The Mythical Art of Advocacy
My own view is that the “Art of Advocacy” is essentially mythical. The reality is that, so far as civil matters are concerned, successful tribunal and courtroom advocacy depends upon the following factors:
Detailed preparation
A thorough knowledge of the relevant court or tribunal procedure
A good knowledge of the law of evidence
Experience of the relevant members of the judiciary
A clear speaking voice.
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.
I reject the terminology of “winning” or “losing” cases. This approach reinforces the adversarial nature of the English legal system and can lead to the snooker term, not unknown in the legal profession, of “potting” an opponent. I prefer the use of phrases such as “successful” or “unsuccessful” applications.
The Woolf reforms of English civil procedure concluded, for a number of reasons, that litigation should be a last resort. I take this conclusion seriously. In my experience, cases can be brought to a successful conclusion by written advocacy of the highest standard without recourse to the expense, drama and stress of oral advocacy in courts and/or tribunals. Civil procedure has seen significant movement towards written advocacy, with proactive case management and detailed directions for written material to be submitted in advance of hearings.
Current moves towards a quality assessment scheme for advocates are reportedly based on the statistic that 70 per cent of court and tribunal oral advocacy is below an accpetable standard. This shocking statistic could be dealt with by applying the five factors set out above, particularly that of detailed preparation. It is well-known that the generally poor standards of oral advocacy in English courts and tribunals are closely related to the late delivery of documentation and a lack of detailed preparation.