Argument Advocacy

Hello. My name is Alice the Heart. And can I welcome you to this data law? Webinar on argument advocacy In the modern world, argument advocacy has taken on a totally different meaning. Yes, there are probably many advocates out there who can cross, examine, examining chief and re examine a witness. But one of the core fundamentals of advocacy is often for gotten that off the presentation off what is, in effect, an argument to a court or a tribunal. During the course of the next 30 minutes or so, I'm gonna be taking you on a journey on putting together the various component parts which go into making up an effective argument on thereby creating, if you like the perfect submission for a court or tribunal. Now, these skills are transferrable across all disciplines. What I mean by argument advocacy is, of course, the presentation off an argument to a court or tribunal. Whether that is an application for summary judgment, whether it is arguing for the exclusion of a piece of evidence on a watt deer in a criminal trial, or indeed, whether it's anything to do with appellate advocacy or any form of application that you may make the skills involved for the advocate are the same regardless off the exercise. What am I hoping to achieve today? Well, I'm really gonna break the webinar down into three parts. Firstly, I'm gonna look at what I mean by the argument. What is an argument? What goes into making a good argument, Then in the second part, we're actually going to look at how you prepare that argument. And I'm gonna give you a suggested approach to preparing that argument on once the argument is prepared. Once you have the materials to be able to present it, we'll look at the structure of the argument, how best to put it together in terms of what to tell the judge and when on then finally a little bit on the presentation of that argument. When you actually get into court off course, it's not for me to teach you a particular style of advocacy that goes back to if you've seen any of my previous whether now she will know that one of the second modern rules of advocacy is being true to yourself. I'm Therefore you can find your own style your own way of presenting the argument as long as you have the fundamentals. So let's start in the beginning. What is, in fact, an argument will. Any argument that you make to a court should really be, I suppose. Summarised as this. It is a Siri's off structured propositions. Those propositions are supported by reasons on those reasons will seek to persuade your tribunal as to your point of fact or your point of law towards your desired and go on. That really in summary, is what the argument is. How does the argument work together in practice? Will, of course, any argument you make, whether it's an application or a closing submission at the end of a trial needs to be based on evidence. It must also be based on legal principle. Andi, In so doing that theory that you put forward that argument that you present must be consistent with your analysis of the case. If you like your case theory on, indeed, consistent with the onus of proof depending how that falls in a particular case, As I've said already, general principles off effective argument, which is which are what I'm gonna deal within this webinar applied to, no matter what the argument you are presenting. This could be an interim application. It could be an argument about evidentiary issues in a trial. It could be a final speech. It could be an appellate argument. The principles, ladies and gentlemen, uh, the same. So what are the three types of argument? I suppose that one comes across most in practice. Well, firstly, on this is mainly for appellate advocacy or certain jurisdictions where matters of fact don't really come into play. That is where the argument is one off pure law. That is where you are seeking to persuade your court or tribunal off a particular interpretation of statute. It may be the applicability of certain case law. It may be some other legal principle or authority, but your argument is presented as purely one off law. Flip that on its head. You may have cases where the argument that you are putting forward is purely one off fact on again. One would find this mostly in submission, advocacy or speech advocacy in criminal cases, because what you are persuading the jury to do, or persuading a lay bench of Magistrates to do is to find factually in favor off your state of affairs for which you are contending on that, of course, is transferrable to other jurisdictions. You might be making factual arguments about the credibility off certain witnesses on then, of course, in terms of trial at because he probably the most common in my field of employment or one tends to find that this is the general form off a closing submission in a case in that it is a combination off both the first element and the second element. That is to say, you are making arguments about fact and what happened because you need to get those factual findings in order to win your case on Once you have succeeded in getting those factual findings, you then move on to the law. You then move on to the application of the laws of that factual scenario to get the desired end result. What, therefore, is the key to an effective argument? Well, I can sum it up in one word on this takes me back to the days when I learned advocacy under the the Great teachings off. She is now on a judge Joanna Corner on his honor, Judge Anthony Lend the key to any effective argument is persuasion. You must acquire the knack off persuasion because a persuasive argument is one that is more likely to be accepted by a court or tribunal, if I may, Can I quote from Justice A. F. Mason writing in 1984 in his book The Role of Council in Appellate Advocacy on Justice Basin said this on I apologize that my eyes will go slightly above the screen to my prompter because I haven't learned it off by heart. But Justice Basin said this to off council. Forget that advocacy is an exercise in persuasion rather than a defense or a statement. Off position Persuasion calls for not only a mastery of the materials but also for an element off, constructive imagination and boldness off approach, thereby bringing in. I suppose some of the things that many of us advocates would have learned in our junior dates about the effectiveness in our duties to the court on that we must pursue our client's interest with everything that we have. So how do we get a persuasive argument? Will. The easiest thing to do is to actually go long back long before my time and go way, way back in history to the writings of Aristotle on Aristotle, as you, some of you will know, wrote a very detailed text entitled Rhetoric on What Aristotle says in his work. Rhetoric is still most valid for us today. In terms off the construction of an argument for a court, Aristotle said that a persuasive argument should contain three things. Firstly, logos. That is, if you like logic, and I'll come to each of these components in more detail in a moment. Locals logic. Secondly, e thoughts or credibility on Thirdly, PAPELES empathy. And if any argument you make contains these three components, it will be an effective argument. So let's add a little bit of flesh to the bone off those. What about locals? Well, a persuasive argument should be logical in its reasoning. Andi structure it must be The various parts of the argument must cohere. There must be like a gearbox of synchro mash in order for the logic of the argument to be put to be conveyed to the court. This requires carrying out a process in your minds as the advocate off logical reasoning, that is to say, what are the logical strengths off your case, but flipping it on its head. Of course, what are also the logical weaknesses off your opponents? Case on? For those of us who have been around the block on advocacy circles, you will know that very often it may be the case of finding logical weaknesses in your own gets, because it may be in certain cases that you have very little to work with. In other words, the argument that you make should lead logically to the ultimate conclusion for which you contend. In other words, it's the because test, it's the white test. Not in a case saying, well, standing up and making a submission and saying, Well, in my submission, Your Honor, you should prefer the evidence of Mr Hodge to that of Mr Turner. Well, that is your submission. That is your argument. Yes, you want the judge to find that. But what is the what about the why I remember the why as to why the judge should actually find that on. There may, of course, be a particularly valid reason for that. Justice and Ainsley Wallets, who is a fellow venture off the temple, gave a lecture earlier in 2016 and made the most wonderful comment about what I would call the the antithesis off the good argument. And that is she referred to it as the Christopher Columbus submission Christopher Columbus call set out from Portugal or Spain or wherever it is he wants. And he went often discovered America. But think of the Christopher Columbus submission as the antithesis off the logical submission. Number one. When Columbus left, he had not the slightest idea where he was going. Number two. When he got there, he had not the slightest idea where he wants. On three, When he got back, he had not the slightest idea off where he had been on. That is the antithesis off the logical argument, because the logical argument will give the roadmap or in Columbus is case the see chart to show you where the argument is going. Of course, a logical argument is supported by the evidence you will need to intermingle the evidence into your argument, and that really come brings in the why Why should the judge prefer the evidence of Mr Turner? Oh, because off the chunk of cross examination that I performed at 11:37 a.m. when I put it to him on, he agreed that he had misled the court in his witness statement or whatever. It may be the structure. It is also important, as I've said, that Christopher Columbus antithesis structure means that the judge will never know where you're going. If you if you if you like, begin by giving the judge the roadmap, tell the judge what you're gonna tell them, tell them and then tell you what we've told them. That at least gives them the direction in which your argument is going and it will make it more attractive. It will make it more persuasive, however, if you simply begin with a statement of facts like John said. This and Mary said that. And Peter said this without any context to those statements without any conclusions to those statements, then the decision maker, I judge Will will not be following the argument. The benefits off the tell you to tell the judge what you're gonna tell them. Tell them and then tell you what you told them. The advantage of that structure is really fourfold. Number one. It's easy to understand that it is very easy for the decision maker to follow that particular argument. Secondly, it enables the judge to evaluate the supporting propositions when the conclusion is first stated. In other words, like case preparation, it's going to your end goal and working backwards. It also, and I know some of you will be scared of this and don't be. I mean, it's brilliant because beware the silent judge. You don't want the judge that simply sits there and speaks to you and says Very, very little. You want to encourage a conversation with the judge you want you want to engage with the judge on using this particular structure will enable you as the advocate to develop the argument for so much for logos, everything being logical. Let's move on to the thoughts now. Ethos refers to credibility. It's about correctness in light of human experience on knowledge, but not necessarily logical, because the two, if you like handed hat it is twofold. It is the credibility of the argument that you're presenting on the credibility of the person presenting the argument to that degree. In some jurisdictions, it may become quite a bit about reputation and character. In order for the argument to be credible it must be realistic and balanced. You know it can't be something far fetched. You can't sort of say that a particular collision was caused because a bus driver was distracted because there were two pigeons making love on top of a postbox 20 yards away. When there is no evidence of that on, if there is no evidence of that and it's a totally off the wall submission, it doesn't work. It lacks credibility. It lacks the thoughts. It has to also be consistent with human understanding and the way the human mind works. Because remember that judges are human. It must also be sensible. So, in other words, it whilst it needs to be attractive and will come to attractive ITI in a moment you can't push the boundaries too far on that. Just a few points, if I may, on the arguer the credible are cuma off course you Are you to be trusted by the decision making you need to have their confidence on. This entails general good court behavior, being respectful in dealing with your court and in dealing with your opponent. If the court is able to trust you, then great argument will be more, the other will become more persuasive to the decision maker. The common things that I see in court, which, if you like, destroy the credibility of the arguer, I could state them very quickly. Number one, of course, is key. Is lack of preparation where an advocate misstates the evidence or the law? If it has a lack of cohesive structure of The Advocate is overstating the argument if it's unbalanced, if it's unrealistic, or simply just pursuing totally unsupportable on unsustainable arguments will mean that the decision maker loses trust in you as the arguer off the government. Let me turn now to the third component of Aristotle's argument, that of path ALS. This is slightly will yer to describe, but nonetheless for still off significant importance. A persuasive argument must be empathetic, not sympathy it. So in some cases in jury Charles, you want sympathy, but it must be empathetic. It must involve you as the advocate making a serious connection and a realistic connection with the thinking. Andi, feeling off your judge whether that be a crime called judge, a high court judge, district judge or whatever on this regards. This requires a degree of sensitivity and tact on your part. You still have to commit to the argument, and you still have to show the passion for it. But don't obviously egg the pudding over egged. Putting tact is a wonderful thing for those of you who have seen having youngest 10 Commandments of Cross examination. You will note that there is a section in there where he talks about the effective argument to the jury that it must have a degree of tact, and he uses the example of a man who is on a murder charge on. He is running an insanity defense on the defense. Call the defendant's mother to give evidence at the trial, and Irving touches a little bit on the cross examination of the mother and how you would cross examined cross examined. But what he does, he jumps to the to the end result. When you're standing in front of the jury closing the case, what are you going to say to the jury about the mother who comes along? T give evidence in support of her son's insanity effects? You look at the jury and say she's a liar. No caution, all because that lacks tact. That lack sensitivity on the more persuasive argument will be the one that has that degree of sensitivity and tact on deserving goes young on to say, What does that advocate do in that situation? Well, he simply looks at the jury and said, Well, ladies and gentlemen, she's his mother. What? What else do you expect the mother to say in support of Assad? And you leave it at that? It doesn't need any more than that. The point is well made on deserving concludes. Which is rather amusing, he says to his audience. And what's the first thing the jury going to say about the mother when they go into their retirement? She's alive and she is misleading the court or whatever. It may be eso you need to have that degree off a passion. So putting all those points together, it's gonna be logical it's gonna have credibility on. Of course, I can't give you the right argument for every single case. I can't give you a cookbook of recipes for every single case you do in not every case will you find the best argument, but you do what you can with the material that you have got available, but the basis of the argument itself. Now we know about our structure, and our romance comes back to one word. And this word has been emphasised in recent times by again a fellow venture of mine at the inner Temple. The great Professor Sir George. Professor George Hampel QC. Now George at the moment is emphasizing the need in argument advocacy to deal with the concept of what he calls privacy. Now buy privacy. What we mean is nothing to do with the top of the food chain or anything like that. What George means is putting the most effective argument. You have the best argument that you have. First, it is starting with something in your submission that will engage the listeners attention straight away on it will also engage the listeners interest straight away on this really is. It's all about positivity. It's all about finding. And again I know there will be cases you do where it is difficult to find that point of primacy because maybe along the points are going to be against. But they'll be something there be something you can graveled that gives you a starting point that gives you a strength to begin with that will actually attract the listeners here. Be positive with it. Run with it. Be confident with it. Try at all times. Teoh again. The primacy argument will focus your mind on this. Don't try and avoid. Don't try and just simply repeat your opponent's argument to deal with it that gets, you know where you need this degree of positivity. You need a a positive point that you can make to the judge off course within that I don't demean this in any way. In certain cases, you will have to deal with the weaknesses in your own case on you. Deal with those to the best of your ability, with the materials that you have without inventing evidence and without doing arguments that lack any form off credibility. So we've got the argument. We've got the structure of the argument. We know what we're gonna go. How do we do it? How are we going to stand there and actually present? Well, a few tips from me. We've got our progressive structure again. It's that road map. It's that see charters, telling the judge what you're gonna tell them telling them and then telling them what you've told them on that opening section is very important, and it's very important because you can do it almost in in bullet point fashion, Your Honor. There are three reasons why the claimant should be successful in this case. 123 and then add the flesh to the bone. Then add the detail to each of the points that you made by weaving in the evidence, and then concluded one thing that I see quite off advocates who do not treat their tribunal or court as a first time listening. Yes, in certain cases, it will be true that after having heard all the evidence that the judge will almost have the same degree of knowledge on awareness of the case, as you do as the advocate, the very often judges won't you have to remember sometimes that judges will have an exceedingly long list of cases they may not have had on amount of time to read the material in the same depth as you have read the material so at every stage of your submission, unless you get the indication from the judge. Mr Hodge, I've read the pleadings. I've read the witness statements. I read your application notice. I've read your skeleton. Can you just take me to your main points when you get that indication from a judge than you're home and dry? Because you know that the judge has read everything. But if you But if on until you get that indication from a judge, always treat your judge as a first time listener that they are coming to this with fresh eyes on at the end of the day, you still know more about that case at this point than the judgments. Obviously, there will be complex arguments that you will have to make. Try if you can, to reduce those difficult factual arguments in those difficult legal arguments to very simple propositions that takes experience that takes time on. There is no easy way to do it. What I often think about in terms of this simplicity is to actually on. You wouldn't obviously sit with the judge with a pint of Harvey's best bitter, but very often you can acquire a degree of simplicity is an advocate by using a technique off telling a friend down the pop or a wine bar, or wherever you may be about a particular case because the person you're in the public probably isn't a lawyer, and they don't understand the law. They don't understand how the process works on. Therefore you have to. When you're explaining you're argument to them, you have to reduce it to its most simplest so that they will understand the argument that you are making reiterating something I've already said. Of course, you state your argument and then you sort of bring in the reasoning that support or whether that be legal reasoning or factual Recent Again, I restate in terms of the presentation. Be open to your judge. Listen to what the judge asked you. I'm often asked on. This is an important point. I'm often asked. Well, what happens if a judge decides in the middle of your beautifully flowing submissions to interrupt you on toe, ask you a question to which you do not know the answer? Well, firstly, two things two things will happen. Number one, you're standing there in court and you will freeze. It's happened to us all. I've been there. You stand there and you sort of almost of Mr be next, although not quite Mr Being you stand there and you go on inwardly, everything is checked because the judges raise something off the top of your head. You simply do not know the answer to that particular question. What do you do? Well, the first thing you do is you don't pack. Easy to say, far less easy to do. But the second thing you do is you say to the judge, My lord, may I have a moment now? Buy a moment. I don't mean 10 minutes. I don't mean in a German. What? I mean, here is between 10 and 20 seconds thinking time because it may well be. And in my experience, in 90% of occasions when this happens, if I don't instantly know the answer to a question off the top of my head, a short bit of reflection, a short bit of thinking time, I will be able to answer the judge's questions. If after 20 seconds you are still none the wiser, then it's better. Ladies and gentlemen, to be cut to come clean on Just saying, My lord, I'm afraid I might able to assist you further on that point on that, if you like, is code between advocate and judge that I don't know. I can't help you any further on it. And you move on to the next point. Lord Justice Laws gave a talk many years ago, the inner temple and he he raised what one thing which I always love to throw in here on Lord Justice Law says in terms of a palace was appellate advocacy. But if But if he raised something with an advocate, he would absolutely love it where the advocates said, My lord, I'm gonna deal with that later Now Muster Laws was not keen on this particular turn of phrase for two reasons. As he pointed out, Number one is the advocate. You don't want to be there later. You want to be back in chambers away from the rough off the court of appeal. And secondly, as Lord Justice Law said, Hey doesn't want to be there later. The reason he's asking the question there and then it's quite simple. He wants to know what the answer. It's so always ask what always answer questions, if you can. When asked, Avoid, of course. And I said I wasn't gonna teach your style, but avoid ation of lecturing or rhetorical style on that will get you nowhere. It can show a degree of arrogance, and maybe such things are reserved for the more senior advocates. But try always to remain measured. Pace and timing are important as well. You cannot deliver your submissions to quickly. One of the techniques that I use with junior advocates in an attempt to slow them down to make them deliver more slowly is twofold. Firstly, imagine that your judge or tribunal who are sitting ahead of you imagine that they are in their mid to late eighties. Sometimes it's very difficult to do if you got young judges. It's very difficult to imagine them with silver hair and wrinkles and all that sort of thing on the other thing to do. Combining it with that is to imagine that the tribunal or your judge is slightly hard of hearing. Now. I considered look at my screen there and I can chat away and no imagining that somebody is 80 or slightly hard of hearing. But if I do, if I go to my grandfather's care home in Beautiful In Purchase, where he's residing for seven years, great man, my grandfather, 98 years old now 99. Next year, third looking forward to the celebrations. But when I speak to him, I slow down and I very my pace accordingly, and I make I take care to enunciate every syllable. I take care not to speak too quickly and with a bit of luck using that pace. Imagining on octogenarian who was slightly hard of hearing the submission comes out in a measured way. Of course. Don't take this to its extreme because sometimes, and I've seen advocates do this, it becomes what's known as the care home routine. Hello. How are we feeling today? No, you don't want that because the judge will sit there and go. Mr Hodge, what's wrong? Because that's what judges will do if you go too far in terms of authorities of your referring to legal principle, obviously, state principles for what the case stands, rather than reading chunks of a judgment. If you are going to cite passages from a judgment, try and be as concise as you possibly can actually find the rial words that matter to your case, Uh, on that will stand you in good stead when dealing with authorities. So there we are that really? In a nutshell is are the rudiments off arguments? Advocacy? Let me therefore closed by giving you a quick checklist, things that you can do in your daily lives that will improve your your argument. Advocacy. Remember, apply logos, ethos and pathos. If you can get a bit of logos, ethos and pathos into every submission, you make so much the better, and you will grow as an advocate, you will be nurtured. You'll germinated. Receive on you will blossom into the great flower that you see before you on the screen today. Structure your argument. Don't just repeat your opposing argument. Get the structure together so it gives the judge the roadmap. Apply the principle of primacy. Remember, primacy is key. Get the strong point out first that will attract the listeners attention. Always keep an eye on your judge very apace. Listen to the judge. Respond to questions and use a conversational style. It's an engagement between you and the judge. Be tactful. Remember what I said about tact? Very often. The most effective argument advocacy eyes tactful on obviously speak at a pace at which the judge will either to be able to take a note or be able to follow the argument that you are making. If you go too fast, then obviously the judge may miss key points that you always she to make. Ladies, gentlemen, I hope you've enjoyed the last half hour or so. I wish you well in your advocacy careers. And I look forward to speaking to you against