The purpose of this article is to share some views on the fundamentals of trial advocacy. It is meant to be a discussion of the writer's view on some basic premises underpinning trial advocacy. It should also be pointed out that this article is written for and addresses concerns of lawyers starting their advocacy career. Seasoned advocates will no doubt find what is said here familiar and, hopefully, helpful as a reminder.
Introduction
The word 'litigation' comes from the Latin word 'litigare' which means to 'carry
on a lawsuit'. The essence of litigation is to advocate some thing in
furtherance of one's lawsuit in court, hence, the need for an advocate - someone
to speak on one's behalf and to further one's cause.
Seen in that light the most important aspect of litigation is perhaps the court appearance of the advocate advancing his client's cause.
Advocacy or, more properly, the art of advocacy is an area which has traditionally been neglected by law schools. More recently, however, greater emphasis has been given to the training of both law students and graduates in the practical aspects of litigation and, more specifically, advocacy training.
Advocacy
To put it in a simplistic fashion, the art of advocacy before a tribunal is
nothing more than putting one's viewpoint across as clearly and as convincingly
as the factual matrix or the evidence will permit. In the context of a trial or
a court hearing or any type of quasi-judicial hearing, however, such an
understanding of the art of advocacy is too simplistic.
In terms of the art of advocacy in a judicial setting, the key is really the issue of persuasion. The object of any advocacy in court is to persuade the tribunal or judge to accept the advocate's point or argument. Failure to persuade the tribunal or judge will not obtain the result the advocate desires.
The Art of Advocacy
It is not the intent of this brief article to explore the various forms of
advocacy before different quasi-judicial and judicial fora. Needless to say
different tribunals may call for different advocacy techniques though the
fundamentals will remain the same. An important distinction to be made in the
case of Singapore is the absence of jury trials. Jury trials call for quite a
distinct form of advocacy, the likes of which we have not seen in our
jurisdiction since we jettisoned the jury system in 1969.
Trial advocacy, as the name proclaims, relates directly to advocating arguments before a judge/tribunal in court. It is in this setting - the court room - that litigation and trial advocacy takes place. It is, therefore, advocacy in this setting that this short article seeks to address.
What is Advocacy or More Specifically Trial
Advocacy?
As has been pointed out, Socrates in his criticism of advocacy draws attention
to the fact that, 'The orator does not teach juries and other bodies about right
and wrong - he merely persuades them'.1
The fundamental feature and the objective of all advocacy and particularly trial
advocacy is persuasion. The Shorter English Oxford Dictionary defines 'persuade'
thus: 'to try to convince' a person.
Once it is understood that the art of advocacy is the art of successfully persuading the tribunal/judge to one's point of view or argument, then the fundamentals of trial advocacy fall naturally in place.
How Does One Persuade Another?
It is suggested that, like all things which appear arcane, the art of persuasion
in advocacy, stripped of its frills, boils down to four basic truths:
The Basic Truths
How does one then address the stated four basic truths? Let us now take them in
turn and examine these suggested truths against the backdrop of trial advocacy.
You cannot force the other party to your point of
view
Being free-living people, we all cannot be easily forced to do or say anything
against our will. Indeed, it is another well-known fact that when forced to do
something against our will, we are more likely to 'dig in', so to speak, and
hang on to our view of things more stubbornly. Thus, to pose a question in a
manner that implies that the witness is stupid or slow witted only invites a
robust response which is very seldom a response or answer that the advocate
questioning desires. Moreover, it is unprofessional and should not be tolerated.
In many situations, charm is preferred to harm. If by charm and wit you persuade the other to come over to your point of view or to your view of the evidence, in the case of a trial, then that is when the witness in the box has been won over.
Too many trial advocates approach the examination of witnesses as a battle and, therefore, take the view that a witness must be broken. That is not the basic approach to be taken. To be sure, some witnesses, like wild broncos, will have to be broken. However, most witnesses are merely observers of fact that have been dragged to court against their will.
To break a witness requires the skill of a very seasoned advocate. Certainly a litigator, early in his career, should not regard the ability to break a witness as part of his court-room arsenal for, more likely than not, his inexperience will see the approach backfire.
Your argument must be credible or at least plausible
The second basic truth is as obvious as it is sometimes hard to remember.
As lawyers, we believe that we are rational and, for the most part, we try to act rationally. Our fellow human beings - the members of the public or lay people - upon whom we practice our art of advocacy, in like manner, believe that they too are rational. Therefore, any argument that is less than logical or does not contain at least a modicum of logic stands little chance of being 'accepted' by a witness. Needless to say, this is crucial when it comes to having the bench accept your argument; for example, to make an argument or to ask a question on the premise that party 'A' travelled from City Hall MRT station to Newton MRT station in one minute is not logical since common sense dictates that the train would usually take at least ten to 15 minutes to travel that distance.
Your argument must be based on fact or have legal
basis
Any argument put forward must be based on fact or have legal basis. Arguments
based on what may be said to be based on the premise 'I say it and therefore it
must be so' is not credible. What is worse is that it insults the intelligence
of the very party you are seeking to persuade, ie the judge.
The above is not to be confused with what is obvious or what is trite law. Too often, however, advocates stretch what they regard as obvious or trite to quite ridiculous lengths. True, some advocates get away with it, but again lawyers beginning their advocacy career, and indeed most, will not. Besides, in trial advocacy, the credibility of the lawyer or advocate himself is crucial. As has been said, the advocate is himself on trial.3 A useful example would be a running-down case in which it would be wrong to make a submission that the defendant was speeding in the absence of evidence of speed or relevant evidence of tyre marks. Gratuitous arguments have no place in the art of persuasion.
Packaging as part of persuasion in advocacy
As all public relations professionals and 'spin doctors' will tell us, the art
of 'selling' an idea to another is to put things in a positive spin as opposed
to a negative spin from that person's point of view.
Based on the above premise, whether questioning a witness or putting forth an argument before a judge, it is almost always better to put the question or the argument in a form that is capable of being better received than in some other form which either challenges the recipient's position or is contrary to his belief.
Thus, it is always easier to get a witness in a case to agree with you that the witness, being a reasonable person, would regard a particular request as being reasonable than to have the witness agree that to refuse such a request would have been idiotic, even if that was the case.
Suppose you had a contractual dispute in which one of the issues turns on whether a particular request for extension of time is reasonable or not. You act for the plaintiff who had asked for an extension of time by one day and you are questioning the defendant and intend to suggest to him that an extension of one day is, in the reckoning of reasonable people, quite reasonable. In such a case it would be far better to suggest to him:
As a reasonable person, wouldn't you agree that a one day's extension of time is not very long?
Rather than: 'Wouldn't you agree that only an idiot would consider a one day's extension of time as too much to ask?' (Even if the circumstances showed that the witness or defendant was being idiotic.)
Concluding Remarks
In this brief discussion, I have set out what I believe are the underpinnings of
competent if not good advocacy in terms of four basic truths. It is by no means
the only truths in the specialist area of advocacy.
In this article also, I have not attempted to deal with the fundamental but more intricate aspects of trial advocacy, such as the art of analyzing case theory or the common place but very tricky business of cross-examination.4
At the end of the day, it is hoped that some of the discussions here will assist in at least sowing the seeds of thought on what goes into the practice and art of advocacy. More importantly, and perhaps more ambitiously, the discussions here will also serve to add to the continuing discussion amongst trial lawyers on the issue of advocacy standards. As trial lawyers, we must strive to be at least 'minimally competent'. As a teacher of advocacy, who is known in Singapore circles, has observed, '... it is no longer acceptable for any practitioner to represent a client in court in anything less than a professional manner ... A person who steps into the role of the advocate, whether it be as a solicitor or a barrister, holds himself or herself out to be at least minimally competent in that specialist area of activity'.5
Leslie Chew, SC
Khattar Wong & Partners
Endnotes
1 David Pannick, QC, Advocates (1993) p 2.
2 Trial by battle was only abolished from English Law
in 1819 - see 59 George III (1819) ch 46.
3 Thomas A Mauet, Fundamentals of Trial Techniques.
4 The Law Society runs an excellent General Skills
Advocacy Workshop annually, which deals with these and other more intricate
issues in trial advocacy. I recommend the Workshop to all lawyers particularly
young lawyers with five or less years experience in litigation.
5 Keith Tronc & Ian Dearden, Advocacy Basics for
Solicitors (1993) - see the Foreword by Justice George Hampel (as he then was).