The “art” of the advocate: what is reality?
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.
Jacques Verges is a French advocate who has represented, among others, Carlos the Jackal, Slobodan Milosevic and Klaus Barbie. A DVD which “attempts to illuminate the mystery behind this enigmatic and controversial lawyer” was described by English reviewers as telling the story of a man who had polluted the principles of advocacy.
In the annual law reform lecture at Inner Temple (November 2010), Lord Justice Moses is reported to have made the following comments:
The Court of Appeal do not sit and listen to the summing up: indeed, if they had to, few would remain awake for longer than 30 minutes, even with the aid of a flacon of Portuguese smelling salts.
Trial judges are fearful of the expense and distress of a re-trial, and it is that which leads them to this endless exercise in composing a defensive summing up, a summing-up crafted to defend the trial from appeal.
In trials lasting more than a week, the judge should provide regular written and oral summaries.
A criminal trial costs about £4,300 a day and £7,000 a day at the Old Bailey. Summing-ups regularly last a day in trials lasting more than two weeks.
There were 389 such trials in the year to April 2010. £4,000 or even £7,000 is an expensive ticket to listen to a replay of the drama delivered in monotone.
The judge’s summing up is a frequent source of appeals against conviction.
Conviction appeals cost about £14,000 a day.