In the adversary system it is the parties, in particular each side's barrister, that are responsible for the conduct of the litigation, subject to the court’s procedural rules and case management. The independent judge or jury has no investigative role, and no position on the merits of the case until the evidence and submissions are presented by the parties.
The court’s role is to decide the case on what it finds to be the facts established by the evidence and the legal consequences which flow from such facts. Ultimately, after evaluating the evidence and argument, the court makes its decision by asking the question, whether or not the party making the allegation or claim has proved their case to the required standard.
The system depends on each party presenting its best case on the understanding that “truth is best discovered by powerful statements on both sides of the question.”
The advocates’ role is crucial because they decide how to conduct their case, what evidence to present and what arguments to put. Their role is not to judge but to present and argue consistently with their clients’ instructions, their ethical obligations and in their clients’ best interests.
In the adversary system, where in contested cases there are often different versions of events, each side contends for its version of the true facts upon which the decision should be based.
The advocates’ responsibility is to deal with the facts and submissions skilfully and ethically to persuade the court to accept the version of events and legal consequences which best suit their clients’ cases.
Advocacy Training and the AAI
For centuries there was a wide spread belief that advocacy could not be taught. Lawyers who wanted to practice as advocates relied on observation, trial and error, experience and some form of osmosis to learn their art. All this was often done at the expense of the client and without any defined standards or assessment of even minimal competence in advocacy.
This was not a professional approach. Advocacy is a specialised activity for baristers which requires developed disciplines and skills. A competent advocate must be more than someone performing “to the best of their skill and ability”. A minimum standard of competence should be required.
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 1970’s. The philosophy and teaching methods were developed first in the United States and Australia.
In Australia, this work was initiated and carried on by a number of committed individuals during the 1970s. It was adopted by the Victorian Bar Readers’ Course which was the first course of its kind in 1979 and later by the New South Wales Bar Course. It has since been adopted generally in advocacy training in all common law countries.
In September 1991, at the Australian Legal Convention, the Australian Advocacy Institute (AAI) was launched. The AAI was born in response to the ever growing demand by the Australian profession for advocacy training, which could no longer be met by a handful of enthusiastic committed individuals. It was established under the auspices of, and with the financial assistance of the Law Council of Australia.
The AAI is now an independent, not for profit body governed by a board of directors. Since 1996 the Institute has been financially self-sufficient.
The aims of the Institute are to:-
improve the standards of advocacy skills throughout Australia
provide an Australia-wide forum in which ideas and experience in advocacy training can be shared and developed
design and develop methods and materials for training lawyers in advocacy
train lawyers to teach advocacy skills.