Why is training necessary in the first place?|
What are solicitor's needs in training as litigators?|
What solicitors need to be able to do as advocates.|
What training does the AAI provide for solicitor advocates?|
What does the future hold?||
1. 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
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.
2. 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 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
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.
3. 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 calibre 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
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
4. 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
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
Workshops are usually held over a weekend, with a 2 hour introductory session held on
Friday evening, followed by practical sessions on the Saturday (9am to 5pm). Occasionally,
Sunday (9am to 1pm) sessions are added to the workshop timetable.
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 addressesLegal argument
5. 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
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