The elements of a skilful advocate
By Georgina Gibbs
Michael Mansfield QC presented the first in a series of advocacy lectures provided by the SEC to help advocates improve their advocacy skills. If the message of his lecture was to engage the audience without reading from a script, then Mansfield demonstrated that perfectly in a succinct 30 minute talk, which he delivered without a single downward glance to any notes, if indeed he had any. There then followed an audience Q & A session chaired by Anesta Weekes QC during which more pearls of wisdom were distilled from an advocate of 42 years’ experience, described by Leader of the Circuit, Stephen Leslie QC, as an advocate who is regarded as one of the finest of his generation. The central plank of Mansfield’s lecture was that “the art of advocacy was to communicate a message about which one felt strongly.” He highlighted a number of primary elements of a skilful advocate.
First, a sense of passion for the case or client on whose behalf the advocate fights. A passion which Mansfield suggested was easily extinguished if speeches or submissions were read out verbatim. Objectivity, whilst important in Court, was not necessarily to be extended to the relationship with the lay client, wherein very often what was required was for the advocate to demonstrate belief in them, best achieved by enabling the client to talk freely to build up a mutual trust.
Second, thoroughly knowing the brief, not simply to have all the relevant material at one’s fingertips, but because judges and juries respected it. More significantly, witnesses respected it, such that if a witness was unsure just how much the advocate knew of their life and conduct, it gave the advocate the upper hand, thus enabling control of that witness. The capacity to control a witness was plainly paramount.
Third, the delivery and presentation of advocacy, making direct but appropriate eye contact with the tribunal, changing pace or subject matter to keep the audience’s attention and learning to read non-verbal signs were always useful skills.
Fourth, researching the tribunal in the case of a judge or appellate court could be very informative, either by sitting in and observing or asking the usher for helpful tips.
Fifth, having “grit between the teeth”. In appropriate circumstances, it was essential to have the confidence to put one’s foot down if the tribunal was being unreasonable or not listening. At the same time, it was imperative to keep one’s anger in check and to perceive when a tribunal’s frustration was due to repetitious and patronising submissions.
These five general aspects of advocacy aside, Mansfield suggested that a capable advocate was also one who was prepared for every eventuality, so in the event that a particular direction taken was not working, it could be revised whilst on one’s feet without making it obvious to the audience. Oral development of written advocacy was more effective if it had a surprise element in its presentation. Articulating points in a different way to their presentation on paper, adding another dimension and not advancing all exemplifications in writing in advance was the best course as there would otherwise be nothing further to advocate or reveal.
It was beneficial to have a hypothesis about the case, identifying in advance what it was sought to be achieved and then looking for evidence to fit the hypothesis. Practically, to extract the relevant supporting points from that day’s advocacy into a working document which would ultimately become the closing speech would enable fewer points to be missed and would also save time at the end of a case. At this juncture, having the humility to examine critically one’s own performance, to assess what went well but more importantly what did not was fundamental to improvement.
Mansfield recommended two books on advocacy: The Old Devil (about Clarence Darrow) by Donald McRae and Six Great Advocates by Lord Birkett, which an advocate seeking to improve might find constructive. Being a proficient advocate was ever more necessary post-Carter, particularly in light of incoming regime change. Mansfield acknowledged that it was currently much harder to make a living and that advocacy would be ever more important if the ‘one case one fee’ scheme were to be implemented.
Having been a legal aid lawyer for the majority of his career, Mansfield spoke of his specialisation in forensic science and lamented the lack of training and education in that area for both the Bar and judiciary. He said it was important that people were not blinded by science and a return to basic principles was often required. The final message of his talk was that the criminal justice system had changed but not for the better. Fundamental principles had been undermined and the “role of the lawyer had become marginalised.” In such times, good quality advocacy was therefore of the essence. We might all improve in this regard following this most constructive of lectures.