Chapter 2 Learning Advocacy

Advocacy is a skill.

The skill of persuasion.

It is an art, not a science.

It is not about forcing people to agree with you.

An advocate persuades - she makes people want to agree with her - and persuasion takes skill.

And like any skill, ADVOCACY CAN BE LEARNT.

Up to a point.

It used to be said that advocacy cannot be taught at all, that it can only be learned through a mystical process of quasi-osmosis, where a pupil will unconsciously absorb these skills from mere proximity to a supervisor, like the skills are a type of flu. Nonsense. But like any skill, you can only be taught some of it - maybe a lot of it - but not everything - at some point you will have to make your own way over what we might call the ‘advocacy keyboard'.

No one can be taught to be a brilliant advocate just as no one can be taught to be a brilliant pianist.

Brilliance requires talent.

Whether any of us have talent is in the gift of the Gods. Good luck with whether you have talent - it will take seven years of practice before you know.

However, we can be TAUGHT COMPETENCE in advocacy.

Competence is...well...not making errors.

We can be taught how not to make errors.

Simply that - no more complicated than that - no errors.

Just as most people can be taught to play the piano, so too can they be taught advocacy. An error-free performance on the piano, like perhaps a youngster playing Beethoven’s fairly simple Fur Elise, is creditable, will raise murmurs of approval, and generally cannot be much criticised. The youngster may not be destined to be a brilliant pianist, but an error-free Fur Elise is something most youngsters can be taught to play, even if a little woodenly.

In the same way, we can learn an error-free performance in court.

But unlike the pianist, an error-free performance in court is something more - it is highly unusual.

When I see one in court, I am tempted to ring church bells.

Advocacy without errors is no small achievement.

As with any skill, PRACTISE is what is necessary.

And by ‘practise’, with an ‘s', I mean the verb for getting up and repeatedly doing a thing until you get good at it - note the different spelling from ‘practice’, with a ‘c’, which is the verb for carrying out a profession.

Lawyers love distinctions like this - if you don’t get this one, resign already.

Reading books like this will be perfectly useless in the absence of practise.

We learn advocacy by doing.

So practise.

Practise. Practise. Practise.

The ideas in this book are for trying out. If something does not work for you, form that opinion after you have tried it - not before. There will be suggestions you disagree with, but what we must avoid is an armchair debate.

TRY THINGS OUT - then debate them - not beforehand.

Advocacy should involve experimenting.

Regularly.

Trying to improve existing skills.

Trying to create new skills.

Don't sit around. Get up and do.

Avoid intellectualising, roll up your sleeves, and step up.

Practise in front of the mirror.

Practise in front of friends.

Practise to and from work in the quiet of your mind on the train.

Don’t be shy to talk out loud, to yourself, honing your skill - it is not madness, if in private - I guess just don’t do it in the supermarket or pubs.

Always be looking for ways of

phrasing questions,

turning phrases,

encapsulating arguments,

controlling witnesses,

and more - don’t ever stop wondering.

Think new ideas - work on them, and have the courage to try them.

It is astonishing how few have ever read an ADVOCACY BOOK.

There are large academic texts available from the US, which are sometimes avoided, because they can appear dense and intimidating.

However, they can be very good. Really.

Try Fundamental Trial Techniques by Thomas Mauet. It is a bit heavy­going, but thorough, and has loads of ideas.

Try also George Hampel’s Advocacy Manual, from Australia, which is brim full of ideas and fun.

And of course, there are many thinner contributions which offer advice, and particularly which quote from brilliant past cases. The cross-examination of Oscar Wilde by Edward Carson is a powerful read. Snippets of other less famous cases are instructive and often amazing.

Surely every advocate should have read:

Richard Du Cann The Art of the Advocate

Francis Wellman The Art of Cross-examination

Please - have a look for them now.

The modest aim of this book is to teach you competence.

I am hoping after you have absorbed the ideas here, and then put them into practice, you will play advocacy’s Fur Elise without mistakes, even if a little woodenly at first.

It will then be up to you how good you get, and in time, as you become more sophisticated and fluent on the advocacy keyboard, you will learn for yourself whether you have the talent of an Abraham Lincoln or Marshall Hall or Clarence Darrow.

But before we can run, we must walk.