Advocating a working relationship
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3 December 2013
There is much more to being a barrister than using advocacy skills in the courtroom, argues Rosemary Samwell-Smith. Rosemary Samwell-Smith is a principal lecturer at the Inns of Court School of Law. This is an extract from her speech to next week's Worldwide Advocacy Conference. The word "advocacy" popularly evokes the concept of a courtroom showdown. The perception is of adversarial advocacy in a forum in which legal disputes are resolved and where advocates do battle on behalf of their clients; where eloquent closing speeches can sway the tribunal of fact; where there can be only one winner; and where the winner takes all.
So it is not surprising that many students who embark on the vocational stage of training to qualify as a barrister are shocked to discover that the skills they need to acquire to become effective advocates are not only those that equip them for trial but also those that enable them to perform a number of other important functions on behalf of the client long before the matter proceeds to court.
Advocacy is not a term which applies exclusively to the lawyer's performance in court. It encompasses a range of skills and tasks which an advocate is expected to carry out when instructed to represent a client both in and out of court and before and after any hearing.
It involves, inter alia, legal research, case management, opinion writing, client conference and negotiation skills, all of which are a necessary part of an effective advocate's repertoire of qualities.
The client conference is the beginning of the lawyer-client relationship and the stage at which the advocate must gain the client's confidence. It is also the point when many decisions are made which will affect the outcome of the case.
The best interests of the client are paramount and the client's instructions must form the basis of the conduct of the case. It is clear that at this stage the skills of the advocate are vital to the conduct of the proceedings and the outcome of the case.
Concern about barristers' ability to communicate has been underlined by Mr Justice Latharn. He has said: "One of the frequently voiced criticisms of the Bar... and indeed all people who operate in professional disciplines, is that we do not communicate well with our clients. We live in our little jargon world and we fail to recognise... that we are trying to get a message across to somebody in a way which conveys the relevant information to them, and gives them comfort insofar as they can get any true reassurance."
For example, one pupil commented: "I had no idea how difficult clients could be and how important it is to establish a working relationship with them... I think I would have found the task much less daunting if someone had explained in detail the basic techniques and pitfalls."
This concern was shared by another junior tenant who said: "Problems in relations with clients are varied and have included difficulties in dealings with juveniles and mentally disordered offenders, clients that were simply awkward, clients that said they were innocent and wanted to plead guilty, and difficulties with clients and their relations when clients thought they had not got a good result."
The Inns of Courts School of Law takes the view that it is unwise - almost impossible - to prescribe any fixed set of rules, although there are some classic errors to be avoided.
What is of fundamental importance is the need for flexibility. Every barrister has a different personality, every client is an individual. So it is obvious that every client conference will have its own unique requirements.
But there are some golden rules. Barristers must be fully prepared at a client conference and ready to give a preliminary view about the likely outcome, such as how long a sentence may be given.
They must be adept in cross-cultural communication and put aside any preconceptions. Barristers must also listen to what the client says rather than relying on preconceived ideas of what they might say.
They must also realise that every case is different, every client distinct, and that they must work through what their client hopes to be achieved by the conference.
In short, the skills which the advocate needs to conduct an effective and efficient client conference are just as complex and demanding as those advocacy skills used in the courtroom setting. They are at least as important in shaping the outcome of the client's case.
A skilled advocate is one who, at the client-conference stage, ensures that all sensible options are properly explored with the client; that the decision on how to proceed with the case, even if it means taking the matter to trial, is the best available to the client; and that whatever the decision taken, the best interests of the client, both short-term and long-term, are considered fully.