From Shakespeare to Silk, via Atticus Finch and Horace Rumpole, the advocate has always occupied a proudly heroic role in fiction’s psyche; the noble maverick fighting with an armoury of eloquence, wit and moral fibre to protect the underdog from the malevolent forces in society is an icon which will always be a source of inspiration to authors and law students alike.
Many real advocates would contend their function justifies such reverence. In common law jurisdictions, skilful advocacy has played a vital role in shaping the boundaries between the power of the state and the rights of the individuals. In 1961, as part of his ‘Six Great Advocates’ lecture series, Lord Birkett observed that:
“The advocate no longer plays the part in our public life that he once did. The fashionable divorce suit, the sensational libel action, the great murder trial – they are no longer the dramatic events that once occupied public attention to the exclusion of almost everything else. The television star and the film actor or actress, idolized by millions, now take pride of place.”
Lord Birkett would no doubt have been astonished that in 2016 one of the most talked about news events was a Supreme Court case delineating the extent of the Royal Prerogative, and that its central protagonist, Lord Pannick QC, would acquire an almost rock-star-like following.
While the rule of law is at the heart of democracy, those who seek its protection in the courts will always need those who can argue their case accurately and effectively. But as society changes, so too must advocacy.
In times of economic hardship, funding lawyers is never going to be a ‘vote-winner’ for politicians. In recent years the justice system has found itself on the receiving end of a series of dramatic reforms aimed at reducing public expenditure. Cases are much more closely managed with the aim of reducing court time and weeding out weaker cases. IT is being used more extensively – to such an extent that it is likely in the future that civil claims with a value of £25,000 could all be resolved online.
Whether these changes deliver ‘justice’ is debatable, but as the justice system changes, advocacy will change with it, as it always has.
The ability to be heard clearly in a large courtroom will be replaced with the ability to make oneself audible over a videolink. The advocate who can effortlessly navigate a complex bundle of papers while making submissions to a judge will need to be able to replicate that skill with a USB full of PDFs. The flamboyant oratory of yore will be replaced with efficient, focused, written submissions.
We will never know what Rumpole would have made of online courts. He is unlikely to have been an enthusiastic early-adopter. While the advocate of the future may be as much a technician as a performer, his or her role as a champion of the rule of law will remain; the profession may lose its romance but it should never lose its purpose.
Jeremy Robson is director of the Centre for Advocacy at Nottingham Law School (part of Nottingham Trent University)