by alexander w street sc version xvi1i: 9 may 2014
TRANSCRIPT
by Alexander W Street SC
Version XVI1I: 9 May 2014
The art of persuasion Compelling use of logic Effective communication Intellectually appealing propositions Interesting rational argument Identified objectives within the paddock of
strategy Inoculated by integrity and ethics
There is a role for advocacy from the moment a dispute has crystallised in which a resolution is to be achieved by a decision maker or by consensus
This means that the first correspondence should be enhanced by the art of the advocate
Wherever there are persons to be persuaded, be it decision makers or the opposing party’s clients/team, the artistic work of the advocate should be employed
Advocacy is not simply oral presentation. There are some senses that for reasons of decorum the advocate excludes
Advocacy is the combination of skilful and economic communication that engages and persuades the target mind(s)
Advocacy includes the unstated impact of learning, command, style and presence
Silence can be effective advocacy
The advocate paints with voice, body and appearance, trying to capture through eyes and ears the mind of the listener, or where in writing the mind of the reader
Measured sincerity and conviction can be infectious.
Determination, within ethical constraints, to succeed
Confidence and polish without arrogance Humility dominating hubris Calm and likeable Engaging and responsive Conversational in manner
As this is a dynamic art the quality of the work can only be improved by trying to master and refine your comprehension of the key principles and tools of advocacy
Constantly endeavour to improve the efficacy of brushstrokes that you wield
No great artist ever sees the conquest to excel as being over or the capacity to improve as being exhausted
The mirror revealing our own weaknesses or deficiencies in the creation of the artistic work of the advocate is always seen by others and the desire to self-improve should be constant.
Integrity (which includes candour) Clarity Logic Brevity
Preparation Reflection Refinement Lineal progression Critical / reflective / creative / lateral /
abstract thinking Forming issue judgment – techniques,
methodology, theories, interpretation, assumptions, accuracy
Research (law, facts, expert areas, witnesses, court)
Identify the opponent’s strengths Prepare persuasive answers Anticipate, if appropriate, how those
opposing contentions can be dismissed Anticipate, if appropriate, those opposing
contentions that require evidentiary / pleading answer
Appearance and control are important Avoid distractions of style, depiction of
disorder, flustered surprise, or team panic Have the papers properly organised Have the passages or paragraphs readily
accessible (copies for opponent) Have the books and passages readily to
hand Quality not quantity
Master the whole of the factual material Read and re-read the critical documents Identify the real problem and the real issues Identify the ambiguities of meaning,
inferences, specialist terms, matters of practice
Distil issues into fact and law Consider any conclusions of fact that must
be dissected Identify any other currently omitted
potential decisive issue
Formulate and check form of orders-within power, properly framed as final or interlocutory, certainty and consequences
Work up a sound and clear comprehension of the legal issues
Work up and prepare the potential evidentiary issues
Work up and reflect upon the adequacy of the pleadings, particulars where applicable, damages components and appropriateness of relief sought
Review whether new causes of action or defences should be added or replies amended
Reflect on res judicata, issue or Anshun estoppel
Prepare the salient facts – chronology – dramatis personae
Prepare the written outline of selected winning topics and sequential propositions
Prepare a statement of issues summary Prepare a list of objections Prepare the intended final address Prepare in writing the oral opening
Prepare the for the unexpected by reflecting on the merits and how they might be shifted
Prepare for the opponents evidentiary gaps and weaknesses to be cured by devising the next line of attack
Prepare for curing your opponents objections Prepare the preferable order and sequence
of witnesses and tender The two “can” prinicples
Collate the documents for tender Prepare for each witness’s evidence in
chief Prepare your witnesses Prepare for each witness in cross
examination- constructive/destructive Maintain the housekeeping list
Focus To avoid repetition To avoid omission To enhance flexibility To return to structure of the argument Preferably point form Monitor/ mark off
Remember in words you are painting a picture
Give attention to the detail of the scene that lends emphasis to the perception you wish to convey
Reflect on competing larger pictures – superficial dangers
Test critical steps in reverse The clearer the image, the clearer the
message Disarming simplicity
Be selective in the use of colour, florid jury openings and grandiloquence can pitch the case too high and by the very nature of the width of proposition open up avenues for material attack
Eschew humour – except in enthusiastic acknowledgment of that from the bench
It is submissions on behalf of the client that you are developing – not personal opinions or at large revelations as to your dull thinking process
We think metaphorically Unpack the unconscious conceptulisation We perceive issues by frames of value and
content Frame the issues – episodic or thematic – to
shift understanding
Engage the listener Listen to the listener Eye contact Welcome the judicial intervention and use the
opportunity to provide both a responsive answer and rebuild the essential proposition
Avoid repetition on the basis of your ineptitude and try to reformulate
Avoid disengaging conduct Selective and well thought out use of analogy
or extremes
Syllogistic logic. If … then Inductive logic. Why … because Deductive logic. Assume … therefore Metalogic. What are the logic system
components or properties Shift the equilibrium – by refining the vision of
equivalence through synonyms and antonyms Flawed logic-empty legal rhetoric – by
opponent Address real issues-forensically distinguish
material/immaterial
Identify the relevant version as at the applicable date
Master the history of the amendments, their commencement date and transitional provisions
Consider the potential competing interests Identify the purpose- the public interest – the
balance Consider the policy implications Identify any supporting secondary material Consider the provision as a whole, the
preamble and work in the relevant definitions
Consider surrounding provisions Consider the structure of the statute as a
whole Unlikelihood of absurd or no meaning Consider other provisions within the
statute using the same language Consider the relevant Interpretation Act
provisions Identify the leading authorities Identify analogous statutory provisions and
the leading authorities
How can you label the parts, being the essential issues in contest
Is there a higher level of useful description Is there a narrow definition of forensic
advantage Is the relevant organ in the nature of an issue
of substance, form, process, procedure, practice
How can you start from an interesting level of legal principle or insightful suggestion of competing cause – that drives your case forward and stalls your opponent’s
Is there a theme that weaves credibility / destruction
Extract and copy into each brief and comply with the applicable Practice Notes / Directions
Identify the statutory source or rules applicable to each category of relief claimed
Keep in mind any statutory duties – imposed on the court, the legal practitioners and/or the client (see s56(2), (3) and (4) of the CPA; Federal Court of Australia Act s37M – s37P) and sanctions (see s99 of the CPA)
Work with the Court (as far as practicable) and respond to the judicial breeze
Versatility of style and substance is essential Flexibility is an adornment Avoid the monotone or the lecturing martinet Fearless and forceful persuasion is achieved
by the power of cogent reasoning Fight the issue, not the person Conflict at the Bar table is unendearing Avoid insolence by expression or otherwise Leave scope for witness escape where the
wound will suffice
The golden thread of the law – a just and fair line The collected strands of thought into the strong
twine of clear sequential propositions The line of legal process – from pleading to final
orders The line of the advocate – upon which reason its
compelled to follow to success The distraction of breaks, or branches, in the line Unravelling the opponent’s knots or cutting
opponent’s line The shortest line to resolution – the straightest
The blobs of paint in inches of paper and trolleys of folders
Reduce the blobs to the critical picture, where is the gold
Don’t mix the blobs of paint in Court Select the Mona Lisa – discard the etchings Let the painting dry
What are the material incontrovertible facts
What are the critical contemporaneous records
What are the critical consistent facts What are the critical inconsistent facts What does common sense dictate Weigh the competing interests of justice Assist in the case management
What is the surrounding context Are there intertwined relationships or
relevant earlier history How does surrounding context impact on:
◦ probabilities◦ Motives / interests / weaknesses◦ credibility◦ absurdity- irrelevance, gratuity, ridicule,
mockery (dangers and advantages)
Keep the object in mind Revise and adapt the strategy Concede where necessary Select the best points Exercise sound reasoned judgment Be deliberative and constructive in the just
resolution
Introduction – what I am going to say – say it – what I said
Distil the contentious key issues of fact or law
Identify preferably in a single pithy sentence the nature of the dispute
Interesting, chronological and structured Time lines, critical milestones, star bursts,
charts, graphs, diagrams, photographs, video, samples
Convey the merit – merit maketh the case Avoid unnecessary contentious issues and
minimise the chance for interruption until completion of the opening (mark for identification)
Can a view or other real evidence yet to be tendered assist
Explain the likely areas of conflict – gloss with the competing probabilities and improbabilities
What increases the likelihood of truth
Highlight the smoking gun, the alarm bells, red letter day or other salient features
It was a Victorian practice to read the pleadings in opening and should remain so
Weave in the contemporaneous records or documents that are supportive / destructive
Convey the confidence of complete command of the case
Diminish or demolish the pertinent contrary contentions
Advantages in defining or redefining real issues
Tie in the diary, book entries, correspondence or other record to be used to lead or refresh your witnesses
Build or destroy witness credibility Is the credit issue influenced by the taint of joint
discussion, power of suggestion, displacement, reconstruction, fabrication, concoction
Convey an enthusiasm to assist the Court in its task Present material and submissions in a way that will
facilitate ease of adoption in a judgment Consider lowest levels of credit attack and
attractive escape paths for concession without destruction
Ensure audible with a respectful tone and pace Watch the Court and adapt as required Listen attentively to the Court Does the opening accord with pleading and
particulars (consider amendments), the intended evidence, instructions and ethical constraints
How will this opening impact on the prospects of settlement and tactical conduct of your case
What is the impact of the adverse use that may be made of the opening
Assist the Court in judging the beast by time estimates and sequence of performance
Prosecutor duty to conduct the case fairly and honestly: King v R (1986) 161 CLR 423 at 426
Must not press for conviction beyond full and firm presentation of case: R v MWR (1999) 113 A Crim R 308 at 309; R v Roulston [1976] 2 NZLR 644 at 654; Wood v R [2012] NSWCCA 12 at 574, 577-579. Bar Rules in particular 21,35, 37, 62-71
Disclosure of material that may be exculpatory – duty to call all witnesses who may give relevant evidence: Richardson v R (1974) 131 CLR 116 at 119, 122; Whitehorn v R (1983) 152 CLR 657 at 573-577, 682-683; R v Kneebone (1999) 47 NSWLR 450 at 457-461
“… the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor’s own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.” – Queen v Tran [2000] FCA 1888 at [130]
The prosecutor is not to address a jury in language which is intemperate, inflammatory or overzealous in nature.
“In opening for the Crown it is highly undesirable to use unnecessarily emotive language which, on any view, can only excite the sympathy for the victim or prejudice against the accused in the minds of a jury”
No part of the duty of counsel for the Crown to excite passion or bias
“Although there are no formal pleadings, as such in criminal trial, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case” (supra at [133]).
“The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.”, R v Tangye (1997) 92 A Crim R 545 at 556.
“If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final address”: Tangye at 556.
“Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed”: Tran at [148]; Robinson v R [2006] NSWCCA 192 at [142].
Must not convey to the jury the Crown Prosecutor’s own opinion, Livermore v The Queen (2006) 67 NSWLR 659 at [33]
No exploitation public rumour or innuendo to compensate for inadequate evidence of motive
Obligation limited to pressing Crown case “to its legitimate strength” by reliance upon credible evidence
Careful use of rhetoric, Libke v R (2007) 230 CLR 559 at 600
Inappropriate to ask questions of the jury contrary to the presumption of innocence or to give impression onus on the accused, Wood v R [2012] NSWCA 21 at [604]-[605]; Lane v R [2013] NSWCCA 317 at [122]-[123]
No submission on material not in evidence No comments that belittle or ridicule defence
case and no impugning credit Crown witness not given opportunity to respond
“The object of an opening is to give the jury a general notion of what will be given in evidence. Counsel in opening states the facts of the case, the substance of the evidence, he (she) has to adduce, and its effect in proving his (her) case and remarks upon any points of law involved in the case”: Valeriani v Gibson (1963) NSWR 1430 at 1435 ( Halsbury’s 3rd); Bar Rules 21, 35, 37
“Judicial obligation to afford a party a reasonable opportunity to present or meet a case is thus vital to both the reality and the appearance of justice”: Ucar v Nylex Industrial Products Pty Ltd [2007] 17 VR 492 at 512
“While much emphasis can be placed upon the right of a party to open their case, the circumstances of a self-represented litigant who is to rely almost entirely upon their own evidence brings into play a number of difficult considerations for a trial judge. The right of that litigant to introduce the nature of their case, including the substance of the evidence that they intend to adduce, can so easily become blurred with giving that evidence from the Bar Table.”
“The trial judge is not required to remain an impassive listener, regardless of the length and content of an opening. When the trial judge discerns that the purpose of the opening is being abused, is misunderstood or is unhelpful to the party or the judge, he or she is required to intervene”: McWhinney v Melbourne Health [2011] VSCA 22 at [32]
Prepare your own summary as to the essence of the art of advocacy.
Revise and update your own summary. Observe and learn from both the skilled,
the unskilled and the understated. Be insatiable in your appetite for the truths
of advocacy.
Supremacy of rule of law Constitutional balance and Parliamentary powers Justiciable controversy – jurisdiction of Court Duties as officer of Court – administration of
justice – servant of the rule of law Ethical obligations and Bar rules Statutory duties – cost estimates, fee
agreements, reasonably arguable Statutory matrix – just, quick, cheap –
resolution/end Scope of retainer, alternative resolution, need for
and compliance with proper instructions Duties owed by client