Following her keynote speech at the Advocacy Section’s ‘Art of Good Advocacy’ seminar in April, we speak to Lady Justice Macur about vulnerable witness training, the importance of continual learning for advocates, and the common mistakes she sees solicitor advocates making – and how you can avoid them.
I was referring to the manner in which arguments are delivered and pursued. In general, it will be very difficult for someone with no appreciation of the courtroom arena or an understanding of the particular jurisdiction to learn by rote how to be a good advocate. It’s often a process of accumulating personal experiences, observing other advocates, different judges and court settings, and appreciating what works best.
Continuing education is vital for any advocate; by that I mean an education in the subject matters that they are going to be advocating – this includes not simply the substantive law, but rules of court, practice directions and, generally speaking, the advocacy practice and training that is provided.
Some advocates perhaps don’t appreciate that they need to have a flexible approach – these advocates tend to be the ones who have their heads down in court
I don’t think that any advocate stops learning their trade. There is always something new to learn in ongoing daily court life, even if it’s sitting alongside another advocate and thinking ‘that was a really good way of doing that’, or ‘that went down badly, I won’t do that’. You should always be open to ways of improving your presentation and practice.
A sense of flexibility is essential in this. Every advocate has got to be able to react to the moment, to understand that things usually do not follow a set pattern in the courtroom if, for example, there are witnesses involved, or a new, fact-specific point of law arises. You need to be able to think on your feet at all times and react appropriately.
Further, a good advocate recognises when they are on to a no-hoper. You have to be able to step back from the fray and look at things objectively. By making a very realistic and objective assessment, you are often in the best position to advance your advocacy or the argument you are advocating.
I think some advocates are exceptionally good at it. Other advocates perhaps don’t appreciate that they need to have a flexible approach – and these advocates tend to be the ones who have their heads down in court. They will go through a set of notes without listening to a question and answering it, and they fail to respond to an ever-changing and dynamic courtroom. I think a courtroom situation is by and large dynamic, and you have to be able to respond to and thrive within it.
One of the worst things I think is an advocate who is so anxious about a spontaneous performance or their ability to recall their learning or experience, that they will not be diverted from a script. It’s very obvious when a judge has such advocates before them that their thought processes are not so keen as they could be, and they offer less assistance to the court.
By and large, a lot of advocates recognise the difference when they bring a case to a court where there is no jury, but the trouble is they sometimes forget, and they advocate their cause as though the bench has no prior experience of litigation or the vagaries of life. The result is the bench ends up being the recipient of quite flowery submissions which are aimed at tugging their heartstrings, rather than engaging their brains.
It’s not necessarily a criticism that some advocates, passionate in their cause, will forget there is a difference between addressing a judge and a jury
It’s not necessarily a criticism that some advocates, passionate in their cause, will forget there is a difference. In less experienced advocates, it’s perhaps merely that – a lack of experience in knowing that the judge or tribunal has heard it all before and that usually they are determining a process in a quite different fashion to that of a jury.
I don’t see it that much, but sufficiently often to know that at least once or twice in every particular term, I will have to say ‘Mr X, Mrs Y, we are not a jury, this is not our function’. It’s a kindly reminder that the advocate needs to step back and think about what it is they have come to court to do.
In family advocacy, as a first instance judge, I used to see an unfortunate trait in advocates of not asking questions of witnesses in an acceptable form, and dressing up quite long-winded statements of principle as a question by just tagging on at the end ‘do you agree’ or ‘isn’t that so’ etc. This often leads to either: (i) an inaccurate or inappropriate response, because the witness has ceased paying attention; (ii) an inability of the judge to follow the case being put to them; and (iii) an inability to progress the case in a timely fashion by asking the usual questions (what, where, when, why, who).
It pays to remember that when asking a question to obtain a fact, the fact will often be better obtained by being direct, usually in the first person, and without calling on the witness to comment. The time for comment is in closing submissions, not when you are embarking upon cross-examination, examination in chief or re-examination. You will not benefit by a witness commenting on whether or not your question is valid.
Be aware of the necessity of the training, and take advantage of any training offered to you. Solicitor advocates do start with something of an advantage in that they are dealing in many instances with vulnerable people who walk through their door.
It is that vulnerability that being in a litigious situation will assist a solicitor to understand those who are truly determined to be vulnerable by the system by reason of youth, mental capacity, nature of the offence etc. So solicitor advocates do have an advantage in being in such close proximity to those types of litigants who may become witnesses, whether in their own court or somebody else’s, in other arenas.
If you are new to the law, one of the simplest ways of experiencing advocacy is to go along as a member of the public and sit in as many different types of court proceedings as you can. I think that by doing that, allied with any formal training that you undergo, you will observe the good, the bad and the ugly; and you will add to your own wealth of experience.
You will also see that the work isn’t necessarily all glamorous, and requires and call for hard work; and although the best advocates make it look easy, I think that it will become apparent from the detail in the submissions or cross-examination the amount of preparation that has gone into it.
As a first instance judge, I used to see an unfortunate trait in advocates of not asking questions of witnesses in an acceptable form, dressing up quite long-winded statements of principle as a question
I also think one of the best things to do if you are considering taking an advocate’s route rather than an adviser’s route is to experience as much pro bono work as possible, for example, assisting with Citizens Advice Bureaux or the Personal Support Unit.
Lots of advocates are prepared to mentor those already in the profession who want to go along and see whether or not they would like to take up advocacy. There is nothing that will improve anyone’s prospects more than making personal contacts, being part and parcel of a team, and talking about what’s going on.
By ensuring that standards of good advocacy and associated integrity are maintained, and providing that that is always at the forefront of any advocate’s mind, the nature of the cuts and the nature of the continuing struggles that all advocates have, actually will be put into perspective. If standards drop, it becomes a vicious circle rather than a virtuous circle. It’s by maintaining the very best of standards that the necessity of a well-qualified and well-resourced profession is demonstrated.
I would stress how important it is how any advocate coming to the court can be in the administration of justice. And the demands on the justice system now are such that it does depend on good advocacy and that it is something that needs to be preserved, promoted and promulgated.
Rt Hon. Dame Julia Macur
Called to the Bar, Lincoln’s Inn, 1979 (Bencher, 2005); Midland and Oxford Circuit; QC 1998; a Recorder, 1999–2005; a Judge of the High Ct of Justice, Family Div., 2005–13; Presiding Judge, Midland Circuit, 2008–11. A Lady Justice of Appeal, since 2013; Deputy Senior Presiding Judge of England and Wales, from Jan. 2016. To be Senior Presiding Judge from January 2018.