Advocacy is an art. It cannot be taught or read from any book. It has to be cultivated by keen observation. There existed a system wherein a newly enrolled lawyer joined the chambers of a senior and from then on virtually lived life like in a Gurukulam under the guidance and mentorship of his senior. A lot of traits for good advocacy were imbibed from the office that he or she joined as...
Advocacy is an art. It cannot be taught or read from any book. It has to be cultivated by keen observation. There existed a system wherein a newly enrolled lawyer joined the chambers of a senior and from then on virtually lived life like in a Gurukulam under the guidance and mentorship of his senior. A lot of traits for good advocacy were imbibed from the office that he or she joined as a junior. When a junior lawyer stands before a Court, his or her pedigree was traced from the office from which he or she came. A junior advocate used to have the advantage of picking up skills of advocacy by closely observing their senior and many other seniors (on the advice of their senior) when they argued in courts. These traits, combined with the individual skill of the junior advocate, paved way for their fruition into a fully blossomed lawyer. This trait can be acquired only by experience and therefore, it is only natural that it takes a long number of years to acquire it.
The next question would be "why should this even be discussed and written about, if it is an acquired skill?". This necessity has arisen since the senior-junior relationship seems to be slowly on the verge of its death. Law practice is taking a different shape and we have entered an era of junior advocates entering into law firms and starting their practice. Some even feel that they can start practice on their own, from day one. There is a real urgency for the Bar Council to take stock of the situation and re-introduce compulsory internship or experience as a Junior Counsel/Associate with some office for a minimum period of time, as a pre-requirement for starting their independent practice. It is very important to instill this all-important trait of "advocacy" in the minds of junior advocates whenever we get a chance, since the sources from which they acquired this skill are slowly closing down.
As a judge, I watch young advocates who are otherwise smart and sharp, lacking in advocacy. Many of them seem to have an impression that their bookish knowledge on law and oratorical skills are more than enough to start their independent practice and appear before courts. They seem to be missing a fundamental fact : that the judge is after all a "Human Being". This subject has been on my mind for quite some time, and the time provided by COVID-19, impelled me to write my thoughts on this trait- "Advocacy". I will stand vindicated even if one junior Advocate benefits out of this exercise.
Bruce Lee was once asked for his description of Kung Fu his famed reply was "It is an art of fighting without fighting". Similarly, "advocacy is an art of arguing without arguing". The art of advocacy can be best understood from two very succinct paragraphs in a book written about a famous Queen's Counsel Jeremy Hutchinson by Thomas Grant titled "Jeremy Hutchinson's Case Histories", which reads as follows:
"Advocacy is the art of persuasive and attractive speech. Nowadays the student must attend many hours of 'advocacy training'. Indeed the main remaining role of the Inns of Court now appears to be just that. The upholding of integrity, duty to the court, the overwhelming importance of preparation, mastering the law and the facts, can all be taught. But, as Lord Birkett once pointed out, how can one teach that skill that could win from the diarist John Aubrey – when speaking of Lord Chancellor Bacon – the comment: 'It was the fear of all who heard him that he would make an end', or from Pitt the Younger, when replying to an expression of surprise at the huge reputation of Charles James Fox: 'Ah! But you have never been under the word of the magician.' There lies the Art of Advocacy.
Like conversation or theatre, the essence of advocacy is the impression it makes at the moment it is given voice to the immediate audience to whom it is made. The words themselves and the meanings they are intended to convey are only half of the effect. Put fine words into the mouth of a poor advocate and those words can die on the tongue. Whereas a great advocate can conjure magic out of the proverbial laundry list."
What are the traits that make out good advocacy? I will try and capture them in bullet points :
- Arguing does not mean getting argumentative. This personality trait is far from advocacy. If a judge forgets a lawyer's face and his name, his voice and his gestures, and still remembers the arguments, which coming from that nameless Toga, won the case- that man is a great lawyer.
- What is seen in court is only 1/10th of what goes on in the office of an advocate. The court hall is only the last mile. The other 9/10th is assimilating facts, identifying and applying the appropriate law, anticipating what the other side is going to come up with and anticipating what the Bench might ask for.
- Lawyering and advocacy are two different aspects altogether. Lawyering is collection of facts, looking for law etc., How you present it before the Court is where advocacy comes in. Advocacy starts where lawyering ends.
- Fine oratory is only one part of an advocate's skill. A man who adopts classroom tactics in Court, ostentatiously showing off his knowledge, burdening the court with unusual and erudite concepts, may well be a great jurist, but he is a poor psychologist and therefore an inferior lawyer. Advocacy comprises multifarious levels of skill.
- Advocacy starts from drafting a pleading, the ability to research, logical thinking, problem-solving, leading evidence, cross-examination and finally framing persuasive arguments. Each one of these elements is an important aspect in the entire body of advocacy. Without laying a proper foundation for the case, mere flowery language and peripheral arguments cannot help put the case of your client before a judge.
- Good drafting skills help in streamlining the thought process. Once the thought process is streamlined, it can be presented in a more orderly and persuasive manner before the court. A person who lacks drafting skills, normally lacks the skill of advocacy. Both go hand in hand.
- Clarity of thought comes only with experience and it does not automatically flow from law degrees or law books. It has to be acquired with persistent hard work and there are no short cuts.
- Always prepare pleadings and proof affidavits in the presence of the client and witnesses. Never prepare it in their absence since it may not be in line with what he or she wants to say in court. In many cases witnesses say that they do not know what is there in the proof affidavit and that it was prepared by the advocate.
- Advocates are the salesmen of thoughts and ideas to a judge. The judge is a human being. Psychology therefore plays a major role in good advocacy skill.
- Good advocacy is about anticipation, anticipation and anticipation. It is always important to anticipate what will come from the other side or/ and what will come from the judge. It is always better not to be caught unaware of or floundering for an answer.
- Body language plays a major role in the art of advocacy. I am reminded of the words of Piero Calamandrei in his book "Euology of Judges", where he writes, "I have seen when a lawyer rose to speak, he used to turn towards the audience with gestures reminiscent of the pugilist entering the ring ostentatiously flexing his biceps. When these lawyers appear before court, an otherwise cultured person forgets all he knows of good manners. With ruffled hair and contorted face, he ejects a series of unnatural guttural sounds, adopting strange gestures and a new vocabulary, and sometimes, I have observed, even changing the pronunciation of certain consonants. It is as if he fell into a trance and through his inert body were speaking the spirit of some Charlatan, who had escaped from the depths of hell." A judge does get disturbed with the body language and this will have a lot of relevance in a case where both sides are evenly placed on facts and law.
- A good lawyer does not lose his head when some statement he has made has turned against him. Vociferation is not an indication of energy, nor is sudden violence a sign of true courage. If a lawyer loses his head, it is reasonably certain that his client will lose the case.
- Simplicity of thought and simplicity of expression go a long way in making a great lawyer. Howsoever complicated the matter is, one must develop the art of putting it in a simple manner before the judge. The more simply it is put, the more easier it reaches the judge.
- Earning the trust of the bar and bench is a hallmark of advocacy. An advocate who bends the facts, misleads the court or browbeats in court just to get away from an uncomfortable question from the bench, gets into the wrong side of the judge's brain. This bias and prejudice will keep acting upon even when he comes before the court with a genuine case. After all, the judge is a human being. By earning their trust, I have seen judges go by what the counsel says without even referring to the case bundle. This trait must be consciously developed and a lawyer must become a symbol of truth. Having a good reputation in court will pave way not only to the success of the lawyer but also sometimes for the success of the client's case.
- Judges do discuss about lawyers and as to how dependable they are. Reputation, good or bad, spreads fast among judges.
- Advocacy also takes various shapes at various stages in the profession. In the beginning, one must be a master of his brief both on facts and law. Later on, as a senior you must stay away from the brief and papers and focus on how it is going to be presented in court. Wear a thinking cap.
- Preparing written submissions and list of dates and events must be made a regular practice. Never add anything, fact or law, in the written submissions which was not argued or which was not cited before the court. If one does so, it gives a very wrong impression of the counsel. This practice becomes very relevant in today's context where the judges are overburdened with a ceaseless volume of cases that they have to decide. Presentation of dates and events and written submissions will therefore give more time for a judge to apply his mind rather than wasting his energy in deciphering the facts.
The art of advocacy can be developed only through careful observation in court. What to argue, what not to argue, when to stop, how a senior manages a difficult judge, are all traits not read in books but learnt purely by observation. A senior advocate must always bear in mind that he is watched by the junior advocates and be conscious that they should not be the cause for inculcating certain wrong traits in the junior advocates. Good advocacy ultimately results in the development of law and it adds strength to the judiciary as an institution.
Justice N. Anand Venkatesh is a Judge of Madras High Court
Views are personal