Chapter 4 Winning

Being an advocate is about WINNING WITHIN THE RULES.

Perhaps it shouldn't be.

But it is.

The goal is to win.

And the means of winning is by being persuasive.

We each strive, and should strive, to win, but always, always, always within the rules.

There are the rules of evidence and the rules of law. You are assumed to know these. Nothing more will be said about them here.

It appears to me there are also three primary professional rules.

These are really attitudes of mind. I am not trying here to rewrite the Codes of Conduct for solicitors or for the Bar. The Codes need careful reading and you are assumed to know them. I am simply emphasising the seemingly most important beacons of integrity which ought to burn bright in every lawyer, and should guide the way we think.

And I think there are three beacons.

They are commandments of behaviour.

The first is THOU SHALT NOT MISLEAD THE COURT.

You are assumed to know this.

It is a long subject and will have been studied at law school.

Always remember, if in any doubt as to whether you are about to mislead the court, you must consult colleagues and if necessary your professional telephone help-line, which you ought to know off-by-heart, no kidding - to this day, I can still recite it.

Always consult.

Misleading the court is serious misconduct and will, and rightly should, lead to formal proceedings of censure.

For God's sake, DO NOT LIE.

Even if it means you will win the case and you think no one will find out.

Don't ever say something you KNOW IS NOT TRUE.

Ever.

And I mean EVER.

Are you listening - I said EVER.

If you tell one lie, and by this I don't mean mentioning something which may not be true, which is unclear, but instead you KNOW it,

KNOW - KNOW - KNOW IT, no matter how small a teeny weeny lie, you should never step into court again.

NEVER EVER AGAIN.

I mean it. I really mean it.

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Witnesses might lie. Criminal defendants often lie. But an officer of the court - and that's what you are - is upon her honour, and never ever ever ever lies. The whole system collapses if you cannot be trusted not to tell lies for case advantage. You must be trustworthy to the judge, to the jury, to your colleagues, as without trust you cannot be persuasive, and if you are caught out on just one occasion, no one will ever believe you again.

And they will never let you forget.

May the ground open and swallow you, may lightening bolts cascade from the Heavens, may the monsters of Hades surface and drag you down to Hell's darkest dungeon, if you do it even once.

Just don't do it.

I won't say anymore about it as it is so huge an issue, it need only simply be mentioned to make the point of how important it is.

The second rule however is not such a formal one. But is it pretty much just as important.

THOU SHALT NOT USE SHARP PRACTICE WITH YOUR COLLEAGUES.

This is a difficult area. You have a duty to the client. But equally, that duty cannot be fulfilled if you are sharp with your colleagues as they will not trust you, and this will make running your case to the advantage of the client very difficult.

We are not talking about lying here. We are talking about being nasty, evasive, weasily, too clever by half, mealy-mouthed, disingenuous, and manipulative.

At all times, ACT WITH HONOUR.

Generally, the trick is it is better to refuse to be drawn on what you will do, it is better to say nothing and make it clear you are saying nothing, than to say you will do one thing and then do another.

If you say you will do something, then do it; if you say you will not do something, then do not do it.

If you wish to raise a matter of law, give your opposition at least some notice. If you have legal authorities on which you will rely, alert the opposition early, not at the moment of submission.

Maintain POLITENESS AND CLARITY.

A rule of thumb is it is best to deal with your opposition, as you would want them to deal with you.

It is often a question of how it is done, not what is done.

Be Henry V not Richard III.

And if you don’t get it, they’re plays by Shakespeare - look them up.

So, why not confound the opposition?

The answer is clear. As advocates, we spend our working lives together. Clients usually come but once or twice. However, we encounter each other all the time. It is professional suicide to have a reputation for being sharp. Reputation travels quickly. Lawyers love to gossip. There will come a time when meeting a new advocate, we see eyes narrow, and inexplicably co­operation is withdrawn. Sadly they have heard about us.

In Britain and Ireland, and most of the Commonwealth and Common Law world, we rightly pride ourselves on the level of co-operation between advocates against each other. Outside the courtroom, decisions are taken which speed up the smooth running of trials and allow the parties and the court to focus quickly on the real issues.

Long may this continue.

Don't blow it by being sharp.

And by working together on the issues, without being thought a cheat, actually your opposition will often assist you - up to a point - and this means you will present your case more effectively. There is a sort of chivalry afoot where, as knights in legal combat, we give each other a sporting chance, which allows your best points to be advanced, rather than to be bogged down in robing room squabbling.

And if the tribunal sees you are fair-minded in how you deal with your opposition, to its mind you become more reliable - and if reliable, it will give you its ear - and of course, if it is inclined to listen to you, then you can be more persuasive - which is what you are paid to be.

Please don't confuse this with selling your client out to keep in with your lawyer friends. This is not what is being suggested.

Your duty to your client is paramount, but remember, it must be within the rules. The rules require that you do not mislead the court. In the same way, there is an unspoken rule that you must not deliberately obfuscate your colleagues.

Don't lie. Don't u-turn on what you have promised, without very, very good reason - which you must then explain fully. Don't say things intending to renege on them later.

As I say, act with honour - it is better to say nothing, and point out you are saying nothing, than to say something you later deviously change.

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The third rule is this: THOU SHALT ALWAYS TRY TO THINK LIKE THE TRIBUNAL, not like the client.

Why? Because if you do this, you will automatically become less partisan.

Being perceived to be less partisan is really very important. You will become more reliable in the eyes of the judge or jury and your later arguments are more likely to succeed.

There is all the difference in the world between representing someone and taking sides. Your job is to represent, with caution - your job is not to shoot ‘em up not in the style of a hired gun in bad b/w B-movies.

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You should try to take decisions with this thought in mind:

What will the judge think she should do about this problem? Or

What is the jury likely to make of all this: of the general circumstances of the case, or demeanour of the defendant, or the presentation of his mother as a character witness?

The thought should not be:

What do I want the judge to do?

nor is it

I wonder if I can get this past the jury?

nor is it

I'll have a go.

Or another way of looking at it is ask yourself:

IfI were the tribunal, what would I think?

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Let's ask it again:

IF I WERE THE TRIBUNAL, WHAT WOULD I THINK?

The question is not: what would the client like me to have a go at.

The thing to avoid here is trying to think like the client. You are paid to predict and influence what will happen in court.

However, there is sometimes a tension created by the client appearing to tell the advocate what she wants done in court. Remember, without becoming arrogant, you will usually know what is best for the client if you can develop an understanding of how the tribunal thinks. If we all did everything clients insist upon, court could descend into a circus.

Your job is to straddle the fine line between pleasing the client and pleasing the court. Pleasing the court will usually benefit the client. Do not roll over, but at the same time do not undermine the entire courtroom process by becoming the unthinking mouthpiece of a difficult or inexperienced client. If you can anticipate the way the tribunal is thinking, you can craft so much of your presentation to meet its expectation, soothe its concerns, and be persuasive.

You are the one with the training. Don’t forget it.

If we follow the rules, then within their constraint, it is your job to win.

The constraining rules are the rules of law and evidence, the codes of conduct, and the rules of advocacy. You're assumed to know the rules of law and evidence. You’re assumed to know the codes of conduct. But you'll be learning the rules of advocacy throughout your whole career.

So, within those rules, it is your job to win.

But not at any cost.

You must keep the three beacons burning - don t mislead, don't be sharp, always try to think like the tribunal.

And with them burning, now you must fight your case. And really fight it.

Simply detachedly presenting the case is insufficient. An advocate must try to be totally committed.

Of course, we may lose in the end, but it will be fearlessly, bright-eyed, and not for want of trying.

And remember - there are some who will say expansively with an easy smile they are not interested in winning, but just in presenting the evidence. It is a fashionable thing to say. It makes them seem harmless.

Don't believe a word of it.