Talking about advocacy

Advocates don’t talk about advocacy much. We chat about the law freely enough, and seek each other’s views on the strength of the evidence and so on, but the mechanics behind effective cross-examination or persuasive speeches go largely undiscussed.

The barrister’s fragile ego is probably to blame. Advocacy isn’t the only important skill but it’s always centre-stage – and other abilities, like analytical power or knowledge of the law, often only matter to the extent that they affect persuasiveness. And there’s a significant element of talent to it of course. So it easily becomes part of who we are, deeply bound up with our sense of self-respect – with our very sense of self even. You might overhear a silk saying, with a whiff of false modesty, “I leave the legal arguments to my junior – he’s far better than I am at that sort of thing”, but you’ll never hear him say the same about cross-examination or speeches.

And not only are fragile egos at risk but also it’s practically impossible to measure the effectiveness of a particular advocacy technique – and so it’s extremely hard to justify a particular approach. If you explain to someone that they have misunderstood a statute there’s a good chance that if you’re right they’ll say “Ah yes, I see.” Mild blushing at worst. But any attempt to convince them that their cross-examination would have been more effective if structured differently is doomed to failure, and will likely result in extreme defensiveness and an enemy for life.

Another reason for not discussing advocacy is that it’s a bit of a Dark Art. Even keeping well away from the sort of thing an opponent might regard as a bit sneaky, analysing the tactical intentions behind a piece of advocacy does little to bolster the conceit that justice, rather than winning the case, is our goal.

But to get better at advocacy we need to talk about it. In particular, we need to give names to the techniques we use in order to quickly recognise the relevant opportunities and pitfalls when they arise, and to distinguish good from bad, or good from better.

So that’s one of the purposes of this blog.

I’m also interested in tactics and chance. Tactical decisions in a criminal trial, as in life in general, tend to be probabilistic. The aim is to maximise the chance of the desired outcome. But how do we calculate probabilities from the mess of unknown or partly-known variables we find in the courtroom?

There will also probably be the occasional piece on the law – an explainer, or a complaint about some ambiguity in a statute or judgment. But I intend to keep that sort of thing to a minimum.

Comments are always welcome, even if hostile.

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