There are few comprehensive histories about how courtroom advocacy has evolved in this country and about the important factors that have shaped it. This may be partly because advocacy in court is usually regarded by its practitioners as an intensely practical activity, firmly anchored in immediate concerns. Nonetheless, an attempt can be made to trace how advocacy has changed, to examine some of the influences on its development and to consider what may well affect it in the future.
Chapter 2 starts with the roughness and uncouthness of much Tudor and Stuart advocacy, and continues with the timid reserve which to some extent replaced it in the late seventeenth century. These aspects began to be displaced by greater eloquence of distinguished eighteenth century judges and barristers â very likely themselves responding to greater refinements in the English language and awareness amongst the educated of its possibilities to persuade. Growing knowledge amongst the higher echelons of society about the classical literature and of Greek and Roman rhetorical style affected advocacy, especially before the House of Lords, when it acted as a court, for example in the long running impeachment trial of Warren Hastings, and also before special juries. Because of the influence of the classics and ancient rhetoric on advocates, which was still present, though weakening, well into the twentieth century, there is an Excursus (Classical Rhetoric), available on the internet (Historyadvocacy.âwordpress.âcom) about classical rhetoric, concentrating on Cicero and Quintilian who were much studied in Britain and North America. The ancient world also shows that styles of advocacy were not fixed and evolved due to a variety of influences.
The effect of contemporary poetry, used to awaken generous sympathies in jurors, and of literature, including that of Sir William Blackstone which may be regarded as such, in enriching vocabulary and providing advocates in the later eighteenth century with more allusions on which to draw is considered, as is the florid and emotional style, taken to new heights by barristers from Ireland. Contributions by prominent barristers to advocacy, conspicuously Thomas Erskine, who also did much to establish the moral basis for its practise, are described. Mention is made of previous cases becoming binding authority before courts in the eighteenth century, the doctrine of stare decisis, and the effects of this on advocates, who had to adapt their submissions to take account of this key change.
In the eighteenth century (Chap. 3) lawyers started to appear for prosecutors in felony cases. To redress the balance judges began to allow prisoners to instruct counsel to conduct examination in chief, cross-examination and argue points of law. The effects of this on advocacy, particularly the development of cross-examination and a more determined and aggressive approach by barristers on behalf of their clients, are examined. Advocacy in criminal trials which essentially became adversarial in nature, but remained short in length, became increasingly affected by rules of evidence. The lengthy campaign, and opposition to it, ending in the Prisonersâ Counsel Act 1836, to remove the felony prisonersâ handicap of not being allowed counsel on their behalf to address the jury is recounted. The Act gave prisoners the right to a full defence by counsel in felony cases, importantly including addressing the jury. Also described in this chapter is the limited scope for advocacy in civil trials in the eighteenth and early nineteenth centuries.
Next considered (Chap. 4) is the forceful advocacy for prisoners, often matched by counsel for the Crown that was a frequent result of the Prisonersâ Counsel Act 1836. It was usually delivered, as was advocacy in civil cases, with much melodrama and floridity of language before common jurors who, because of their often limited education, were especially susceptible to theatricality, intense appeals to emotion and allusions to religion, then very strong. How public opinion, developing rules of professional etiquette, and the judiciary came to limit the bounds of the forensic licence granted by the Act of 1836 is examined.
Scenes of discourtesy, and worse, between counsel and towards judges in court in the 1830s, 40s and 50s are described, as is what was the press and public reaction to them. Some reasons for this behaviour, and the poor quality of advocacy often associated with it, are offered, including the inability of some judges to control proceedings in court, drink and tiredness. Although not without some setbacks, the second Tichborne case in 1871â72 being a vivid example, conduct generally improved later in the nineteenth century, due much to evolving etiquette at the bar and a greater determination by its members to enforce standards,
Key changes in 1851 to rules concerning criminal indictments, which limited arguments in court about their validity, are outlined. Tentative conclusions are then drawn about the effect on advocacy of the reduction, in the first half of the nineteenth century, of the number of offences punishable by death.
The dominant style of advocacy before juries in the second half of the nineteenth century, up until roughly the 1880s, was declamatory, melodramatic and lachrymose. It was frequently marked by aggressive, intimidating and wide ranging â âblunderbussâ â cross-examination and also by long and repetitious closing speeches in the course of which strong appeals to emotion were made, often invoking the Deity and the Bible or the spirit of justice. (Special jurors, because they were usually more educated, would often be treated to more allusions to the classics references to history, and quotations from literature and poetry than common jurors.) A number of examples of this style are presented in Chap. 5.
Even though histrionics continued to thrive during this period, some leaders of the bar, including Hardinge Giffard (later Lord Halsbury), John Holker, (a future Attorney General), Charles Russell (who became Lord Chief Justice) and Edward Clarke, began to significantly change the style of advocacy. Their approach was quieter, more learned and less inclined to violent appeals to emotion, florid speech and to widely quoting from literature and verse. In the barâs tradition of copying what appeared to succeed, they began to be emulated by junior members.
Chapter 6 shows how opportunities for passionate appeals to emotion, flowery passages and histrionic gestures fell as trial by jury in civil actions declined with the establishment of County Courts, where the overwhelming majority of cases were heard by judges alone, and the Common Law Procedure Act 1854 which, provided both parties consented, permitted issues of fact in the higher courts to be tried by judges without juries. Judges had little taste for sensational appeals, floridity, and theatricality but did have a high regard for fact, law and logically structured argument. Accordingly advocacy before them adjusted and shortened in length. Some barristers lamented what they saw as the decay of forensic oratory, due to the reduction of trials by jury; others accepted the altered style that was required as a necessary adaptation to changed circumstances. Chances to address juries in criminal matters also reduced with the growth of summary trial before magistrates in the second half of the nineteenth century. Specialist statutory tribunals, formed to implement new regulatory legislation and to resolve disputes between the state and the subject, or between subjects, did not employ juries. Indeed the majority of them had little or no need for advocates.
The Judicature Acts 1873â75 much lessened prospects for winning civil cases by advocates taking points at the beginning of trials, based on principles of law developed over centuries, about inadequacies and defects in opponentsâ pleadings, but gave them more flexibility to bring new evidence and advance freshly thought legal argument.
Chapter 7 returns to criminal matters. After a long campaign, prisoners were given the right to give evidence on oath by the Criminal Evidence Act 1898. Advocates were placed in the position of having to advise clients whether they should step into the witness box. If they did, counselâs closing speech had to take into account the evidence they had given. No longer was an advocate free to suggest to the jury any story his ingenuity could devise as a possible explanation of the proved facts: In short it revolutionized the style of defence advocacy in many criminal cases. Skills in re-examination, necessary to minimise damage inflicted in cross-examination, became vital.
In both civil and criminal cases, advocacy at the turn of the twentieth century was affected by rules concerning the content of opening speeches. It was also influenced by having to accommodate increasing numbers of expert witnesses. Examination of witnesses, especially cross-examination, had become a much more precise and subtle art, far removed from indiscriminate and instinctual performances frequently seen earlier.
At the end of the nineteenth century and during the first quarter of the twentieth century the advocacy of Rufus Isaacs, Edward Carson, F. E. Smith and Edward Marshall Hall, who regularly opposed each other in court in greatly publicized cases, was an important influence on other barristers of the period and beyond (Chap. 8). The first three were the heirs of Giffard, Holker, Russell and Clarke, but who further advanced their form of advocacy employing a deceptively conversational or low-key approach and carefully planned often deadly cross-examinations. They avoided long and emotive closing speeches. Blunderbuss advocacy, unpredictable in its effect and often dangerous to its user, was replaced by the lethal precision of the sniperâs rifle. Marshall Hallâs advocacy, on the other hand, with its blatant appeal to emotion, sometimes sprinkled in tears, fell squarely within the tradition of nineteenth century histrionic advocacy.
In severely bomb damaged Second World War London, George Keeton (Chap. 9) wrote, in 1943, about âa silent revolution in methods of advocacy as practiced by the English Bar over the last fifty yearsâ.1 Changed standards of etiquette, professional rules and greater control exerted by judges over these years had led to a vast increase in courtesy in interactions with judges and between counsel. The conduct of prosecutions had also improved. They were generally no longer carried out in a sneering hectoring manner with witnesses mercilessly browbeaten or bullied. Dramatic types of nineteenth century advocacy, in which counsel was prepared to use mannerisms, tricks of speech and gestures to heighten the effects of their pleas to juries, was replaced by a conversational and matter of fact tone. The idea that to cross-examine meant to examine crossly had almost vanished. Appeals to juries were now to reason combined with a controlled, subtle and focused appeal to emotion. Jury trials in civil cases had continued to decline. Advocacy before judges was concerned with facts and the law, not oratorical flourishes. Fewer criminal trials before juries took place as the jurisdiction of the magistrates widened further. The more restrained and conversational style of advocacy before criminal juries may have been to some extent influenced by that of the civil courts, where the leaders of the bar appeared more often and increasingly without juries. Two of the most distinguished advocates in the first half of the twentieth century were Patrick Hastings and Norman Birkett. Their...