2011 VICTORIAN BAR CONFERENCE
Saturday 5 March 2011

ADVOCACY – WHERE TO NOW?

The Hon John Middleton
Justice of the Federal Court of Australia

The content and nature of advocacy is changing to accommodate a new environment, as is the adversarial system itself.  By becoming aware of this change, and embracing it, the present advocates will equip themselves for the inevitable challenges that are affecting and will affect the legal profession.

In discussing advocacy, I am going to concentrate on the presenting of a case before a court or tribunal, both at trial and appeal level.  I do not include the many other activities that precede a trial or appeal: involvement in interlocutory processes or preparation for trial, although I will be alluding to witness preparation.

There are certain aspects of advocacy that will never change.  At least as long as there are appearances in a court, the approach of disrupting one’s opponent will always be an option.  Putting aside verbal interruption, coughing, playing noisily with one’s computer, leaving the mobile phone on, there is the approach of the fictional Bullstrode Whitelocke KC:

I have learned many times that the key to successful argument is being able to disconcert your opponent.  You must create waves on his sea of reason.  In the hurly burly of the courtroom such tactics, like the gentle caress of a well-timed squirrel grip in water polo, are not considered unethical but rather are the hallmark of good advocacy.  In fact, poor is the lawman that concentrates only on his own “game”; one must look to the bigger picture.

There are many ways to distract even the most composed of advocates.  I am told that in the period shortly after the First World War, Edward McTiernan would often interrupt his opponents mid-sentence to propose a rendition of “God Save the King”.  This call was hard to resist in those heady and patriotic times and Edward would demand its singing up to seven times an hour.  By the end of the song, the blood of those present was stirred and the effect of his rivals’ submissions lost.  For the modern advocate, a suitable alternative would be “Shut Up Ya Face, Kiss Kiss” by Holly Valance or anything by Australian songstress Peter Allen. 

This is an example of how an essential ingredient of advocacy in court remains, but the means alters to accommodate the different times.

There is no doubt that the style of advocacy has changed over time.  In the early part of the 20th century there was the more flamboyant approach.  Now what is sought by the courts is the quick and efficient identification of the issue or issues, and the fair and ethical presentation of the argument in favour of the client.  There is an emphasis on the efficient use of the judicial and administrative resources available for the purposes of the courts.

However, sometimes the advocate should introduce some flair to make a point, especially if one is limited in time and must make an immediate impression.

David O’Callaghan SC and I present a talk at the Victorian Bar Readers’ course on ‘Written Advocacy”.  In the course of that talk, reference is made to a special leave application made in October 1979 before the High Court of Australia by Mr Kelly QC (later a judge of the County Court).  The issue arose in the course of a murder trial where there was a need to determine the boundary of New South Wales and Victoria.  The transcript discloses the following presentation by Mr Kelly QC:

Mr Kelly:	May it please the court.  It is said that foreign travel is dangerous and being the nature of man to be forever curious, gregarious and venturesome, it is sometimes to be seen that from time to time a Victorian, clutching his courage, as it were, in one hand, and his poker machine money in the other, ventures across the River Murray into the terra incognita of the State of New South Wales.  He is warned of the risk by a sign which reads:  “You are entering New South Wales”, or more simply: “New South Wales”.  That sign is usually found erected at the southern end of the bridge where the bridge runs on to level land leaving the bank to shelve away to the stream beneath.  

Our special leave point, if the court pleases, might be simply stated, is that where the sign should be?  Does New South Wales start at the top of the bank or at some other and what place on the River Murray?  In order to demonstrate rapidly to the court how such a question arises, that is to say, outside the fevered imagination of a professor of law attempting to set an exam paper for his students, but in the reality of this case, might I turn very briefly to the factual situation which is best revealed by recourse to the photographs and the plans which were exhibits in the court below and which I trust are annexed to the appeal book in this court.

Of course, whilst we have juries, oral advocacy will always have a place.  Even here though, juries are being provided with an increasing amount of written material to help them understand the case before them to undertake their duty as the constitutional trier of fact.  

In civil proceedings, at both trial and appeal level, written advocacy has become more prevalent.  The oral component of advocacy is diminishing.  

This is not to say the need for advocacy, the art of persuasion, has been reduced – the task is to persuade by the written word.  Oral advocacy’s place will often be left to supplement the written word.  

Further, the interaction between judge, advocate and witnesses is being reduced.  Sometimes the judge never sees a witness relied upon, nor has the arguments presented in oral form.  Sometimes the judge, witness and advocate only see each other on the screen, with the ‘modern approach’ even allowing for cross-examination as to credit to be undertaken by video.

I interpolate that the increasing reliance on the written submission has a number of consequences.  One is on the openness of the court process.  Even allowing journalists to tweet throughout a trial is not of much use if all the advocate says is ‘I rely on the written submissions filed in Court’ and sits down.  The court then needs to facilitate the media having access to the submissions.

Secondly, from the perspective of a busy court there is the benefit in handling an increasing court load by written submissions.  I do observe, however, that the written submissions may well contribute to increasing the workload of the judge out of court, which may impact on the actual delivering of the judgments.

Apart from the increasing reliance on written advocacy, there is now a greater role given to the judge than has previously been the case in our adversarial system.  This trend will continue.  

The common law adversarial system assumes that the parties are best able to assess their respective forensic interests.  On the other hand, the philosophy underlying case management is based upon the interest of the court and of the community in resolving litigation swiftly and economically as an important factor.  

Nevertheless, it is important to realise that there are limits on what a judge can do in managing litigation.  First, inherent in the concept of judicial power is the entitlement of a party to have the claim heard and determined by an independent and impartial judge.  A judge must be careful in managing a case from the cradle not to pre-determine issues or give the apprehension of having pre-determined issues which are to be decided at trial.  The other limit derives from the fact that the judge simply does not know at the interlocutory stage all the information the parties have at their disposal, which affects the ability of a judge at the pre-trial state to make informed decisions.  

These observations were made by the Honourable Ron Sackville in a talk he gave discussing complex civil litigation.

As part of case management, the judge often intervenes at an early stage of the proceedings to attempt to identify the ‘real issues’, and not those just presented by the parties in the pleadings.  In the Federal Court at least, many of you will have experienced the intervention of the judge in formulating the issues and even confining the ambit of the evidence that will be able to be led.  In tribunals, where the rules of evidence do not apply, even greater control is taken by the decision maker over the management of the proceedings.  The introduction of the Civil Procedure Act 2010 in Victoria and the recent amendments to the Federal Court Act 1976, are directed to moving to an even more judge controlled environment than leaving the management of the proceedings predominantly to the parties and legal practitioners.  The judge control, as you know, extends to limiting the number of witnesses, excluding cross-examination, limiting the issues, setting the length or duration of submissions, and directing the involvement of ADR.  

Part of the advocates new role will be to familiarise himself or herself with these new management tools, and employ them to the advantage of the client in accordance with one’s overall obligation to the courts.  

Inevitably the Australian legal system is moving towards a hybrid system of adversarial and inquisitional.  This is not to say the advocate will have no role in such a hybrid system, just that the role will be different from that we are all use to in the traditional adversarial system.  

Let me take the specific example of the presenting of evidence by expert witnesses.  In many commercial cases, there is the use of the ‘hot tub’ or ‘concurrent evidence’.

This involves the presentation of a joint expert report to the court, the competing experts asking questions of each other, and the court intervening throughout that process.

The role of the advocate is reduced.  Sometimes the role is only to test credibility (if that is in issue), the extent of experience or expertise, or to highlight errors of observation, reasoning, or logic.  However, by the time the exchange between experts and the judge is complete, there is very little for the advocate to cross-examine upon.  

In other ways the advocate’s control over the court process is lost.  Let me take the question of witnesses generally.  Advocates are often perplexed with the question “shall we call a particular witness?”  The true test whether to call a witness is whether he or she is necessary.  If not, why call the witness.  There is a further consideration.  Even if a witness would be useful, but not altogether necessary, the advocate will need to consider the value of the witness to the cross-examiner.  We all know the dangers of one’s own witness.

Then the advocate has the decision of the order of witnesses.  It may matter, particularly before a jury where connection and sequence could be important in the presentation of the facts.

However, with a more judge controlled world, the advocate’s choice of witness and order of witness will be reduced or illuminated.  The judge will be able to limit the witnesses to be called, and direct in appropriate cases the order of presenting evidence.

In a recent talk entitled “21st Century Advocacy?” the Chief Justice of South Australia, the Honourable John Doyle AC concluded that by the end of this century, advocacy as we know it will no longer be practised.  With this time frame, some of you may not care.  The Chief Justice was also concerned with costs, and the possibility that the profession may kill the goose that lays the golden egg.  A very legitimate concern, and one that even the purely self-interested should heed.  

Sir Thomas More, went a step further, making the absence of advocates one of the characteristic features of his ‘Utopia,’ saying that the inhabitants ‘consider them a sort of people whose profession it is to disguise matters as well as wrest laws; and therefore they think it much better that every man should plead his own cause and trust it to the judge.’  

It would be utopian in the extreme to suppose that the institution of advocacy can ever become extinct in the world as it is.  

I think there will always be an important role for the advocate.  The advocate is a resource for any court, and can be valuable in assisting in the formulation of the reasons for judgment which must be prepared by the judge.  Advocates do help provide a structure for a judgment and can focus the Court on the real issues.  The interaction between the bench and the advocate, even if only to supplement written submissions, still can have an important role to play.

No one really can foresee the future.  I have just added my contribution to what may happen.  If I turn out to be right, then I will adopt H.G. Well’s suggestion for his own epitaph – “God damn you all, I told you so”.