Chapter 3 Truth

‘Truth’ is a tricky area.

Rightly or wrongly, adversarial advocacy is not really an enquiry into the truth.

The inquisitorial system of Civil Law, for example on the Continent in Europe, is judge-led, and seeks the ‘truth’ - generally, the judge decides what evidence to hear and asks the most important questions, and then adjudicates.

So here’s the point: for the advocates, the adversarial system creates a polite contest.

The contest is this:

1 while a judge or a jury will seek out the truth as best they can from listening to the evidence called by the advoctes,

2 instead the advocates use their skill to test the evidence,

3 and to control the way the evidence emerges,

4 and then they comment in closing on whether a case, having been tested, has been proved against the burden and standard of proof.

For the advocate, it is all about the test, and not necessarily the truth. Perhaps it should not be like this, but in reality this is what happens.

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What is the truth of an incident?

Truth of course is a large concept. Philosophers have written about it for thousands of years. Many would say there is no objective truth, that there are really only different perspectives.

However, if there is an objective truth, unfortunately adversarial courts do not always find it. This is why we often hear folk talking in pubs of ‘people getting off', which implicitly suggests a thing happened, but it was not proved in a courtroom test.

I'm only saying what the reality is. I'm not trying to be controversial.

And the truth is that the adversarial advocate is not really enquiring into the truth of an incident. In court, there is a well-mannered contest, in which there are rules, and it is possible to win, even in the face of seemingly overwhelming evidence if you play the rules better than your opponent, and above all, learn to be the more persuasive.

The system is supposed to work on the assumption the advocates are evenly balanced, and so they cancel each other out, leaving the tribunal to consider the evidence after it has been examined.

But the flaw in the theory is that advocates can have uneven skills........................................................................................................... and

usually do.

Your job is always to try to be more skilful in the art of advocacy than your opponent.

So, your job is to work at getting better, every day.

A good advocate can win a weak case, particularly if against a less able advocate.

In court, there is acting, and there are games of strategy. Maybe there should not be, but there are, every day, all over the country.

Witnesses often exaggerate in order to win, admitting no failings for fear they will damage their case. And encouraging the witnesses, or against the witnesses, are the advocates, whose job is not to give up, even when the case seems hopeless.

But for the good advocate, there is no such thing as a hopeless case.

ADVOCATES TRY TO WIN THEIR CASES WITHIN THE RULES,

IRRESPECTIVE OF THE TRUTH.

...and irrespective of that hopelessness.

And often it is never entirely hopeless for the skilful advocate.

Lawyers praise advocates who have succeeded with weak cases, not as a mark of the truth having triumphed, but as a celebration of the advocate's skill.

And remember, cases will often turn on what evidence within the rules an advocate has skilfully managed to keep suppressed.

Often, it can be more important when questioning witnesses to KNOW WHAT NOT TO ASK - to know what areas will get you into trouble with the witness - and so avoid them.

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So there it is - rightly or wrongly, an advocate's job in the adversarial courtroom is not strictly-speaking about finding out the truth. It is important to understand this, sad or illogical as it may seem, right from the outset of the advocate's career.

If not about truth, what then?