The way to do it...
13 August 1996
Advocacy training for English pupil barristers has recently been revolutionised by a method of training introduced by the Australian judiciary. It has been adapted and developed by the Inns of Court and now forms the basis of continuing education for pupils. The philosophy of the method is simple. It acknowledges that the best way to teach skills is by example and that trainees can only absorb one point at a time.
Previously, some took the view that advocacy could not be taught at all. Others expected pupils to learn by osmosis - it was hoped that by sitting in courtrooms or reading books they would absorb the skills they needed. More recently, trainees would attempt an exercise and then a teacher would list their mistakes and tell them to do better next time.
The flaw in these approaches is easily explained. When I was taught the new method, an analogy was drawn between learning advocacy and tennis. There is little point in suggesting that a tennis beginner should watch plenty of tournaments to pick up the game, or that they should read how to do it in a book. Equally, no tennis coach would attempt to teach a beginner every shot at once.
Although the philosophy of the new method is simple, it is hard work for both trainee and trainer. In order to teach it, you have to be taught it yourself, and the Inns of Court have undertaken the task of instructing new trainers who range from junior barristers to Appeal Court judges. The training is daunting because in order to demonstrate advocacy, trainers must confront their own faults and bad habits.
The basic lessons for trainees concentrate on teaching proper and effective examination-in-chief and cross-examination. They begin by developing the trainees' case concept: what are they trying to achieve and how will they go about it? At any stage, the trainee should be able to tell the trainer the purpose behind any question.
The teaching normally takes place in groups of six to 10 trainees, with the others playing the parts of witnesses and the trainer acting as judge. The trainer often gives a demonstration to the group at the outset. Then a trainee begins an examination-in-chief or cross-examination and continues until the trainer finds a fault for correction. The trainee is then interrupted and the trainer identifies the fault. The trainer explains why it is a fault and what can be done to correct it. Then comes the difficult part: the trainer demonstrates how to find out what the trainee was looking for by asking the question(s) in the correct way.
Immediately afterwards, the trainee tries to put the demonstration into practice by continuing the examination for a few minutes. Feedback can be given straight away or at the end of the session. A video recording of the exercise is useful, if the course budget and timetable permit it.
Although it is not possible to learn advocacy by reading about it, it may be useful to list the main faults which nearly all beginners make.
Common faults in examination-in-chief include: asking leading questions; when pulled up for asking leading questions, falling back on just asking "What happened next?", which is likely to leave the witness lost and/or out of control; and abandoning a point if the witness is reluctant or hesitant in giving an answer.
Common faults in cross-examination include: open questions which invite comment or argument (these may allow the witness to take over and dominate the cross-examination); failing to stop a line of questioning after receiving a good answer and pushing it until the witness gives a bad answer; drifting around, hoping to come across a good point; and the roll-up question, which contains so many questions and assertions that the point is lost and the witness becomes confused.
The Australian method can be used to teach all who want advocacy training. It was tried last summer during a course for trainee solicitors from a consortium of five City firms. We found the trainees took to it quickly and enthusiastically, and the course is now well established. Even those who had no desire to be advocates thought the training would help them generally with their presentation skills.
Those who have been involved with the approach have no doubt about its effectiveness. Its "show me, don't tell me" technique builds the confidence and ability of trainees and also wonderfully concentrates the minds of trainers.
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