• Robert Spicer

Advocacy: myth and reality

Advocacy

A standard text on practical hints for advocacy at the Bar (Evans, see Further Reading) makes the following points:

  • It is generally accepted throughout the English-speaking world that the standards of the English Bar are by and large among the best.

  • Ideal wear – unless you are utterly determined to make a political statement – is still the black jacket and waistcoat with striped trousers.

  • My Lord, Your Honour: there are complex rules of etiquette in addressing different levels of the judiciary: these are conventions, not law.

  • Conduct generally: for example, a barrister in robes never carries a briefcase or any other kind of bag. Barristers do not shake hands and should always address each other by their surnames.

  • The public attitude towards lawyers is unfortunate and understandable.

  • Give nothing away by your facial expressions.

There is an irreconcilable contradiction between this sort of advice and the professed commitment of the Bar to a modern and classless approach. The English legal system pays homage to the primacy of oral argument.

The sheer, mind-numbing boredom of courtroom advocacy is rarely admitted. The detailed, endless preparation, the waiting in draughty corridors, the tiresome repetition of evidence and counter-evidence, the predictably bad-tempered judge, the waiting for the jury to return. The interminable waiting on draughty station platforms for the train to Snaresbrook for the plea in mitigation for £50, the standing on crowded trains for the case management conference in Merthyr Tydfil for £30. The egotism of the advocates who love to be “on their feet”. The dressing-up, the dressings-down. The judge who was obviously bullied at his public school and who subconsciously returns the favour to his subordinates throughout his working life.

The mystique of oral advocacy can be a gift to those who love the sound of their own voices. It is now generally accepted that the English tradition of oral adversarial advocacy involves a massive waste of time, and therefore money.

Even the supposedly glamorous side of the trade, the Crown Court trial, has its great share of tedium. The trial process itself appears endlessly repetitive. Cross-examination, hailed as an art form, consists largely of repeating over and over again, questions to expose supposed inconsistencies in evidence.

And the waiting – nothing to do but wait – for the judge, the jury, the court. Hours of lost and wasted waiting time. Advocates in the Crown Court adopt a particular style of deference towards the judge – a deference which has been honed by convention over the centuries.

The speech to the jury – repeating everything the jurors already know and the judge’s summing up which repeats it all over again. This can be more than the normal person can stand.

The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.

A recent scheme to assess and approve the quality of advocates has been introduced by the Bar Council – perhaps this implies that things are not so perfect as is often implied?

The supposed image of calm efficiency in the courts is very different from the chaos which can reign in reality. Documentation is often faxed through the night before a trial and if a judge demands that papers should be reorganised, advocates may find themselves kneeling on the floor outside the court to comply with this judicial diktat.

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