And let that be a lesson to you . . .

David Pannick, QC

So you want to be an advocate? You are looking forward to conducting a devastating cross-examination, securing the acquittal of a client at the Old Bailey, and winning that important case in the Court of Appeal. But you will encounter less successful, and more stressful, weeks in the law. So it may assist to keep close at hand, as I do, a cathartic collection of cuttings about advocates whose advocacy was so unappealing that it will make you feel better however awful your own courtroom experience may be.

In that spirit, I offer students my Top Ten principles of advocacy that, if followed, are guaranteed to ensure that you will not suffer the reaction experienced by a lawyer in a Tennessee court in 1981. The judge told counsel during his submissions, “We shall have no more of this”, and issued an injunction to restrain him from bringing any similar cases in the future.

The first principle is that advocacy is demanding, so ensure that you allocate generous amounts of time for preparation. In the United States Supreme Court in 1972, the assistant prosecutor from Louisville, Kentucky, was asked by Justice Douglas why his argument was so perfunctory. “Your Honour must realise,” the advocate replied, “I am a very busy man.”

The second principle is make sure that you have command of all the relevant facts and all the relevant law. Do not take as your role model Lionel Hutz, the lawyer in The Simpsons, who tells the judge: “I move for one of those bad law thingies.”

Principle number three is that you need to respond to the questions from the court and to address what interests the court. Do not reply to questions from the judge by saying that you have not come to court “to listen to a whole lot of stuff from you; I am not in the mood for it”, the response of an advocate in the District of Columbia in 1969.

The fourth principle of advocacy is that the unexpected will occur while you are in court, but you need to stay focused on getting your main points across, whatever the distractions. Even if you set fire to your trousers while arguing a case as happened to an advocate in Montana, in the US.

Principle number five is do not ignore the weaknesses in your argument. Like the Canadian lawyer in a trial in the 1980s who, during the judge’s summing-up, tried unsuccessfully to distract the jury from focusing on the evidence most damaging to his client by “brushing his teeth at the counsel table”.

Principle number six states that lengthy submissions are not better submissions. You need to cover the ground, but judges are busy people who welcome a presentation that is efficient in its use of time. In an admittedly extreme example, Sir Arthur Irvine, QC, Solicitor-General from 1966 to 1970, is said to have made a closing speech for the prosecution in one criminal trial that consisted entirely of the words: “Well, members of the jury, he did it, didn’t he?”

The seventh principle is that although you want to win the case for your client, there are limits beyond which you should not go. In a case in New York in 1944, defence counsel “picked up a candlestick and struck himself on the head with it to show its ineffectiveness as a murder weapon”. (His client was convicted). You do not need to do this. As Lord Esher, Master of the Rolls, declared in 1889, counsel is not “bound to degrade himself for the purpose of winning his client’s case”.

The eighth principle is that humour is a very dangerous weapon in court, to be avoided in other than exceptional circumstances. There are very few people who can laugh the opposing case out of court. It is highly unlikely that you are one of them. Counsel for the state of Texas began his argument before the United States Supreme Court in 1971 in the abortion rights case of Roe v Wade by referring to the two female counsel for the plaintiff: “It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed.

Principle number nine states that however strong the provocation, never insult your opponent or the judge. It is unhelpful to accuse the Judge of “Stalinism and Hitlerism and Mussoliniism” (the submission of counsel in a US federal court in 1965), or to submit (as did counsel in an Ohio court in the 1980s): “Let the record reflect that the judge is an unmitigated liar, unmitigated, unequivocal liar.”

The tenth and most important principle is always to remember that you will never present a perfect argument. Robert H. Jackson wrote that, as Solicitor-General of the United States in the 1930s, he made three sets of submissions in every case: first, the one he planned (“logical, coherent, complete”), secondly, the one he actually presented (“incoherent, disjointed, disappointing”), and thirdly, “the utterly devastating argument that I thought of after going to bed that night”.

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

http://business.timesonline.co.uk/tol/business/law/article3859034.ece