Advocacy in present-day courts

The brave words above about the role of advocacy in legal orders

⁷⁴ 290 and 291 White.

⁷⁵ 290 White, 28 and (for the quotations below) 35.

⁷⁶ 110 Hariman, Preface and first essay, in 219 Popular Trials.

Court procedure has changed a good deal, not least in those â€?adversarial’ jurisdictions that ought particularly to favour advocacy in support of opposing parties; and the changes have generated doubt and argument as to the continuing usefulness and relevance of oral advocacy. In a nutshell, jury trials are becoming an exception, and more and more litigation is heard exclusively by a professional judge or panel of judges. They are, we are told, less easily swayed by emotional appeals than laymen; they are more inclined to judge (to the satisfaction of the academic jurists) on â€?pure law’; and they are in a hurry, having vast cause-lists to get through, exactly as Marcus Aper is made to say in the Dialogusd¹ That is especially the case in courts of first instance: appeal courts (Anglo-American ones at least) exclude the lay jury anyway, and though they do not altogether exclude the barrister his role in them is mostly confined to arguing jurisprudential points. The impression is, thus, easily gained that the rhetorical side of advocacy is more and more confined to criminal proceedings, just as we are often told was the case in Roman times. In fact it sounds just like the common account of the fate of advocacy in Roman antiquity, that as indices turned into functionaries and the old ordo iudiciorum gave way to cognitio extra ordinem the market for emotive advocacy dried up. That argument, in respect of antiquity, is the one that this book seeks above all to controvert, and one way of attempting to do so is to try to show that things are not so clear-cut in the modern case, especially if advocacy is allowed to comprise not just purple passages and histrionic gestures but the whole art of persuasion - choosing the telling arguments, ordering them cogently, knowing when to invoke procedure, and so on.

In place of a survey of the role of advocacy and controversy about it in modern jurisdictions, which would be a huge business, I quote as a sample some discussions about advocacy in contemporary American appellate jurisdictions.^{[60] [61] Thus, according to Woodward,[62] advocacy is on the wane in US appeal courts. In Oklahoma oral argument is no longer a right except in capital cases (interesting, that: when the crunch really comes...), otherwise it is at the discretion of the judge; and the reason, there and elsewhere, is stressed to be not scepticism as to the value of oral argument but sheer shortage of time. On the other hand, a statistical study by Wasby of the views about oral argument held by judges and barristers in the US Court of Appeals for the Ninth Circuit[63] concludes, in part, as follows: �There is a tension between maintaining a practice which is not only an “amenity” but also is believed to have considerable importance for both appellate judges and the attorneys who practice before them, and the need to adjust to the “real life” situation.... Adjustments have been made but appellate oral argument is in no danger of being extinguished.’ As to the Supreme Court,[64] down to the 1950s it allowed each party an hour for oral argument; now it is down to half an hour. Yet Justice Rehnquist in 1986 wrote that �oral advocacy is probably more important in the Supreme Court of the US than in most other appellate courts’, because, he said, that court gets the most doubtful cases, and that is where both the problem and the truth best emerge through the clash of skilled and hard-fought argument. �A good oral argument is in the finest tradition of our profession.’[65]}

When, therefore, we direct our minds to advocacy in the ancient legal order we are not dissecting a dead duck. There are many differences, of which the most significant is that in modern systems the advocate is also jurist. But as advocate his role is to convince, now as then, and that role is most important in �discretionary situations’, where there is a chance to persuade the court that this line of conduct is available to it as well as that and that this line is to be preferred.

4.