Advocates – what are the qualities?
Be a good listener
9. Good advocates are good listeners. They listen to witnesses and instructing solicitors before a hearing. During a hearing they listen to witnesses for all sides, the court and their instructing solicitor.
10. Having listened, a good advocate applies other qualities and skills to what has been heard. Ultimately, as an advocate, it is your case, and you must, having listened, make decisions upon which the outcome of the case will rest.
11. An advocate is called upon to exercise objective judgment in relation to the case to be argued. You will never be a great advocate if you take cases and argue them solely, or perhaps even principally, without questioning whether what is put to you in your brief is correct. Often as an advocate it is safer to start from the premise that what is being put is wrong, or at least, not always right. It is correct to always question what you are told in the brief. Only by doing this can you know the weaknesses in the case, and it is only by knowing the weaknesses in the case, that you can advise about the strength of the case: and whether it should be argued, or the terms on which it ought to be settled.
12. Tell your instructing solicitors, and their clients, what they do not want to hear. You will lose unscrupulous solicitors and clients, but gain far more solicitors and clients than you lose, and will develop a reputation for telling it like it is, and for saving people’s money and reputation by not involving them in unnecessary hearings. In court, if you are wrong, admit it. Don’t defend the indefensible. If you are not wrong, be courageous, and, within the limits of your duty as an officer of the court, stand your ground in accordance with your duty to your client.
13. Be honest in all of your dealings with solicitors and clients, and your opponents. Be honest with the court. You must not mislead the court. If you do, you will, eventually, be caught, which can lead to disciplinary action and the loss of your practising certificate.
14. Be courteous to the court, your opponents, witnesses, and court staff. Remember that it is often registry and chambers’ staff who determine when, or if, your hearing (and particularly urgent hearings) get heard.
15. In court, and with opponents and witnesses, you can be both tough and courteous.
16. Courtesy is also about knowing about etiquette, including court etiquette. Be polite, address people by their correct titles, know the names of your client and the witnesses (both your own and those of the other side), and ensure that you are properly attired, both generally and in relation to robing where necessary.
17. Be on time! You do not want to have the embarrassment of applying to set aside orders dismissing a matter for non-appearance because you were not in court at the appointed time.
18. You should have the courage to back your judgment. Ultimately, subject to the views of the court, it is your judgment which decides whether, and how, the case proceeds.
19. You should also have the courage to be polite but firm, and not scared of, the court. You should be able to stand up under fire. To extinguish a flame it is sometimes necessary to get burnt and to keep on going. With objections to evidence, for example, remember that a single piece of evidence can be the subject of multiple objections, and just because your first objection is dismissed, don’t run away from your second objection.
20. You must prepare. You must claw away at the facts. You must know them for the duration of the case. Then you must forget them and move on to the next case.
21. You must read and know the law. Research the law, and research it properly. Too often young advocates take a passage cited in a text book, or the paragraph from their computer search, without reading the rest of the case. As often as not, a passage which might seem to be of assistance, when read in the entire context of a particular case, is not actually of assistance. Good advocates also check the judgments of the judge or magistrate or tribunal member before whom they are appearing. There is nothing wrong, and everything right, with citing a High Court or Full Court authority for a proposition, and following it up with a first instance judgment to the same effect of the judge before whom you are appearing.
22. A good advocate cannot, on a medium to long-term basis, wing it. Industry has been an essential characteristic of all of the great advocates.
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