Chapter 24 Improving Advocacy

When practising to improve your advocacy, there is a well-tested system for constructive feedback from others. It was pioneered in the USA and as I mentioned in the beginning has in the last twenty years been exported throughout the world.

In 1994, it was imported from Australia to the English Bar by Justice George Hampel of the Victoria Supreme Court, and ever since has been the foundation of formal advocacy training within the Inns of Court.

It is very simple. But it works wonders.

In this book, we will call it ‘THE ONE POINT DEMONSTRATION'.

In an ideal world, students of advocacy will receive training in this method from their professional governing body. However, the basics of the method are not tricky or mysterious, and can be used between friends. Be careful of developing a bad technique. But practising something is surely better than doing nothing.

So have a go. Carefully.

Gather some colleagues. For each exercise, one is a witness, one is the advocate, one is a reviewer. The others just watch.

Use an old witness statement from an old case. Or make one up.

The advocate examines the witness for no more than five minutes. It can be direct examination or cross-examination. Throughout the exercise, the reviewer writes down the questions asked, not the answers given.

The reviewer then performs a one-point demonstration by following six steps.

No straying. Six steps. No more. No less. No variations. No padding it out. No waffle.

SIX STEPS.

So here is how it works.

You are the reviewer.

The first step is to identify ONE POINT on which to review.

Only one.

There may be hundreds, but we must stick to one point, and capture it bullishly in a single short sentence which we call the HEADNOTE. For example ‘I want to talk to you about keeping non-leading questions short and simple during direct examination' or ‘I want to talk to you about controlling answers in cross-examination.'

The headnote has to be short, pithy, and to the point.

The second step is to read back the questions asked by the advocate that you believe has led to the problem you have identified in the headnote.

We call this the PLAYBACK.

It is an odd thing to record the questions of the advocate, when so much of a lawyer’s training is to record the answers of the witness. It takes a little practise.

Please note that it is important to have a careful note of the precise words used in the questions, otherwise the advocate will often dispute your accuracy and therefore will dispute the validity of your assessment of any problem.

Playback does not always have to be a record of questions asked. The head­note could be about body posture or nervous habits. The playback would then be a short demonstration of the posture or habit.

Whatever it is, it must accurately reflect what the advocate did or said.

We now explain why what was done does not work.

It is the third step and we call it the REASON.

The reason is often obvious. But don't skip this step. It focuses the mind.

It tells the advocate why there was a problem.

Interestingly, it also tells the reviewer why there was a problem, and helps her articulate what up until then she may have only understood instinctively. Understanding something instinctively is no good when reviewing advocates - you have to be able to explain your instinct. And so the reason helps both the advocate and the reviewer toward a better understanding of advocacy.

Next comes the fourth step, the REMEDY, in which we explain how to put the problem right.

Often, this is not obvious. You have to know your stuff.

You have to think about it.

It is no good saying something does not work, and why.

What we need now is what will work and why.

What will work?

How do you put right the mistake you have identified?

How?

Think about this.

In the reason, you explain the problem. In the remedy, you explain the solution.

Often, the remedy is not easy, but at least it will have you thinking.

I want to keep talking about the remedy.

The one point demonstration is not just about identifying problems. It is about providing solutions. The exercise is pointless without a solution. Just saying something does not work is completely useless.

Completely. Useless.

It is the solution we want.

I've said it again on this page because it is really important.

Most people can tell you there is a problem. But not many can tell you how to put it right.

So let's use an example with the four steps so far.

Let's quote an imaginary review.

‘My headnote is this: I want to talk to you about how you must always ask leading questions in cross-examination.

In my playback, I remind you that you asked the following three questions: Where was the gun?

How often was it fired?

Was anyone hurt?

The reason for always asking leading questions in cross-examination is it gives greater control over the witness who may otherwise answer open questions unpredictably.

The remedy is to tell the witness what you want the witness to say, one fact at a time, and add words to the effect of ‘that's right isn't it?' at the end - we call this type of phrase ’the tag' - so turning the statement into a question, like so:

The gun was in John's hand, wasn't it?

It was fired three times, wasn't it?

Joe was hit with three bullets in the head, wasn't he?

Let me demonstrate the questioning....'

And so we come to the fifth step, the DEMONSTRATION.

Having explained how to put the problem right, you now show how it is done.

This means the review is not some airy-fairy lecture. It has visual impact which can later be emulated. The review is not ‘theory’: it becomes an exercise in ‘practice through practise’ - there’s that word again, using it in both senses.

A demonstration means the review is not dry and boring. The review now has life, and the advocate will always be able to recall in his mind's eye a visual presentation of how the problem is cured, because it has been demonstrated.

Demonstrations are a tricky business. You now really, really have to know your stuff. They can go wrong! You have to be prepared for embarrassment. Some senior advocates will run a long way from any risk of embarrassment. Don't let them off the hook. Senior advocates have a lot to teach. Encourage them to risk the embarrassment and help the profession.

Tell them, every time: show me.

The advocate finally repeats the demonstration in the sixth step which we call the REPLAY. The lesson is firmly learnt.

The replay lasts only a minute or so. It is designed for the advocate to get a feel for the solution, and not just to hear it or see it.

The advocate emulates the demonstration. By doing it, the solution is absorbed, rather than simply noted.

And not just by the advocate.

It is learned by those watching as well.

This is really important - with this method, those watching can learn just as much as those doing.

One point at a time. Demonstrated lessons firmly learnt by all.

The one point demonstration.

Try it, and tell me I'm wrong.

Here is a summary of the one point demonstration technique:

Advocacy should be presented for no more than 5 minutes.

A review should last no more than 5 minutes.

Improvement is as good as guaranteed.

Please note you can use the one point demonstration to improve all aspects of advocacy. It need not be limited to witness exercises.

An advocate can offer for review an opening speech, or a closing speech, or a legal argument supported by a skeleton.

The one point demonstration will work very effectively for all aspects of courtroom skills.

But remember to stick to the six steps.

One other thing - USE A VIDEO CAMERA.

Most people have one now, often on their phone. Or can borrow one.

Make a speech to camera, play it back... and wince...

Look at how others see you. It can be a bit of a shock. But learn from it.

Identify what you don't like about yourself, about your posture, about putting hands in your pockets, about tics, scratches, rocking to and fro, about looking slightly mad.... and change it.

Record your advocacy on a video during a one point demonstration review. And then look at the performance. Get a colleague to look at it too. See what the colleague thinks. See what you think.

A video recording is a powerful learning tool. You can see what you don't like and do something about it. It allows you that rare if embarrassing treat - to see yourself as others see you.

If you do not arrange one point demonstrations privately among your colleagues, and if you do not put yourself on camera, then what's left?

What's left is constructive criticism of your performance in COURT.

By whom?

By your opponent.

By other advocates who were in the well of the court.

But there is a problem here. Advocates usually feel it inappropriate to offer constructive criticism to each other. It is thought cheeky.

Unfortunately, this means there is a vast army of lawyers out there who have rarely ever been reviewed. Bad habits become entrenched, obvious for all the world to see, but no one dares say anything.

The solution is simple: ASK THE OTHERS WHAT THEY THINK.

Certainly there will be crushing and sometimes pompous criticisms from advocates whose own skills you don't rate particularly highly. However, generally speaking, the criticism of other advocates is measured and extremely helpful. It should be actively sought. We don't have to agree with it all the time. But it provides that crucial understanding of how others see us, and of what works and what doesn't.

So ask.

And then you can walk away, unlikely to see your reviewer for some time, so that the pang of any mild embarrassment is unimportant when weighed against the fact you have learned something.

It cannot be stressed enough how important it is to seek the judgment of others.

Pupil barristers and trainee solicitors are rarely seen in action in court by their pupil supervisors and principals.

It really is a tiptop idea while still junior with little precious status to lose, to ask what others at court thought, and to set up in chambers or the office regular one point demonstration workshops.

By STEALING ALL THE BEST IDEAS from seniors, by allowing them to teach you, ascent up the slippery slope of advocacy excellence can be rapid indeed. Techniques and ideas which a senior by trial and error took years to perfect, can be taught in an early evening.

It is crazy for advocates to improve advocacy entirely alone all their lives.

Have the courage to risk making a fool of yourself in front of others and the rewards will be many and immediate.