Why is training necessary in the first place?
Advocacy is the art of persuasion. In a court or a tribunal, before a judge or a jury, at first instance or on appeal, the litigation team’s and the advocate’s roles are critical to the client’s cause and to the administration of justice. This is so particularly under the adversary system because it is the parties and not the court who are responsible for the conduct of litigation. Performance by the advocate is a responsible and a demanding task which requires mastery of special disciplines, skills and techniques.
In the past none of those skills were taught. They were thought to be acquired by observation, honed by trial and error, experience and osmosis. The result was that some learned, albeit at the expense of their clients, while others became experienced but often poor litigators and advocates. Some, mainly through their own efforts and special ability became competent and even outstanding.
It was always a concern to me that the legal profession allowed some of its members to hold themselves out as litigators and advocates, without any systematic training or assessment of their even most basic skill and ability to represent clients in court. No other profession allowed its specialists to do that.
Experience which is clearly an important part of the development of skills often does not in itself achieve the best results. People who attempt to learn skills without instruction and correction may improve but only to a certain level. At the same time they tend to perpetuate error. It is not easy to identify errors and then to be able to correct them without an objective assessment and a method for change.
The realisation that advocacy can and should be taught as a set of disciplines, skills and techniques by the workshop method came about in the 1970s. The philosophy and the teaching methods have since been developed, first in the United States and Australia.
Yet despite these developments there has not been a systematic structured course in litigation and advocacy training available to solicitor advocates. This is so despite the fact that many solicitors are practising as advocates in all courts and tribunals across Australia.
What are solicitor’s needs in training as litigators?
A solicitor may become involved in litigation as a member of the litigation team, as an instructing solicitor and as the solicitor advocate representing the client in court.
The skills needed for a solicitor as a litigator begin with conferencing with clients and obtaining relevant and thorough instructions. Conferencing and communication skills are a necessary part of the training of solicitors. In addition, even at this early stage, the solicitor must have an understanding of the purpose of the instructions and how they may affect the prospective litigation.
Gathering of evidence to support the client’s case again requires an understanding of the legal nature of the claim and the proofs which will be required. This involves knowledge of the rules of evidence and the form in which affidavits, witness statements, instructions to counsel and ultimately evidence will be used in court. Often this will include choosing and instructing of experts. This is a difficult area as there are complex rules now developed by the various courts as to how expert reports must be prepared and what is required of experts as witnesses. The choice of experts and the way they are instructed is important. The solicitor must be able to appreciate how expert evidence will be considered and evaluated by the court. Understanding of the law and the rules relation to expert evidence thus becomes important in the preparation of the case.
The solicitor will frequently be asked for advice as to the prospects of litigation and this requires knowledge of the factual and legal basis of the client’s case.
A number of documents will need to be prepared. This calls for legal knowledge and an understanding of the processes of the court in which the litigation will take place. It also requires the development of skills involved in putting together written material in admissible and persuasive form.
It is not uncommon for solicitors to brief counsel to advise and to prepare or settle documents. The solicitor’s greater knowledge of the case at that stage is an advantage and their involvement is of help to counsel.
Learning to choose the right barrister is an important part of the solicitor’s role. This requires an understanding of the qualities of good counsel both as advisors and advocates. Too often we see inappropriate briefing, not based on the quality of counsel but on some other criteria or association. A solicitor trained in advocacy will be able to make better choices.
There are many other tasks which solicitors as litigators will be called upon to perform. Solicitors cannot be effective in preparation unless they have a real understanding of what is involved in the trial process and how a competent advocate will conduct the case on behalf of their client.
What solicitors need to be able to do as advocates.
It is becoming increasingly common for solicitor advocates to perform a range of tasks in courts or before tribunals, all of which require the skills of advocacy which can and should be taught at least at the basic level.
It is highly unlikely that solicitors will become involved as advocates in complex civil or criminal cases. They will continue to brief barristers primarily because the level of advocacy skills required in those cases is high and is unlikely to be achieved by advocates who do not make advocacy their full time career and are able to achieve a high level of knowledge, tactical ability, disciplines and skills which are required. This is despite some exceptionally good solicitor advocates in the past, and there are no doubt some solicitor advocates of that caliber at present in all States.
The solicitor advocate must develop a range of skills that will allow them to present their case persuasively.
The first of these skills is the approach to preparation as an advocate. Although most solicitor advocates understand the need in preparation for a thorough knowledge of their materials, the relevant law and the rules of evidence, practice and procedure, the next stage in preparation is not as well understood. That involves the techniques of case analysis, the development of the case theory and preparation for the performance of each of the tasks involved in the case. It also requires the correct approach to a contested case and to the presentation of argument.
Presentation of argument is an important part of training of advocates. This applies to argument ranging from interlocutory applications to pleas in litigation, bail applications, evidentiary submissions and legal argument, first instance or appellate. There are generic characteristics of good legal argument, such as structure, balance and presentation skills, which are best taught by the workshop method of performance and review.
Examination of witnesses is, contrary to popular belief, one of the hardest tasks for an advocate to perform well. The methodology of presenting evidence fully and persuasively, without leading questions in contentious areas is an important skill necessary for effective advocacy. Of particular importance for solicitors is that the skills acquired by a competent advocate in leading evidence are also the skills which help in preparation of witness statements and affidavits.
Cross examination is a process much misunderstood when it is thought of as ‘testing the evidence’, exploring in the hope of getting the right answers and even questioning. The approach to cross examination and the skills involved in it must be related to the theme of the case and the specific arguments which are prepared before any evidence is called, and as a reaction to the evidence.
An important part of what any advocate must learn and develop is the special communication skills which are necessary in the courtroom. They are different from, and extend beyond, the ordinary day to day communication skills. They apply to every aspect of the advocates’ performance and can be taught and developed only in the context of training in the various disciplines of advocacy.
Finally every advocate must know and be able to apply the rules of ethics and etiquette for advocates.
It is only when all these skills and techniques are understood and honed that an advocate can reach a level of competence which is required of all advocates, whether they are barristers or solicitors.
What training does the AAI provide for solicitor advocates?
A not-for-profit institution, the AAI believes all people are entitled to quality legal representation by skilled and ethical advocates. Established under the auspices of the Law Council of Australia in 1991, it has an outstanding national and international reputation and is a leader in advocacy training all over the common law world.
The AAI regularly conducts workshops titled ‘General Advocacy Skills’ that are open to all members of the legal profession. AAI workshops are designed for practitioners at all levels across all jurisdictions. Each workshop involves instruction, performance and review of the skills, disciplines and techniques involved in good advocacy. Specially developed AAI materials are used to prepare a case study and to prepare to examine and cross examine witnesses.
Workshops are usually held over a weekend, with a 2 hour introductory session held on Friday evening (5pm to 7pm), followed by practical sessions on the Saturday (9am to 5.30pm). This exciting program gives lawyers the opportunity to practice trial techniques and strategies with the assistance of a faculty of experienced instructors who will offer constructive and practical suggestions to improve advocacy.
The AAI conducts all workshops in simulated courtroom sessions where participants receive immediate feedback from trained AAI Instructors and performances are videotaped for further individual review. Later, repeat performances incorporate what is learned. Benefit is also gained from seeing the other participants’ performances and hearing their performance reviews. This supportive, noncompetitive simulation, together with faculty demonstrations, suggested readings and personal attention, helps develop a personal and highly effective style of advocacy.
Workshops provide theory and teach practical skills in:
• Development of case theory
• Presentation of injunctions/applications and pleas in mitigation
• Examination and cross examination of witnesses
• Opening and closing addresses Legal argument
• Communication skills.
What does the future hold?
It is in my view inevitable that the community will eventually demand that any advocate with a right of audience should be trained and qualified in advocacy. Assessment of basic advocacy standards is already part of the work being done both at universities and, for example by the New South Wales Law Society in providing accreditation in advocacy.
The old argument that it is not possible to assess levels of advocacy skills no longer holds. The legal profession cannot remain the only profession which does not require its specialists, that is advocates, whether they are barristers or solicitors, to be trained and qualified in advocacy skills.
I hope the day will come when we abandon amateurism, that is doing the best one can to one’s skill and ability, and insist on training and assessment of minimum professional standards.
Professor the Hon. George Hampel AM QC
Chairman, Australian Advocacy Institute, 1991-2015
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