember that you want to be remembered as the pupil who excelled at everything they did, not the pupil who photocopied their nether regions in the clerks’ room after the Christmas drinks party….

I hope someone out there will find this advice useful. Pupillage is full of highs and lows. At the start you will be desperate to get out there and begin your career. As your first six draws near to a close you will wish you could go back to the start as you will feel like you know nothing. Trust me, you know enough and you have the ability that has got you this far. More senior members of the profession will always be prepared to help. 

Twenty-three years have passed in the blink of an eye. I may moan about the job, about the MoJ, about fees and about just about everything else. But it is still great to see the enthusiasm of those new to the job. Good luck!

Silence is Golden

I am trained in the Hampel Method. This is not a type of breathing designed to allay my fear of flying, heights and unfeasibly cheery Scotsmen. It is not a method of yoghurt weaving favoured by certain sections of Chorlton society (that is a joke for only the Mancunians amongst you…) The Hampel Method is a method of training advocacy. I must confess I scoffed at the idea of advocacy being taught but the Hampel Method is actually pretty darn good at laying down the basics and improving certain areas of an individual’s advocacy.

The first thing they tell you when you are schooled in the Hampel Method is that you should leave the war stories behind. Nobody wants to know how great you once were in a case, nothing is learnt by you telling the student of advocacy of how you once demolished a witness and the tale of the set piece flourish of producing the answer the witness has just given on a piece of paper from your pocket with a “how could I have known that unless my client is telling the truth” line to the jury is the stuff of Magician School, not Advocacy School. 

So let me break the rule immediately. Let me tell you one of my favourite war stories. And I do so because it perfectly encapsulates the little bit of advice that I want to get across in this blog. It is a totally true story. I am not one of the advocates involved but I was in court and witnessed it first hand. 

There was once a PCMH, that is the hearing at which the defendant enters his plea and the advoactes tell the Judge a little bit about the case (such as which witnesses are going to be called, how long the trial will last, what matters of law can be anticipated). In fact, this was so long ago it may have been a PDH. The modern amongst you will now know it as a PTPH. But let us get over that initial detail and get on with the story. 

The case that was before the court involved a man who objected to his neighbours. He particularly objected to the children, a boy and a girl. He took the greatest offence at the boy and the girl repeatedly kicking their ball into his garden. This much, I discovered, was agreed between the Prosecution and the Defence as I listened to the PCMH meandering onwards. The issue in the case was simply this – the defendant said he had intended to shoot the ball with his air rifle and that it was an accident that he had in fact shot a child….or two. They were only flesh wounds, you will be glad to know. But the Prosecution said that he had intended that which had happened, a pellet in a buttock of each transgressing child. 

The trial was fixed for the following September and the necessary orders were made. A PCMH that had proved a brief distraction from the usual diet of burglaries and tenner bags of heroin was about to conclude. With everything done and dusted the defence barrister (who shall remain nameless and is no longer an advocate in this jurisdiction) got to his feet and addressed the Judge;

“Your Honour, with them being neighbours and all that, it is within my client’s certain knowledge that the complainant family, his neighbours, as it were, are due to emigrate to Australia in June, and that being the case, may I invite my learned friend to consider at an early opportunity the viability of the prosecution that is going to be without a single witness to events come September and that the prosecution take an early view of this matter so as not to prolong the suffering and anxiety of my lay client….”

Which goes down in history as the greatest own goal in advocacy I have ever witnessed. Prosecution counsel immediately got to his feet, thanked his learned friend for that piece of information and invited the court to bring the case forward to before the anticipated departure to Australia. Which the Judge duly did. 

This truly snatched a defeat from the jaws of a certain victory. This hearing took place so long ago that, not only is the defence barrister now overseas, the Judge has passed away and the prosecution barrister is no longer practising, but this was the days before video links and easy admissibility of hearsay evidence in criminal trials. You can tell how long ago it was by the fact that both sides were represented by barristers in independent practice.

The absence of videolinks to foreign climes and trials in the absence of witnesses means that, had the defence barrister kept his powder dry there was a prospect that his client would be acquitted in the September. As it was, he was tried in the May. Sadly I do not know the outcome. 

This war story illustrates one of my advocacy bugbears and the reason why I am right to condemn it. Just because you are an advocate it does not mean you have to go about advocating all the time. There are many instances when the greatest advocacy you undertake is what you do not say. Many of my finest hours in court have been the times when I have got what I wanted by saying very little. 

The enemy of good advocacy is the advocate who likes the sound of their own voice. There are times when it is just tiresome, the advocate who has nothing to add to the hearing but wants the client or the solicitor to see them doing their bit. Tiresome can, however, also be troublesome. Pointless advocacy can often turn the mind of the listener, the Judge or the Jury, against the advocate who drones on. If you say twenty pointless things, it is difficult to spot the one pearl of wisdom that you hit upon. This is where Ronan Keating and I have something in common, you say it best when you say nothing at all.

It is also a case of “loose talk costs lives”. The advocate who feels the need to add their two penneth when the victory has already been secured does nothing but risk undoing that victory. Whether it be the question too far in cross-examination or further submissions to a Judge who is with you, all you are doing is risking that which you have gained. You can have no idea, until it happens to you, how frustrating it is for your co-accused counsel to let the other side back in because they feel the need to have their say. 

If you have nothing to add, then keep your bum firmly on the seat. 

And the story of the over sharing advocate that I have just told you shows the value of patience. The value of not saying something until you have thought it through. The value of keeping your powder dry. A brilliant point can be the worst point, dependent upon when the point is made. Trying to keep your advocacy concise and economical is not only good advice for advocacy that is easy to listen to, it is also a good discipline to ensure that your advocacy is the result of proper judgement, not just a desire to be heard. 

All advocates should, in reality, like the sound of our own voice. But only when you are hitting the right notes. And never, never, just for the sake of it. 

Fifty Years From Now……

This month my nephew commences his GDL. We are not a family with a history of lawyers. There is me, my sister-in-law and our joint nephew. That is it. 

In fact we are not a family with a history of university attendance. My generation in the family were the first to go to University. My nephews and nieces have all gone to university. What a giant leap forward in one generation. 

And now the Bar will shrink back into the Dark Ages. In a week when the Lord Chief Justice is, I respectfully suggest, somewhat complacently suggesting that diversity in the Judiciary will work itself out in fifty years time, the reality is that the Bar is rapidly undoing all the gains made in recent times. Think not just of the gender of the upper echelons of the Judiciary fifty years from now. Think of their diversity, their ethnicity, their cultural background, their educational background. I foresee white, privately educated and, more than likely, still male. 

Why do I say this? My nephew and I are very similar. We went to the same (comprehensive) school. Our (proud) parents had not attended university themselves. Both of us have paid our own way, in conjunction with our parents, albeit his level of debt dwarves mine. 

I am not suggesting either of us were ever going to be the Lord Chief Justice. In my case I can positively rule it out. However the upper echelons of the Judiciary tend to be drawn from the Bar. It is the Bar that tends to allow people to concentrate on being lawyers rather than managers, business leaders and employers (please, solicitors, do not all shout at me at once, I know this is a generalisation but a blog requires some shorthand sweeping statements and, for the time being, the Supreme Court is likely to be drawn from the Bar).

So why am I ruling out my nephew? It is because I love him and want to see the best for him. So I have advised him against going near crime and have advised him against a career at the Bar, despite the fact that this is what he wants to do. This is not the X-Factor. Being passionate about it and “really, really wanting it” whilst going on “an incredible journey” does not pay the Student Loan and does not alter the diminishing prospects at the Bar. Not when the incredible journey saddles you with £30,000 more of debt, no pupillage and a largely meaningless post-graduate qualification. 

The culmination of various Government policies means that anyone who gives realistic advice in the best interests of an aspirant lawyer will tell them not to pursue a career in crime, not to pursue a career in public funded work and that their greater chances of a career lie with a training contract rather than a pupillage. Even the brilliant and the dedicated, and the brilliantly dedicated, need a dose of reality. And they are smart enough to make the right choice. And the right choice is no longer the Bar. And it is no longer crime. 

I have read that people predict that the Two Tier Contract system sees the death of the Criminal Bar within six months. That may be a tad pessimistic. The true prognosis, however, is that the Bar is already stricken by a terrible malaise. It may not finish us off tomorrow but it will end the profession as we know it now. An open and diverse profession. A profession to aspire to. A profession with a training regime designed in the pursuit of excellence in our traditional strengths. 

The Bar will struggle to recruit the brightest and the best, unless they happen to be wealthy. The Bar will struggle to recruit from a diverse social and cultural background. The Criminal Bar (often a way in for those less privileged) will struggle to recruit at all. Meanwhile we will struggle to retain those already practising. If you do not accept the link between retention levels and remuneration levels just take a look at what is happening with junior doctors

And that may be where Sumption may have got something right. Thirty years ago the problem was in male dominated recruitment. In more recent times retention levels have been lower for women than for men. Where he is wrong is in his assessment that this represents a lifestyle choice by females, a rejection of lifestyle in some way more suitable to men. For many it represents an economic necessity that they do not remain within the profession. 

Where Sumption is even more out of step is in concentrating his public pronouncement on an attack on gender positive recruitment. He needs to look further down the food chain. He needs to step into the limelight to highlight the damaging impact of Government policy on the diversity of the pool of available candidates for his job fifty years from now. Now that would be a fine example of an independent judiciary. 

My Imaginary Friend

Part of my pupillage was conducted by catchphrase. My pupilmaster would throw out the question and I gave the refrain. So, with regard to money received he would say “What do we know about each cheque we get?” and I would reply “You only get half”. “What is the first thing you do when you finish in court?” he would ask, “Ring the clerks” I would chime back (this was before mobile phones were widely used, much to my aged embarrassment). On the importance of developing a prosecution practice he would say “Who has half the criminal work in Manchester?” and I would dutiful reply “the CPS”. Then “What is Thursday?” would produce the response “AutoSport day”. (That was less relevant to pupillage, and it may have been Monday and Thursday was AutoTrader day…..not that this matters now….)

I had a cracking pupillage. Months of observing and discussing the anatomy of a criminal case with my pupilmaster and the other members of chambers. Witnessing differing styles, differing approaches and receiving a wealth of advice along the way. Fantastic training in advocacy. 

One of the headline catchphrases was “What is the secret to good advocacy?” to which the response was, and still is, “Judgement”. I refer to this in my other blog on advocacy The Good, The Bad and The Competent.

There is, however, a further ingredient that I worked out for myself. It took me a long time to work it out. All advocates who aspire to excellence need to have imagination. I will explain why in a moment. Before we move to the why let me just say there is no need to panic. Everyone is possessed of an imagination (sadly the same cannot be said for good judgement). As a child you played, as an adult you read. Exercises one and all for the imagination. 

It is not a question of having the imagination of Roald Dahl or J.K. Rowling. If your imagination is similar to their imagination I would advise you to stop reading about advocacy and start writing Harry Potter and The Chocolate Factory or James and the Giant Goblet of Fire. And give me a credit and maybe a share of the film rights. 

Why is imagination important? Let us begin with empathy. Empathy involves, in part, the imagining of life and situations different to your own and then appropriate understanding of that situation. If you have never walked a mile in another man’s shoes then the next best thing is imagining what it would be like. You cannot get the necessary rapport with some clients unless you can go some way to understanding the context of their life. And in some instances you can only obtain meaningful instructions with that rapport established. The same, of course, can be said of witnesses. An insight into their life may only be possible through the use of your imagination. 

It is probably in this regard, in relation to witnesses, where imagination becomes key. So often you will see advocates cross-examining simply on the basis of their instructions. Some times endlessly. Repetitively. Often a cross-examination that leads to no more information being before the jury than a flat and repeated denial by the witness. But oh, what a little imagination could achieve. 

Only through the use of your imagination may you begin to develop lines of inquiry that unearth important information that will assist your case. It is by thinking about what could have happened or what another piece of evidence could mean that may lead to a line of vital questioning. I say may because you certainly do not embark upon your every imagining. Let your thoughts run wild with imagination, let your questions be tamed by your good judgement. 

Much of a prosecution case is made of pieces of evidence. There are, inevitably, gaps. It is your imagination that can peer into these gaps and sometimes see the way they fit together that is different to the prosecution’s case theory. This can inform the way you look into that evidence, explore it before the jury and shape the route to the verdict. Look at the evidence and ask yourself “what could this mean?” Do not be hidebound by the theories of the other side or your client. Be inquisitive and let your imagination provide the answers. 

Now the word of caution. Never fall into the trap of imagining there is only one way of behaving or reacting. When considering the evidence of a witness do not imagine that they will react in the same way you would act. You have to imagine the way someone in their situation may react and this will cater for a number of different scenarios. All of which you then need to examine. 

You will have heard the warning “never ask a question to which you do not know the answer.” Well, it is rubbish. This narrows the field of cross-examination to the impossibly small. The correct formulation is “never ask a question about which you have not thought through the potential answers”. This is in part a question of judgement, you are weighing up risk versus reward. However the potential answers can only be reached through a thought process that requires ….. you guessed it ….. imagination. 

We do not make up the accounts of our clients and witnesses. When it comes to juries we are not the author but we are the storyteller. It is not about creating a fiction, it is about making the facts live. Take the evidence, add a little bit of imagination, season with a little bit of judgment and combine with your own abilities as an advocate. 

The Good, the Bad and the Competent

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.