Non-Trial Advocacy

Stephen Nathanson

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135340353
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Lawyers use non-trial advocacy skills in court for pre- and post-trial submissions. They are easier to learn than trial advocacy skills, and are much more relevant to the work of most new lawyers.

This book examines all key aspects of criminal and civil non-trial advocacy, including bail applications, pleas in mitigation and interim applications made during the course of civil actions. Readers will learn the strategies and techniques of non-trial advocacy through seven realistic case studies: the lawyers involved discuss their strategies and deliver their arguments; the judge makes a decision; and the strengths and weaknesses of the arguments are then analyzed.

With this innovative, case study approach to teaching advocacy skills, Non-Trial Advocacy provides an insight into how lawyers think and how they translate their strategies into courtroom action. The book concludes with a discussion of ethical conflicts involved in the practice of advocacy and how these affect the quality of lawyers' work in this field.

CHAPTER 1

ADVOCACY SKILLS

This chapter describes several elements and techniques of advocacy that are particularly relevant for non-trial advocacy. It is divided into two sections. In the first, it describes briefly four key elements of effective advocacy. In the second, it describes 10 techniques of effective oral advocacy that readers should find useful in doing non-trial advocacy.

FOUR KEY ELEMENTS OF EFFECTIVE ADVOCACY

Advocacy in court is persuading the court to accept your arguments and reject those of your opponents. Because advocacy is such a complex skill, dependent on so many other skills necessary to legal practice, it is useful to keep in mind a few basic guiding principles that apply to every form of advocacy. They are referred to here as the four key elements of effective advocacy.

1 Achievable goals; flexible strategies

It is important to identify clearly why you are going to court, what you intend to achieve there and how to go about it. To use an example, if the goal is to attract a non-custodial sentence for your client, pleading not guilty and going to trial in the faint hope of getting an acquittal is usually not the best way of achieving that goal. Defendants who try their luck with a trial and are convicted are treated less leniently than those who plead guilty. Pleading guilty and preparing a strong plea in mitigation is, in many cases, a better strategy for keeping your client out of jail. Although advocacy is about winning in court, you cannot win whatever your client wants you to win. Arguments need to be based on goals that are achievable. You should be reluctant to go to court claiming a million dollars in damages when you have only enough evidence to prove a hundred thousand.

Being a form of conflict, litigation is unpredictable and can change direction at any time. Lawyers need to be flexible, changing strategy or even adopting more realistic goals. Advocacy cannot be separated from other legal skills used in litigation, so a change in strategy can mean a change not only in courtroom strategy but in the entire strategic direction of the litigation. Consider this scenario: in an application to court brought against your client, your opponents ask for several different orders. The judge suddenly comes up with a strong argument against one of the orders your opponents are seeking that neither you nor they had anticipated. You pounce on the argument and make it your own. Just as suddenly, your opponents, somewhat flustered, ask for a short adjournment to consult their client: they are considering abandoning that part of their application. So you consult your client. You remind him that there are weaknesses in your case and now might be the perfect opportunity to bring a favourable end to the litigation by negotiating from a position of strength. Your client agrees. You suggest to your opponents a one week adjournment to sit down and negotiate. They agree and, shortly thereafter, a settlement is successfully negotiated.

2 Thorough preparation

If you are not thoroughly prepared, you will lose unless you are extremely lucky, or the other side is also unprepared—a scenario you can never count on. Thorough preparation requires the lawyer, first and foremost, to outline the right strategy to achieve the goal. Then, it requires putting together the appropriate facts and law to carry out that strategy. This does not mean putting together all the facts and all the law but, rather, being selective, so that only the relevant facts and law are used. It also means anticipating counter-arguments put by the judge or your opponent. Thorough preparation involves putting in the necessary time, and maintaining a sharp mental focus prior to, and during, court.

3 Effective communication

Ensuring that your submissions are understandable is critical. Make your argument clear and easy to understand. Effective communication means not only speaking, but also listening and observing. You need to be keenly aware of signals, whether spoken or unspoken, that the judge is giving out so that you can adapt your submission accordingly. For the same reason, you also need to listen carefully to what your opponent is saying. Effective communication is not just reciting a speech. It is delivering your message clearly, and reading and interpreting the verbal and non-verbal messages you are receiving.

Part of effective communication is knowing your audience. If possible, you should learn something about your judge. It is helpful to read the judge's previous decisions in similar cases and to ask other lawyers about their experience in front of that judge: do they know of any particular inclinations? Are they aware of how the judge prefers counsel to proceed in court? Also helpful is knowing the details of the judge's practice experience, likes and dislikes and favourite causes. Knowing the judge enhances one's ability to tell an appealing story to that judge.

4 An appealing story

If the argument is built on the three elements above, you have achieved 90% of what is required. If, in addition, the argument is appealing to the judge, then you have completed the job.

To be appealing, the argument should have both logical and emotional appeal. On a logical level, facts and law should be presented in such a way that the judge is compelled to agree with you. For example, when you argue by analogy, that is, comparing your case to another (decided) case, there must be enough relevant similarities in the facts so that the judge will be persuaded. If there is a legal principle that is in your client's favour, you need to organise the facts to fit that principle. If there are conflicts in the evidence, you need to lay them side by side and show how they ought to be reconciled in your story.

On an emotional level, your argument should be constructed so that, no matter how unattractive your client may seem, it appeals to the judge's humanity. To achieve this, you cannot alter the facts, but you need to present them in ways that enhance the humanity of your client:

Your Honour, the defendant's conviction for trafficking has brought home to her the seriousness of her act. She trafficked in drugs, it is true, but only to support her own addiction. Free from drugs for the last few weeks, she can see her way out of this life. Your Honour, I am not suggesting we are dealing with a flawless human being, or that she will be free from the temptation of drugs forever. No addict can make that claim. Nevertheless, she does have qualities and abilities as described in the pre-sentence report that suggest strong reasons why she will not return to that life…

When you reach the end of your submission, what you ask the judge for should be the natural outcome of your presentation—just like the proper ending to a good story. No one cheers for the villain; everyone wants the hero, or underdog, to win in the end. The hero may have a tragic flaw, so the outcome—the ending to the story that you advocate—should fit the way the judge views how this tragic hero should be dealt with. You need to present your client's case to the judge in a sympathetic and appealing way. Litigation is rarely so clear cut as to involve conflicts between villains and heroes, but making your client's story human and prescribing an appropriate ending to it will help to create sympathy on the part of the judge.

TEN TECHNIQUES TO REMEMBER WHEN DOING ORAL ADVOCACY

The following techniques are based on my observations as an advocacy teacher. They are particularly applicable to non-trial advocacy.

1 Speak slowly, loudly

Many lawyers just learning to speak in public speak too fast or too softly. This is usually caused by nervousness and lack of confidence, two conditions that afflict almost everyone. People often speak too fast because they want to get the whole thing over with as quickly as possible. People often speak too softly because they lack confidence in what they are saying. Nervousness and lack of confidence can be alleviated in a number of ways:

• be thoroughly prepared and confident that you are;

• take a deep breath before speaking;

• conjure up a benign image of the judge;

• force yourself to pause after a point This helps to slow you down and gives you time to think. It also allows the judge to absorb what you have said or to take notes;

• be comfortable with silence: refrain from breaking it unless you have a good reason;

• when you see the judge frown or strain to hear, raise your voice and slow your speech;

• if your mind goes blank, say: ‘My Lord, I wonder if I might have a moment.’ Take a breath and review your notes;

• force yourself to speak more slowly and to stop occasionally;

• practice with colleagues and ask for feedback.

2 Maintain eye contact

It is important to maintain eye contact so that you can gauge what the judge is thinking. For example, if the judge looks confused, this might necessitate a pause where you could say: ‘Perhaps I haven't expressed that point very clearly.’ If the judge, listening to a point, nods in agreement, you might say: ‘I can see your Honour is with me on that point I'll move on…’

New lawyers sometimes fail to make eye contact because they are reading from a prepared text. Reading is not communicating. Most judges find it difficult to follow an argument that is being read aloud. Do not read from a prepared text. Jot down the major points on a single sheet of paper to remind yourself what they are. Rehearse your argument well so that you know it well. Even if you are inexperienced, you will be more persuasive speaking haltingly than reading from a text

Many experienced counsel outline topics with highlighted headings of each topic or sub-topic. These can be supplemented with factual points and key phrases or ways of articulating key arguments that are written out in full. When counsel have dealt with a topic, they look down at their notes to ensure they have not left something out. This helps counsel to regain composure and avoid reading. It also helps them to think flexibly and modify the presentation in order to address whatever queries the judge may have.

3 Be attentive to personal appearance and behaviour

Some advocacy experts suggest that the reason advocates need to be conservatively dressed in court is so that they show respect for the dignity of the court This is undoubtedly true. But, it is also true that, as an advocate, you should do nothing that will distract the judge from the content of your argument. You do not want the judge to be distracted by your rings or jacket when you are making your best point.

For the same reason, you should control nervous fidgeting, facial tics and other idiosyncratic gestures when you speak. Take the opportunity to view yourself on video or in the mirror when you speak so that you can identify and reduce any nervous mannerisms you may have.

At all times, be unfailingly courteous to the judge and to opponents. Make it part of your daily mode of operation. Remain restrained and dignified during your opponent's submissions, no matter how provocative your opponent's statements may be. If your opponent has misstated the evidence, you will have an opportunity to reply. Like inappropriate dress, discourtesy is distracting. If you show resentment, this will distract the judge from your argument and focus attention on you. The last thing you want is for the judge to judge you and not your case. If getting the sympathy of the court is one of your main goals, then discourtesy is obviously counter-productive.

But, what is discourteous and what isn't? There are obvious forms of discourtesy that exist in and outside the courtroom. But there are some peculiar to the courtroom. For example, using standard forms of courtroom expression is helpful in avoiding discourtesy.¹ Because different jurisdictions have different standard forms of expression, these should be learned through observation in your local courts.

4 Keep it simple

When counsel starts off with ‘Your Honour, there are five issues that need to be dealt with here.’, the judge is more likely to groan inwardly than sit up and take notice. Students often wonder, what is the optimum number of issues? My answer is ‘one’, and sometimes ‘two’. It is a well known fact that, as the number of issues increases, the judge's enthusiasm for your argument decreases.

If there are many issues in a case, how does one distil them? Some advocacy experts advise keeping two of the most important ones, and discarding the rest. There may be a better way. Chances are many of the issues overlap or are similar. To identify the one or two key issues, you need to be able to look at the case as a whole. Then, you should be able to summarise the main argument in one sentence. This argument should appeal to the judge logically and emotionally, yet be uniquely applicable to your client.

When you follow this process, you are actually developing the essence of the argument or a theory of the case. A theory of the case is the story that appeals logically and emotionally to the court.

Some examples of case theories in non-trial applications are as follows:

• ‘My client should get bail because there are holes in the prosecution's case and he is the sole breadwinner.’

• ‘My client should not receive a prison sentence because he is more likely to refrain from petty crime in future if he goes into an effective drug rehabilitation programme.’

• ‘My client should get summary judgment because the defendant's affidavit is filled with inconsistencies and excuses.’

• ‘My client should get an interim injunction, because he can never be compensated for the damage to his business that the defendant is causing.’

5 Think structurally

Once you have identified a theory of the case, you can structure your presentation to ‘prove’ the theory. Individual points, which appear to be unrelated, can be arranged so that they form a supporting framework for your theory. Every theory or argument requires a structure and, in this book, you will find various structural models to help you put together your argument. These models are intended to be flexible guides to preparation and not rigid protocols. They should not be slavishly followed.²

6 Lead the judge

When presenting a case, it is counsel's responsibility to lead the judge, not the other way around. This is an aspect of effective communication with which many new lawyers have difficulty. It shows up particularly in the way they use documents to support their argument Documents are always part of the argument in civil non-trial applications and often in criminal ones. It is counsel's job to lead the judge in reviewing the various documents at criti...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• CONTENTS
• Preface
• Introduction
• 1 ADVOCACY SKILLS
• 2 BAIL APPLICATION
• 3 PLEA IN MITIGATION
• 4 THE CIVIL LITIGATION PROCESS AND NON-TRIAL ADVOCACY
• 5 SETTING ASIDE A DEFAULT JUDGMENT
• 6 SUMMARY JUDGMENT APPLICATION
• 7 APPLICATION FOR INTERIM PAYMENT
• 8 ETHICS AND THE QUALITY OF ADVOCACY
• Bibliography
• Index