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Annual Lecture 2012: The Art of Advocacy by The Right Honourable The Lord Igor Judge, Lord Chief Justice of England and Wales

Speaker: The Right Honourable The Lord Igor Judge, Lord Chief Justice of England and Wales
Date:
2012-11-05T00:00:00+08:00

Honourable Chief Justice, Honourable Chairman of the Annual Lecture Organising Committee, Honourable Colleagues. Ladies and Gentlemen.

 

Even the House of Lords in a bad mood is better than 500 of you here. I am grateful for the honour that has been done to me in inviting me to deliver this Annual Lecture. My wife Judith and I are privileged to be here and, if I may say so, we have already been shown huge kindness and much traditional courtesy.

 

Coming here, to a country which by its history and by its geography is one of the world’s great hubs of air and sea routes – small in size but vast in achievement and aspiration – reminds me of my own place of birth in a tiny island which has for centuries been a hub and the heart of Western European civilisation, but where classical Arabic is the native tongue – the island of Malta.

 

My mother is Maltese. I was born there during the war in the middle of a bombing raid. As she pointed out to us not so long ago, because happily she is still with us, if the bomb had come 15 yards closer, we all would have been dead, and we would.

 

Once Malta, like Singapore, was part of the British Empire. Now like Singapore, it is an independent and proud Republic. And there is an astonishing symmetry about this. I saw your flag. And the flag of Malta is also red and white with a little embellishment in the corner; only the Malta flag is that way around rather than this way around. But isn’t it extraordinary that I come all this way and there is this link. Now both those communities – both your community and the community of Malta and for that matter, the community in Britain, are fortunate - the Rule of Law prevails.

 

Do you mind, I am just going to repeat those words because they can be far too easily taken for granted. In all these three communities, the Rule of Law prevails. Let us pause and be grateful.

 

For today’s purposes I shall identify one irreducible aspect of the Rule of Law, and that is this: an independent legal profession appearing as advocates before independent judges in a relationship which is marked by mutual respect. That is my thesis.

 

Advocacy is not a matter of nationality. Every community throughout history has found its great advocates. You all remember, ancient Greece, Demosthenes teaching himself to be an advocate by going down to the seashore and speaking with pebbles in his mouth above the sound of waves so as to make sure that his voice could be heard in the assemblies in Athens where thousands of people would meet.  He appreciated that the advocate’s voice was a weapon which was absolutely useless if it could not be heard.

 

But quite why I was asked to speak about advocacy baffles me. I once went to the House of Lords; I am going to use words which no advocate should ever use but I did to myself then, and I say again, I went to the House of Lords with a cast iron winner on a point of statutory construction that I could not lose. My opponent stood up (he was the appellant) and within one minute certainly no more, one of the learned Law Lords leant back in his chair, opened his arms wide, yawns slightly [and said], "When I was on the Law Commission, what we meant this statute to provide was …" and he went on with a meaning which was the precise opposite of what the statute said. In this way, I lost a certain winner and I lost it 5-nil. Within 2 years, the House of Lords, some of them the same members that had thrown me down 5-nil, said that the decision was to be confined to its very narrow and particular facts. In other words, they have been talking rubbish two years earlier. But on that occasion I was not the advocate. So what it comes to ladies and gentlemen is the person addressing you today lost a certain winner which 2 years later the House of Lords said he should have won. What sort of advocate is that? So I went and became a judge. And having established my absence of credentials, I think I better go home now. So I will. Cheerio!

 

Well, I have decided to stay. You have been kind to us; better give the lecture. Just a word or two about context though. Wherever I use the word His" or "her", I always include "she" or "he", "court", where I use it, includes arbitration or tribunal. Although there are 5 separate headings to this lecture, I am dealing with them compendiously.

 

So let me come back to my basic thesis. Great damage to the administration can be done when there is an absence of mutual respect between the judge and each of the advocates. Of course we all know, you all know some advocates are better than others. You can’t say but I can; but we also all know that some judges are better than others. That’s the reality of life. We also know, do we not, that there are sometimes personality clashes between advocates just as there are on occasions, personality clashes between a judge and an advocate. Of course all this is true; we are dealing with human beings. But the essential feature that I am driving is this: there must be what I shall describe as institutional respect. Justice is better served when there is a degree of professional harmony between the legal profession and the judicial office holders.

 

Lord Bingham of Cornhill, one of my predecessors, went rather further than I would go, quoting an observation of the philosopher Pierrot Calmandrei that,

 

“The judicial process will have approached perfection when the discussion between judge and lawyer is as free and natural as that between persons, mutually respecting each other, who try to explain their points of view for the common good. Such an arrangement would be a loss for forensic oratory but a gain for justice”.

 

Now you don’t very often disagree with Lord Bingham; certainly I don’t. But I respectfully disagree that there can be a discussion of the kind envisaged in this quotation. There are, of course, formalities within the processes of law which are essential to the orderly discharge of business. More important, whether in a criminal or a civil case, the advocate is acting for a client. The judge is having to listen to rival cases and make up his mind between them. The role of the advocate is dual. The advocate has obligations to the court but it is the undoubted responsibility, as your Chief Justice just indicated, of every advocate to advance the case of the client, however unpopular it may be, in its best light and to the best of the advocate’s ability. The judicial objective is different. It is a process involving high quality advocacy on both sides of the case, where the prosecution and defence, plaintiff and defendant, which produces the answer required by truth and by law.

 

So the crucial words in the quotation are mutual respect. That is an expectation which the judge is entitled to have from every advocate and every advocate is entitled to receive from the judge, an expectation based on the clear understanding of each other's different responsibilities in the administration of justice, but not too cosy, not too cosy, not as cosy as Pierrot Calmandrei implied.

 

Perhaps in the end, he overlooked that litigation is not a symposium between distinguished commentators in a great academic institution, but it is a legal process which, so far as the parties involved are concerned, will involve answers which provide life-changing consequences, such as deprivation of liberty and punishment, financial disaster, the removal of children from one or other parent.

 

And as judges in this overall context, we have to remember the simultaneous duties of the advocate – to the court and to the client – can create very difficult problems of professional judgement, and that in any event, there is a principle of legal professional privilege which means this: the judge cannot know the whole story or the particular pressures under which the advocate is working. Before we seek to criticise the advocate, we need to remind ourselves not only of the problems which we can see for ourselves but also more importantly, that we probably do not have the fullest idea of all the problems the advocate is currently facing. As for the advocates, there has to be the advocates perhaps on occasions, might I possibly suggest with the greatest possible respect, that perhaps the advocates fail to appreciate that the answer to many cases is neither as straight forward nor as simple as the advocate on one side or the other thinks that it really must be. Perhaps, all the advocates here will respect the problem identified by King James VI; that’s a lecture in itself. But at the early part of reign at the start of the seventeenth century, he decided that he should exercise a judicial function; afterall the king is the fountain of justice so he would sit as a judge. He discovered what every judge in every jurisdiction very rapidly recognises. I quote:

 

“I could get on very well hearing one side only, but when both sides have been heard, by my soul, I know not which is right”.

 

Perhaps I can sum it up in this way: when I was in practice at the Bar, the worst sort of judge was the sort of judge who knew all the answers. When I became a judge, I discovered that the worst sort of advocate was the one who thought I was completely stupid and thick. Both tended to bully rather than persuade. And if nothing else, advocacy is the art of persuasion. Notice it is an art, not a science. If there is one message I can give, and I do give it time and time again, it is that advocacy is a most personal, individual skill, with different forensic techniques, which have to marry up with and be consistent with the character and personality of the man or woman advancing the case. Let me give an example. If you need a major operation say, to your leg, there will be large number of surgeons specialising in the field, available to help and advise you. Each will have his or her own bedside manner. Each will help you before the operation with their bedside manner – hopefully will help you with their bedside manner; most surgeons I have had to deal with have terrified me in advance but let’s let that part pass – and then after the operation, assist you in its aftermath. The bedside manner is a reflection of their personalities and characters. But that is not the operation. The actual process, and of course I am simplifying, of cutting into your leg [and] into the body and working away at the complex structures found there proceeds in a way which, allowing for the minutest variation in technique, is more or less identical. And it all takes place in private in an operating theatre.

 

Please don’t misunderstand me. I am not of course referring to pioneering operations; to operations which go just that little further than ever before because medical science has advanced. That is a different matter. Nor am I decrying the care, skill and professionalism involved. But the operation itself is not personal in the sense that the personality and character of the surgeon has a direct impact on the processes.

 

Now let us take advocacy. Identify any difficult criminal trial. You can find ten good quality advocates to defend the case or to prosecute it. Each of them if they are any good, will study the papers, think about the case, reflect on how to approach it, and come to court and present the case as each of them judges best. And this is true whether the case is criminal, civil, family, planning, tribunal, first instance, arbitration, appeal court, or any of the myriad of tribunals in front of which advocates may appear. There are many good advocates. But they do their cases differently.

 

To begin with, the advocate has to be comfortable with his own way of doing things, with his own personality, with his own style and attitude to the case, his way of dealing with the judge and the witnesses - all reflective of his personality and character. And he is carrying out his responsibilities in public; indeed just about everything an advocate does is done publicly. His client is not under anaesthetic. He is there, observing it all for himself. So are all his colleagues, and believe me, colleagues spot your professional forensic blunders as soon as soon as you make it. I always used to hear a titter when I made mine; that was my learned friend making the most of it at my expense. I never tittered in reply of course; you understand. I was a gentleman.

 

So the profession of advocates is working in public, in a constantly changing and fluid forensic situation, over which, no matter how much preparation the advocate has made, he has no complete control, and indeed in  which if he is over prepared, he may stick too long to the script, clutching it like a child with a cuddly comforting toy. The best advocates respect and understand the imperative of the moment, they are alert to its needs, they are flexible to the changing momentum in a case. Sometimes these changes are very subtle, apparently tiny, tiny movements in the atmosphere. But you never do know quite what answer will be given, or the way in which a piece of evidence which you anticipate will emerge. And you have to be ready for it. You, you – that is the advocate – have to be ready for it. Fully prepared, but not over prepared. Anticipating the improbable, but unable to predict what form the improbability will actually take but flexible enough to cope with it whatever form it may take. This is why it is about you, about the individual, the human being who is wearing the robes of the advocates’ profession.

 

These are the sort of reasons why I describe advocacy as an art. The truth is that persuasion is an art. And I want to give you examples of persuasiveness that have absolutely nothing whatever to do with the court process but illustrate it. And I have used these examples before. I make no apology for doing so. I am going back to some research into D-Day in 1944. I know you have your disaster history of the 1939-45 war. So have we. So this history may not be as vivid for you as it is for us in Europe, but in summary, Nazi Germany had overcome the entire continent of Europe, and to relieve Europe of the thrall of Nazism, an invasion of Europe was planned. It succeeded, but my goodness, it was a most remarkable success, and the opportunity for failure was enormous. But huge numbers of men were gathered together to sail across the Channel to die in order to save Europe. And here are the words of three different commanders to the men under their command. All of them of course united in fear and apprehension of what lay ahead, and all knowing that there were going to be many casualties.

 

The first commander, “Look to the left of you, look to the right of you, there is only going to be one of you left after the first week in Normandy.”

The second, “What you are going through for the next few days, you won’t change for a million dollars, but you won’t want to go through it very often. For most of you, this is going to be the first time you are going into combat. Remember that you are going in to kill, or you will be killed.”

 

The third pulled out a large commando knife, flourished it above his head and shouted, “Before I see the dawn of another day, I am going to stick this knife into the heart of the meanest, dirtiest, filthiest Nazi in Europe.”

 

Let’s pause. I am talking about persuasiveness. The first commander was factually correct. The casualties were going to be and they were in fact horrific. The second tried to suggest, by way of inspiration, that they were all going into something of an adventure, a one-off lifetime adventure. The third was utterly unrealistic because he knew, and the men he was addressing also knew, that the meanest, filthiest Nazi of all, and all his close allies were nowhere near the coast of France, let alone the coast of Normandy but bunkered down in Berlin.

 

Now relate this to the trial system. For a judge sitting on his own, perhaps the second of these efforts could have represented the most persuasive advocacy. For a trial by jury – still our system although I know perfectly well not yours – perhaps the third. And for a court of appeal of three judges, perhaps the first was best. Each tribunal demands different advocacy techniques.

 

And returning to the quotations, the significant feature is that the words chosen by the three commanders were addressed to groups of men who were in identical positions of fear and apprehension, and the commanders themselves when all is said and done, they too were young men. They were crossing the Channel with their men, their risks were identical to their men and no doubt equally apprehensive and frightened. So what each of them said was a reflection of his own personality, of how he felt able to inspire them at a moment of profound responsibility, at a time when he was in deep apprehension. In other words, they used words that their personalities led them to use.


Ladies and gentlemen, the advocate cannot be anything other than his own man or his own woman. He cannot be somebody else. He cannot be trained to be an advocate to advocate in a way which is not a reflection of his or her own personality.

 

We are, as I emphasise, talking about persuasiveness, persuading the tribunal. The point of construction of tax law or a charter party, quite different from a criminal trial arising from a homicide which may or may not have occurred in unreasonable or excessive self defence. Of course, before any tribunal, there is nothing like standing still most of the time, keeping your hands out of your pockets always, not waving your hands about like a conductor who has got the Valkyrie to conduct when Wagner is really blasting away on the trumpet. That is no good. The judge is looking at your hands and wondering when they are going to fall off. Looking at the court, if possible engaging the eye of the judge, speaking clearly, modulating your voice;– remember your voice – your crucial weapon, modulating the speed at which you speak. Occasionally, when you are losing the court’s attention, just dropping your voice; not shouting.

 

And then as some of you are doing now, you lean forward to hear what on earth is coming next. Unless you have bored the court into somnolence, the judge will lean forward to try and pick up what you are saying, then you return to speak more loudly. If, of course, you bored the judge into narcolepsy, I’m afraid you’re not going to be very good because you should have spotted that at an earlier stage. Silence – silence has its important moments. The pause can highlight that moment, and can add great emphasis; much greater than the shouted word.

 

May I respectfully suggest to you, particularly to the young among you, don't forget to listen. Listen for the hesitation in the evidence of the witness, listen for the issue that seems to be interesting judges in the court of appeal and your opponent seems to be having some difficulty with. Listen to what your client is telling you. I found when I had clients who suffered major personal injuries usually in car accidents in the days before you had a headrest, that spines were broken at the back of the neck. You wanted to hear what they were not telling you. You wanted to hear what the catastrophe had done to ruin their lives and which they weren’t prepared to talk about until they decided they could trust you. Listen, listen. Don’t bury your head in your papers. If you do, you will miss these important moments. And I repeat, don’t forget the pause. If you got a good but slightly complex legal point, let it sink into the judge’s mind. Give his mind time to work, to mull over, to chew over the complex point you’re making.  And if you are cross-examining a difficult witness who you have reason to believe and your instructions tell you, is not telling the whole truth, a pause by you will often lead the witness to want to fill the silent gap, and in doing so, he may give something away that he might rather have kept hidden.

 

One of the great advocates of my early days was an Irishman called James Comyn. He was appearing before Lord Denning, famous in England and I suspect throughout the world for his concern of the man we describe as the ‘little man’. Comyn was appearing in front of Denning in the Court of Appeal on an absolutely hopeless appeal for a tenant against the landlord, and he began knowing that there was very little law on his side, if any. These were his few opening words,:

 

“In this case, I appear for an 87 year old widow, whose husband was killed in the last war, and she’d lived in this house where he left her to go and fight for his country, ever since”.

 

“Come, come, Mr Comyn”, said Denning, “This is a court of law not a court of sympathy”.

 

And there was then a long pause. Comyn did not break into it. He let it linger and linger, waiting for the moment. And then Denning filled the gap.

 

“How old did you say this poor old widow was?”

 

That was fabulous advocacy – not rushed, nor forced – just fabulous advocacy.

 

In this pantheon of advocacy, I offer you two further stories. Just about every common law jurisdiction into which I have been claims this first one for its own, and for all I know, you here in Singapore may claim it for yourselves. If you do, I apologise but it always raises a laugh on these occasions. With the advocate for the appellant opening his case in this way, “My Lords, in this appeal, there are three points. One is arguable, the second is not arguable, the third is overwhelming”.

 

And the court responded in a calm, sensible, balanced way judges do, “Well, why don’t you tell us what your overwhelming point is?”

 

“Aha,” the advocate said, “That is for your Lordships to discover”.

 

Now it is a great story. I love it, I tell it at every opportunity. Now why? There are here a large number of advocates of distinction and promise as well as many judges. And we all titter because that is the story in which the advocate has undoubtedly outsmarted the court. But to what end? Was this best way to persuade the court to find for him and his client? The answer to that is no. So it is a good story and it was bad advocacy.

 

Let me now come to a different approach in our Court of Appeal Criminal Division. This is a story from England. It was told to me by the Lord Justice of Appeal who was presiding, in a very busy court on a very busy day when things had taken a long time, and the court was in a hurry to complete its list. And in truth it was rather a hopeless appeal against sentence. And a young counsel stood up, and within minutes –I am sure your judges don’t do this in Singapore but in England I am afraid we do – the court was intervening, interrupting, “Oh, what about so and so. Have you thought about this? Have you thought about that? Well, why not? Three bags full.” On and on they went at counsel, and suddenly, again the way it happens in England but of course not here in Singapore,  they all had to pause for breath. So they did. The counsel said quietly, but firmly, “My Lords, I know I am not going to get this aeroplane off the runway, but could you at least allow me to drive it out of the hanger?”

 

Sublime advocacy. It stopped the court in its tracks. It made the court listen. And the Lord Justice involved told me, “He was marvellous, he never did get his plane off the runway, because there was nothing in his case, but it was marvellous”. The court was put in its place, the advocate was serving the interests of his client. He behaved courteously, firmly,respectfully, and mutual respect the court recognised that he was right and they were wrong and from that moment on, treated him with the respect to which he was entitled.

 

One of problems of the modern world is that time has not expanded proportionately to the material being created in every aspect of our lives. I could go on about that but I won’t because there are still only 24 hours in a day, and 60 minutes in the hour. The legal system is affected in the same way as other parts of our society. Our trials – I am speaking now about England and Wales – are taking longer and longer, and the technique of advocacy has become much more diffused. Certainly in England, modern advocacy doesn’t seem to have much use for Rudyard Kipling’s six wonderful friends. I read long transcripts of questioning of witnesses which for a start very rarely contain a question and which virtually never reflect his advice, which I strongly commend to you all.

 

“I keep six honoured serving men, they taught me all I knew, their names are ‘what’ and ‘why’ and ‘when’, and ‘how’ and ‘where’ and ‘who’."

 

Virtually any question in any court can begin with those words, and for the purposes of cross examination perhaps the word “did” could be added to them and of course on occasions the “why” can become “why not”. “Did you so and so and so and so? Why?” Or depending on the answer, “Why not?” Much better than just charging in; ask the question beginning with those words.

 

We must be far more austere in our system and I suspect throughout the world in our use of time. There is a fairly simple principle, which I endeavour to encourage at home. And that is this: neither the advocates nor the parties to any form of litigation, whether criminal or civil, or family or whatever are entitled to take as much time as they like to develop their cases. Time is a resource. It is a finite resource. It is perhaps the most certainly finite of resources. Of course, both sides are entitled to a reasonable opportunity – a reasonable opportunity to deal with the case against them, to present and advance their own cases. But where a case takes longer than reasonably necessary, it presents a huge disadvantage to the litigants in terms of nervous energy and costs and it has a knock-on effect on all the other cases waiting to be heard.

 

Ultimately, it begins to undermine confidence in the administration of justice. I would like to think that throughout the common law world, we can persuade judges and advocates of this fundamental: That it is a confusion to regard the length of time taken by the case as any evidence whatever of the quality of the advocacy involved. I quite understand if a lawyer has to spend days and weeks and months preparing a case, he will think that the length of the trial should bear some proportionate length to the care and time and trouble he has already taken. But surely the point of preparation includes work designed to exclude what really doesn’t matter very much. If you got one authority from your Supreme Court which established the principle, why do you need 10 that make the same point in different language? I was, you say, too busy to write a short letter. The same with arguments.

 

Now one of the reasons why our cases take longer is of course the increasing length of our judgements. That’s not the responsibility of the advocate. I am speaking now for us in Britain, but again I don’t think the problem is confined to Britain. It may not apply here but there are certainly common law countries where it does. Judgements are not academic disquisitions. Nor are they are arguments of counsel. Judgements are identifying the legal principles which the court has applied after the advocate has identified the legal principle that he wishes the court to apply and if necessary, an existing principle has been modified or extended and if it has, precisely why and the basis for the modification or extension. The judgement is explaining to both sides who has won and lost and why. And just because the court has chosen not to deal expressly with the endless elaborations of argument, or indeed every submission advanced or every authority referred to by one side or another, it does not mean that the court has ignored them. If they are not referred to in the judgement, it is because the judge has decided that they have no bearing on the ultimate outcome. Don’t be offended if your lengthy argument produces a two paragraph judgement. It is not personal.

 

Much the same point indeed perhaps arises even more strongly with the written arguments, what in England we call the skeleton argument. Now let’s look at that as a form of advocacy. This is the written persuasion. The pen or nowadays the modern technology – a computer and modern technology in different forms being used to  produce something for the judge to see and read rather than the voice being used for the judge to hear. I am not sure I dare say this but I am going to. Whichever you do, the advocate needs to engage the brain. This is a remarkable change to the common law tradition which is founded on the orality.

 

But these written arguments have developed their own technique; there is much more flesh on the skeleton than there ever used to be. Obviously, when a judge reads a prepared written argument, he will be impressed. Let me tell you about me. I read the appellant’s written argument. By the time I turn the last page, I think, “Well, he’s going to win. Let’s go, that’s it.” Obvious, clear. But then I am a fair-minded judge and I think, “Well, I better read the other side’s case.” And I read the written argument for the respondent. And when I finish reading that, I think, “Wow, he’s got to win.” So it is advocacy like advocacy the art of preparing a written submission is more subtle than it looks. Mad though! The document should be prepared for the purposes of the court. It is the court that is being persuaded; the judge – to help the judge to find for your client. Sometimes I believe, I have said this in England and I have never had anybody challenged me. I sometimes believe in England that these arguments are written for the client, so that the client can think that the big fat fee he is paying for the advocate is fully justified. And so they go on and on and on. Because if you just write a skeleton argument saying the appellant should win because the judge has not applied the rule in Foss v. Harbottle,  he’ll wonder why he was paying you all those thousands of pounds. Sometimes in the cases of countries with divided professions, they are written to impress the solicitor who is instructing the advocate. The problem therefore can sometimes be a lack of focus. Please allow me to repeat myself. The objective is to persuade the court, not to impress anyone else. I am also going to enjoy saying this: Whether you like it or not, I am looking at the advocates in the hall, judges are just ordinary human beings. And you know something about ordinary human beings? They tend to listen more carefully and follow more closely the advocate who seems to them to have thought carefully about his submission and to advance submissions with real weight, rather than those which look as though they are grandstanding to somebody else.

 

The written submission has had some unexpected consequences. Some advocates who are masters of the written submission are not as good when it comes to oral presentation. An increasing habit we have and I do suggest to you [that] you don’t allow it to develop here is the habit of the advocate reading his submission. And this habit can lead to the destruction of the oral process. Your voice could command attention, it is your weapon but it can cause boredom. Your powerpoint presentation may reveal that you’re fantastically adept with modern technology but make sure it doesn’t diminish your advocacy.

 

Let me offer this to you.

 

“Do your Lordships have my skeleton argument? You do? I thank you so much. I am looking at paragraph, no…sorry, so sorry My Lord, paragraph 47. Erm, does Your Lordship have it [to the second judge]… No, paragraph 47. Right. ‘Fourscore and seven years ago, our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the propositions all men are created...’ Am I going too fast for your Lordships – oh I am going too slowly. I am so sorry, I’ll move on. ‘Now we are engaged in a great civil war, we’ve come to dedicate a proportion of that field to the final resting place for those who gave their lives …’

 

And so, one of the great speeches of history can be destroyed by an advocate reading his submission. Would any of you listen to any that? Would Abraham Lincoln have ever, ever been known of in that context if he delivered his speech in Gettysburg in that way? Of course not.

 

Too brilliant written arguments – the judge doesn’t know which side is right. What’s the advocate to do? One of them must be wrong. One of the arguments must be flawed. The advocate’s responsibility is to identify the flaw, to reveal the leap in a paralogic which slides over the difficulty in the argument. Now this ability in the advocate to deal with issues which trouble the court in the context of written submissions is much harder than it looks. It requires at least as much preparation as the written argument. And I want to offer one piece of advice which many advocates at home do not seem to have mastered. I suspect it’s something to do with training. Of course, you will think about how to advance your own case. [That is] elementary. Sometimes you get so enmeshed in this part of the process that you fail to think through where your own case is at its weakest and your opponent is at its strongest. Concentrate on those issues. Be ready with the answer at the hearing. When I was at the Bar, I ask myself this question before going into court. I regret that I wasn’t able to find an answer to this particular question when I went to the House of Lords and lost 5-nil. Because here’s the question: “If I were the judge in this case, what would I ask me?” It is a very salutary lesson. Your own case – brilliant, frills, whizbangs and all. What about the weakness in it? What’s the judge going to ask me to deal with? He knows all the good points.

 

The average advocate can deal with all the points in his own case and advance them. The best advocates have thought about and are ready to deal with and address the aspects of their opponent’s case at its strongest, and their own case where it is weak and problematic. This is integral if I am to say so, to the preparation and quality of preparation of every argument, written or oral.

 

In the end, however one dresses it up, the quality of the judicial process, we are, are we not, engaged in doing justice according to law. The quality of this process is heavily dependent on the quality of the advocates who appear before us in our courts. It really is as simple as that. The importance of the role of the advocate in contemporary systems is completely undiminished. It is not one jot less important now than it used to be. Techniques may have changed. modern technology, modern methods, the use of the powerpoint. The modern world with all the dramatic, revolutionary changes with which we are becoming familiar with, has not altered these principles. Indeed in some respects, the importance of the quality of the advocates has been enhanced, not least because the law has become so very much more complicated. But important as all this is, the basic techniques of persuasion, flexibility, of  alertness to the moment, and most of all, of the advocate being the advocate that his or her personality and character makes them, is unchanged. And 70 years later, any advocate will continue to recognise the reality of the observation of Mr Justice Jackson of the Supreme Court of the United States who said that when he was in practice as an advocate, he had three arguments ready for every court appearance. Now that sounds too good to be true until he goes on to say the three consisted of, “First, came the one that I planned – as I thought, logical, coherent, complete. Second, was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.”


I must come to an end but before I do, I hope that some of the more matured members of this audience would allow me briefly to address the younger members of the audience.

 

I was an advocate for 25 years. I absolutely loved that profession. The daily combination of responsibility and stimulation meant that some days of course were good; things went well. Some days things didn’t go so well and maybe you learnt a lesson and they didn’t. But I never remember a single dull day. I don’t remember driving off to court without feeling the adrenalin start to run. I made life-long friendships with those who were my opponents, competing for work with me. And however their capabilities varied – some were outstandingly wonderful and some were less good, with only one exception which I have never forgotten and I will take with me to my grave – every single one was a man or woman of personal integrity. Isn’t that a wonderful way to spend your life with such people around you, doing such work?

 

The advocacy profession had never been easy. But nothing that is easy has ever been worth very much. And you cannot succeed in anything unless you try and you put your whole heart and soul into it. Don’t, please if you want to be an advocate, don’t be put off by the difficulties. I am perfectly well aware of them and perfectly well aware of them at home. It has always been very difficult to get started. It is very difficult to maintain a practice; people are choosy.

 

But in the end, in life you have to live with yourself. Now imagine that you backed off something you really want to do, you have to live with yourself for the next 50 or so years. You have to live with, “I didn’t have the guts.” Imagine if you do your best and it doesn’t work out. “Well, I gave it my best shot.” And perhaps no less important for those of you for whom it works and whom the luck has shone and if you do succeed – there will be times when the luck has shone on you and not on somebody else who is competing with you for the same work – do remain humble. It is not all down to you. Luck is involved. And perhaps I better end by saying to all of you, good luck.

 

Thank you very much indeed.