Beyond preparation — advice on courtroom advocacy
We asked the coaches of our Advocacy Weekend what steps in preparation are overlooked. Here’s what they said.
At The Piddington Society we are fortunate enough to have some of Western Australia’s leading advocates and judges coach the participants.
Led by our Head of Advocacy, Senior State Prosecutor Adam Ebell, they give up their weekend to help develop the next generation of courtroom advocates. As the Hon Justice Katrina Banks-Smith told the cohort on Friday night, this is conducted in an inclusive non-judgmental environment.
Courtroom advocacy can be a stressful and high-pressure environment. The coaches agree that having space to learn the initial skills of advocacy in a no-pressure situation is the best way for people to grasp the fundamentals.
The first rules of advocacy are preparation.
So, we asked the 2021 coaches what is a key part of preparation that is often missed, and why is that important?
Here are their responses.
The Hon Justice Katrina Banks-Smith — Federal Court of Australia
In civil matters the parties often do not give enough thought to the relief they actually seek.
So much energy is invested in compiling the factual evidence and compiling authorities — but often the Court receives little assistance as to what orders are actually sought.
If you haven’t thought about that question as part of your preparation, you might overlook important evidence; for example, evidence relating to causation and loss.
So think about the end result. It is not just about winning or losing. Does the court have jurisdiction to make the orders you seek? How? Is there evidence you need to adduce relating to loss or damage? Do you need all the claims you are pursuing if relief overlaps? And what does the client really want anyway?
Her Honour Judge Mara Barone SC — District Court of Western Australia
Whilst it might sound silly, it is important to start with the beginning of the matter. Read and analyse the criminal charge or the writ and pleadings properly.
Too often people get caught up in considering the evidence and/or the materials without first identifying what actually needs to be proved.
Once you clearly know what needs to be proved, it provides a framework to considering how you or the other party will set about doing so.
His Honour Judge John Prior — District Court of Western Australia
Preparation for trials and hearings never ends.
The starting point is to be well prepared before any trial or hearing commences, but it is just as important to continually be prepared throughout the trial or hearing. Before each day of a trial or hearing and at the end of each day of a trial or hearing you need to review the situation as per what evidence has been led and what legal submissions have been made and then further prepare or amend your original case theory.
No trial or hearing is static. Your original preparation or case theory may need to be abandoned, amended substantially or tweaked.
Advocates who become welded onto their preparation done before a trial or hearing commences often undervalue the importance of listening to the evidence and listening to the submissions of opposing counsel as the trial or hearing proceeds.
Her Honour Judge Karen Shepherd — District Court of Western Australia
Preparation is a two stage process. Preparing how you are to run your case and what you are going to say is the first part. The second part is the preparation necessary to perform what you have prepared.
Many young advocates overlook the second but vital aspect of preparation — your own performance.
Once you have worked out what your case is and what you are going to say you need to spend time on practising that performance. There is no point having a detailed closing address or a series of questions written down on multiple sheets of paper if, when you stand up to execute your performance, they are just a sea of words.
So you need to practice your performance. Say the words out loud. Listen to how you are delivering your performance. Are your sentences too long? Are the words used too complex? Where are you going to use pauses?
An actor doesn’t just learn their lines; an actor having learned their lines rehearses how to deliver those lines.
If you are nervous or feel anxious about your performance, having for example the first three questions you are going to ask a witness memorised means you will be confident when you get to your feet that you know where you are going.
If you start well you will relax, regulate your breathing and the distracting voice inside your head ‘I look like an idiot’ will go away.
The same applies to your opening address and your closing address.
Practice performing it. Practice in front of the mirror, practice in the car on the way home, practice to your partner, practice on the dog.
The important thing is hearing yourself say the words out loud. Memorise the first few sentences of your opening or closing address. Start strong, give yourself confidence and know that you have prepared both the content and the delivery.
Her Honour Magistrate Genevieve Cleary — Magistrates Court of Western Australia
Read the brief/witness statements and pleadings COVER TO COVER, including WATCHING records of interviews and searches (not just reading transcripts) and CCTV, in their entirety.
It seems obvious, but the pressure of time sometimes hijacks our good intentions.
The devil is in the detail; the way accused and other witnesses act on screen can be great information about the type of witness they will be, or whether their behaviour can be used in the trial.
An overall command of the facts enables organisation of objections before the witness speaks, rather than being on the run, which lowers performance anxiety, and enables you to concentrate on the actual testimony of the witness.
You can also take meaningful instructions from the client, all at once, which lessens the risk of contravening Browne v Dunn principles, and you won’t be surprised by hurdles in your case theory.
Laura Christian SC — Consultant State Prosecutor, Office of the Director of Public Prosecutions
Two key related parts of preparation that are often missed are thinking about what evidence ought to be led from a witness statement and in what order.
The first is important because it forces counsel to think about admissibility. Doing that prepares counsel for responding to objections and helps identify when objections should be made during cross-examination.
Thinking and making decisions about the order in which to lead a witness’s evidence enables counsel to ensure it comes out in a coherent manner and to emphasis aspects that are important.
Henry Jackson SC — Barrister, Francis Burt Chambers
Prepare a chronology.
Do it for (almost) every single case. And include everything in it.
It’s amazing what you will see that you would otherwise have missed.
Paul Yovich SC — Barrister, Francis Burt Chambers
One of the most mundane, but valuable, pieces of preparation you can do is a
chronology, referencing all events and their dates (and, if appropriate, times) to the evidence supporting them.
I am not sure if it is “often missed”, but it might be a less obvious part of your preparation than preparing an opening, a cross-examination or a closing.
A chronology has many uses. Among those uses:
· It helps fix the sequence of events in your memory.
· It helps you organise what might be a large amount of information, and helps you find important evidence references when you need them.
· It may help you appreciate the significance of what might at first seem like a minor event or piece of information.
· It can help you identify conflicts in the evidence of witnesses.
· It might help you appreciate that a witness cannot be right about something, or that events cannot have happened (or must have happened) in a particular sequence.
It also helps you get into the habit of organising the information you have systematically, which is a good habit to get into.
Darren Renton — Barrister, John Toohey Chambers
The key to good preparation is testing your case from the perspective of your opponent as you construct it. How would you deal with the case theory or argument if presented against you?
Considering your case in this way can help identify weaknesses, refine your case to its strongest points and provide a basis to respond to your opponent’s case.
There is no point building something impressive if it rests on shaky foundations.
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