‘A Barrister’s Rhetorical Flourishes Can Be Seductive, But Eventually They Become An Irritating Distraction’

Ed note: This is the latest post in the 'If I knew then what I know now' series, where leading members of the legal profession share their wisdom with the next generation of wannabes.

I only learned the most significant lesson about being an advocate after years in practice, paying close attention to what worked and what did not. It is something that no one is likely to teach you when you are studying to become a lawyer. In fact, I was taught the opposite, writes Matthew Ryder QC...

What I wish I knew then, that I know now, is this: the most effective advocacy is invisible.

Some things about good advocacy are uncontroversial. For example, everyone will say that you must master your brief, work hard and try to be both fair and fearless. But some advocates are said to possess very special qualities that mark them out from the rest – you see them in films and you read about them in novels...

The great ones, we are led to believe, can mesmerise a court with the rich beauty of their language. They make submissions to judges, and speeches to juries, that overflow with passion and emotion. They compel the listener to accept the righteousness of their cause. Above all they can rely on charm and turn of phrase to persuade the court, without worrying that their client's position is not really borne out by the evidence or the law.

But contrary to that image of the mythical trial lawyer, my years at the Bar have taught me something different. Those qualities are not what makes outstanding or even effective advocacy.

Of course, someone with those attributes is entertaining. And an entertaining advocate is far better than a boring one. But while ostentatiously delivered rhetorical flourishes can be seductive, eventually they become an irritating distraction. What judges and juries want from an advocate is not showmanship but help. What is the right answer? And which of these lawyers is going to help us get there?

Judges and juries rarely reach their decision by feeling that clever advocacy persuaded them. This is because, if they are approaching their task as they should, they will consciously put the advocate and his or her rhetoric to one side; and they will work hard to focus on the evidence and the law.

An effective advocate realises this. Rather than leaving the judge or the jury to separate out the entertaining delivery from the genuinely important points, the best advocates do that task themselves. Their advocacy becomes invisible, and in delivering it they almost disappear. Instead, the critical issues that the advocate wants the court to focus on take centre stage.

With judges this point is critical. Most have spent much of their professional lives as the cleverest person in the room. Few would ever accept that they would reach a decision merely because of advocacy; in their minds, it is the law and the evidence that takes them to the right result. Judges value advocacy that helps them easily reach their own decision.

Although many advocates understand this point, they often take a different view about juries. The patronising view that many barristers have is that juries can be duped and confused into thinking night is day, and black is white, if the advocacy is smooth enough. I disagree.

Modern jurors realise that the adversarial process can descend into theatre. They take that into account and they guard against it. When it is time to make their decision they will separate out their admiration for an entertaining show, or their enjoyment of courtroom theatrics, from the real business of giving ‘a true verdict according to the evidence’. Ultimately, it is not the personality or style of the advocate that a jury will focus on. In fact, they will be deliberately trying to look past those things.

Of course, old orthodoxies die hard. Some barristers will even say that the showmanship is important, if for no other reason than it is ‘what the client wants’. But this response is really the final, desperate gasp of the advocate’s ego. Clients want you to win their cases and they rely on the advocate to explain to them what will be most effective in doing so. If they wrongly think that putting on a dramatic show is likely to do that, then it is also the advocate’s job to disabuse them of this notion.

What I have learned in practice is that the most effective advocacy is helpful, clear, brief, thorough, reliable, principled and compelling. Everything else is a distraction.

Matthew Ryder QC is a barrister at Matrix Chambers. He specialises in complex crime and civil law, including judicial review, police law and claims under the Human Rights Act.

2 Responses to “‘A Barrister’s Rhetorical Flourishes Can Be Seductive, But Eventually They Become An Irritating Distraction’”

  1. Simon Myerson

    Advocacy has to be in tune with prevailing attitudes. When oratory was respected for its own sake, FE Smith and Marshall Hall were orators. Nowadays, they would be considered overblown. If an advocate persists in giving a performance, people will be bored - even Wagner only last 8 hours or so and that plays to a minority. A substantial trial can last hundreds of hours and a shoplifting (which won't) is hardly the occasion for grand gestures.

    Having said which, variation of tone and approach can assist hugely. If the advocate treats genuine police malpractice, or a defendant's undoubtedly callous approach, in the same way as the forensic evidence then a point is being missed. Equally, whilst anybody would resist the suggestion that they made a bad decision because of the way the argument was advanced, people are more likely to accept an argument when they can clearly follow what was said and enjoyed the presentation. I was taught Conflict of Laws by two people, both of whom were undoubtedly brilliant. I learned the most, by far, from the one who made us laugh. What's more, because I liked him, I tended to agree with him rather than the other lecturer.

    As with almost everything else about advocacy, this is a matter of judgement. There are two things that must be avoided. First, ersatz emotion and pointless outrage. Approaching a particular point in a way which genuinely - and understatedly - chimes with how a jury feel (unless you are so far up yourself that you are out of sight, a jury is 12 people like you), or dealing with a complicated issue in a way which involves a Judge on more than an intellectual level can be helpful, in my view. Working yourself up to a grand denouement is not. Secondly, not being yourself. You simply have to do what works for you. We have all met brilliantly funny people - I was once led by a man who got laughs out of the jury from the first witness in a particularly brutal murder (and an acquittal) - but if you aren't like that then don't keep making cracks. Similarly, if you aren't sure that you are reading the jury right, don't go for an approach based on their purported reactions to the case.

    But, in my view, it is fine to try. All good advocates improve as they go on. That, if you think about it, means trial and error. Providing you are not so committed to your chosen approach that you cannot retreat when it falls flat on its backside then give it a bit of a go and see how it works. If it doesn't work, leave it. If it does, see how much of it works. That is why evidence and procedure and so important at University - if you aren't thoroughly comfortable with them, they will be all you think about. If you really know them, you can concentrate on other things.

    And if you have good judgement (and you need it to succeed at the Bar), you will be able to develop a style of advocacy that reflects your own beliefs and concerns, and which echoes the concerns of those you must persuade. It needn't be showy, but nor need it be mechanical. I don't think I am necessarily disagreeing with Matthew Ryder about that, although I would put the emphasis less on invisibility and more on engagement.

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