ADVOCACY

“Just as bad advocacy is a

time waster, good advocacy
is a time saver. Good
advocates can strike to the
heart of an issue in an
interesting and compelling
way. They can reduce
complexity to riveting clarity
and simplicity… When it is
well done oral advocacy is
both effective and efficient.”
Justices Reid and Holland
Supreme Court of Ontorio
Preparation for oral advocacy
Before you appear:
Check your notes;
Reread the authorities;
Reread the facts;
Reread the written submissions
You can never over-prepare.
Preparation for oral advocacy
 F E Smith KC, later Earl of Birkenhead, Lord Chancellor, was
one of the best known and highly paid barrister.
 As a youthful counsel, he pretended to be a dilettante and a
trifler. 一知半解者

 But he was determined that his first effort before a London

judge and jury should be a success, and to that end he had
written out, revised and rewritten his maiden speech and had
committed every word of it to memory.
 As the saying goes again: You can never over-prepare.
 Oral advocacy begins even before you speak a word.
none- wiser= judge do not understand
Advocacy mode
Whenever you are in a courtroom, you are on
show.
Even when you are not on your feet speaking,
you are still in full view of the court.
Conduct yourself as if you are constantly under
observation.
Advocacy mode
Be professional every second that you are in
the courtroom.
面部扭曲
 Don’t grimace or otherwise pull faces.
 Don’t physically react to adverse rulings or adverse
comments.
 Body language is important.
Advocacy isn’t just about what you write or say.
You need to be in ‘advocacy mode’ from the
moment you enter the courtroom.
Oral advocacy – expect to be nervous
 Expect to be nervous
 Advocacy is stressful.
 Expect to be nervous.
 Even the greatest lawyers get nervous.
 So, be aware that you are nervous.
 Slow down, listen carefully, take time.
 Don’t let it overwhelm you.
 Remember that a total command of the facts and law is
essential.
 If you are properly prepared, your nerves will pass out
once the case is under way.
Oral advocacy - a conversation
 Nervousness often cause people to speak too quickly.
 They are in such a rush to get their submissions out.
 The are so focused on what they have to say that they forget that
they are talking to someone.
 Oral advocacy is a conversation – with a judge or judges.
 It is not an oration.
 You are talking to a judge or judges, not at them.
 If you focus completely on what you are saying, rather than to
whom you are speaking, you won’t focus on the judge’s or judges’
reaction.
 The judge’s or judges’ reaction is critical.
 If you are not aware of such reaction, you are not doing your job.
Oral advocacy – simple language
Use simple language.
Lawyers being who they are, their language
comfort zone is legalese, complexity and big
words.
Be aware – avoid legalese and keep it simple.
You must aim to explain communicate the
most complex of issues in plain English.
 watching video as sample:

https://www.youtube.com/watch?v=D0WZsxC
bL6M

Understanding anatomy moot

ADVOCACY
…continued
Oral advocacy – listen, absorb, react

■ The most important rule of oral advocacy is to listen.

■ It is not enough to just listen
■ If you can listen and truly absorb what you hear, then you will be
able to respond effectively.
■ So, it is not just a matter of hearing – it is about absorbing.
■ Once you hear, you need to absorb.
■ Once you absorb, you need to react.
■ You may not be in court every day, but listening is one skill you can
practice every day.
Oral advocacy – watch and listen

■ It is important to pay close attention.

■ We can only pay close attention if we
watch and listen.
■ We cannot watch and listen if we spend
all of our time with our head down –
taking notes.
Oral advocacy – watch and listen
■ Sir Charles Russell, one of
England’s greatest advocates,
one day glanced around at his
junior and said, ‘What are you
doing?’ ‘Taking a note,’ was the
answer. Russell looked at him
and said, ‘What the devil do you
mean by saying you are taking a
note? Why don’t you watch the
case?’ Watch the case!
■ In order to be aware to of the
judge’s or judges’ reactions to
you arguments you need to look
and listen. Look at how the
judge(s) are reacting!
Oral advocacy – watch and listen

■ Not all cues are verbal.

■ Non-verbal communication is just as
important as the spoken word.
■ If a judge is raising his or her eyebrow and
you are not looking, you will miss an
important signal.
Oral advocacy – eye contact
■ Make eye contact.
■ Do not read. If you read, it may appear that
you are avoiding eye contact – that you are
insincere.
■ Notes are important but use them sparingly.
■ Do not read – because you will lose eye
contact.
Oral advocacy – speak up!
■ “There is no surer way to irritate the mind of
any listener than to speak in so low a voice or
with such indistinct articulation or in so
monotonous a tone as to make the mere
effort at hearing an unnecessary burden.”
– John W Davis
Oral advocacy – tone

■ When we converse with someone, our tone is

not the same as when we give a speech.
■ Tone is important.
■ The voice is a wonderful tool that must be
pitched appropriately.
■ But avoid arrogance or condescension.
Oral advocacy – emphasis

■ Not every point in your submissions is of equal importance.

■ Emphasise points of importance.
■ Avoid being monotonous.
■ Modulate your voice.
■ Use pauses.
■ Make your submissions worth listening to!
Oral advocacy – sincerity

■ If you are sincere, you will be persuasive.

■ If you are not, you will NOT be able to hide
it in oral submissions.
■ Oral submissions expose insincerity!
Oral advocacy – repetition

■ Repetition is important to emphasise.

■ But it must not be mindless repetition.
■ What you need is creative repetition.
■ The more times you repeat your point, the more likely it is that it will
be retained and believed.
■ Therefore, if an advocate’s job is to articulate his or her arguments,
whenever he or she can, do so but appropriately!
Oral advocacy – state the conclusion
first
■ Give the court your conclusion first and then explain.
■ Example (the conclusions are in italics):
– Judge: Counsel, am I correct to thinking that the court below
has no jurisdiction to punish?
– Counsel: That is correct, My Lord.
– Judge: Well… but isn’t the court below the High Court?
– Counsel: Yes, My Lord. But even the High Court is a creature of
statute, as is this Court.
Oral advocacy – hold your ground

■ You must hold your ground.

■ This requires concentration, discipline
and, sometimes, courage.
Oral advocacy

■ The judge is not your adversary.

■ Never forget the role of the judge.
■ Never forget your role – you are an
advocate!
■ watching video as sample:
■ https://www.youtube.com/watch?v=KGkQQkb
C60c
■ Briefing on mooting rules and schedule