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.