A historic art with a bright future

The Lord Chancellor Lord Irvine argues that today, a new type of advocacy is needed for a reformed justice system.

More than 40 years ago, Norman Birkett argued that advocacy was the art of persuasion and presentation – an observation, he noted, that the Roman rhetorician Quintilian had originally made some 1800 years before.

In the language of the 1990s, advocacy is, at base, the art of communication. And what could be more important in today's world?

Advocacy demands communication skills of the highest order – but it is much more than simply talking elegantly, or even convincingly.

In fact, I believe the use of advocacy as a synonym for speech will become ever-more misplaced as the justice system is reformed and modernised.

The advocate has two prime duties: to use their skills to expose the truth; and to ensure that the judge and, if appropriate, the jury can see the case from their client's perspective. It is a role which goes to the heart of delivering effective justice.

Excellent preparation is the backbone of successful advocacy – long hours poring over volume after volume of case papers is a familiar image to all who have made their careers in the law.

Eloquence can be learned, but nothing can beat knowing a case inside out. It is only when armed with the facts that the advocate has a chance to see the chinks in the other side's armour.

But the advocate will fail to make the most of these opportunities if they have not learned one of the other key skills needed – active listening.

There will always be a place for the advocate on their feet in open court, not least in criminal proceedings. But in the new civil justice system, the wider skills of advocacy – including written advocacy – will become increasingly important and valuable.

Effective advocates are able to smooth the path of justice by making a case easier to understand – by making plain the most important facts and eliminating room for confusion by expressing submissions in simple language. They speed things up, not slow them down, by striking at the heart of a case quickly and cleanly.

The civil justice reforms will contribute to promoting good advocacy.

Thorough preparation is the key. That preparation will be greatly assisted by an important new initiative in civil justice – pre-action protocols. Where possible, pre-action protocols are intended to facilitate early settlement. If a settlement proves unachievable, then the protocol lays down a code which will help parties prepare thoroughly for litigation.

This is where the skills of the advocate come into play. The effective advocate marshals the facts, looks critically at the evidence, analyses the options.

Preparation is the watchword. The protocols will help to shape that preparation and the judges will impose the toughest sanctions for non- compliance.

And, have no doubt, careful preparation will become ever more vital in the reformed civil justice system, particularly for cases which are to be heard in the fast track. Those cases will be subject to tight – and judicially enforced – timetables.

Advocates should expect the fast track and the multi-track to have a profound impact on their working practices. They are going to have to learn new ways of deploying their skills. Written advocacy will grow in importance, as will ability to build a case on written evidence.

Advocates will find they no longer have the same opportunities to question expert witnesses. Expert evidence will be allowed only with the court's permission. Even then, the emphasis will be on written evidence.

Oral expert evidence will be the exception, not the rule, particularly in the fast track. This will require a considerable change in approach for some advocates.

Working within these boundaries, the advocate may find the opportunity for advocacy circumscribed; but they can still be highly effective. That will depend on two factors: their level of personal skill; and the thoroughness of preparation before the case commences.

Eloquence in court, of course, will still be vital, but so will all those other factors which make someone an excellent communicator.

The civil justice system in England and Wales will shortly be subject to radical change. The system will remain adversarial but, at the same time,it will take on more co-operative, inquisitorial features.

But what will not change is the important place the advocate has within the system. The advocate will continue to be a key player in the court room, and in case preparation. The reason is simple: the delivery of justice depends on achieving understanding. No matter how the form and procedures of civil justice change, we will still need the services of effective communicators.

And, as I said at the beginning, that base is what advocacy is all about.