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‘There are plenty of weak advocates at the bar who were never properly trained’

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Advocacy is as much a taught skill as a natural gift, argues 9 Bedford Row barrister and BPP Law School BPTC joint director James Welsh, who’ll be speaking at Legal Cheek Careers at Gray’s Inn on Tuesday

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When I started out as an advocate I really didn’t know anything.

I came through the system in the old days when ability in advocacy was thought to be a spiritual gift that began with an aptitude which was genetically implanted into some people, which was then realised into actual talent through cultural osmosis (i.e. if you were “the right sort of person” you’d be a great advocate by hanging around in court and chambers for a while).

The learning curve for me was bumpy — as it was for most of my peers. My goodness, looking back on it I was rather hit and miss as I experimented my way through early hearings. I remember hearing a senior advocate say that he’d heard a “pot pourri” of submissions from his opponent. I thought that this was a rather excellent expression and I tried it out in Stratford Magistrates Court one day and sounded a complete fool.

By luck I seemed to have successes too. But the process was very Darwinian. We would repeat and do again that which led to our courtroom survival, and avoided saying things that had previously led to moments of embarrassment or agony. I suspect that very few of us tried to develop conscious strategies for good advocacy, we just let our brains steer us based on prior successes and failures. Some of us got better by this process, and some of us didn’t. Let’s be honest. There are plenty of weak advocates at the bar who were never properly trained, and where the experimental process of learning advocacy didn’t lead to much improvement.

It was pretty extraordinary when, six years later, I had the chance to effectively design the entire advocacy programme for a major provider of training for the bar. I confess that I had to dig very deep and ask “what do I actually do in court that’s effective?”, and start the process of systemising a collection of refined instincts and create a methodology that could be communicated effectively to others. It was fantastically interesting to be involved in the creation of the education of advocacy.

What is the essence of what I’ve learned? Well, there are always two elements to what you do as an advocate: the technical element and the performance element. Technically, the most important thing is structure. Persuasion is a product of logic, and logic is based in structure. Good structure is the foundation for all advocacy.

The analogy that I come back to repeatedly with students is the analogy of driving a car. When you approach a roundabout, there are a series of structured actions you need to take in sequence. When you start implementing the sequence as a learner, your actions are self-conscious and sometimes you misstep. If you aren’t properly instructed, you learn to drive but not technically very well.

As you get more practised and learn the right set of sequences, you sequence much more instinctively and the process moves from being clumsy and self-conscious to natural. Then you can stop worrying so much about the technical side of driving and start to be more expressive as a driver. So to with the advocate, who can start to be more individual and expressive once the fundamentals of how to construct logical arguments have become something like automated functions.

The bar was very slow to realise that good advocacy can be taught, and good advocates can, in part, be created. Having made a mistake once, we need to be modest and understand that even barristers can make mistakes, and thereby try and avoid making too many more. I worry that there are two issues of mistaken thinking (in relation to creating advocates) that are worryingly prevalent at the bar at the moment.

The first point is that many at the bar seem stuck in the thinking that a good advocate will necessarily be a good trainer of advocacy. It is frustrating to come across this thinking so systemically, when there is such clear evidence from every area of training and coaching that we encounter in life that the best practitioners and the best trainers are not necessarily the same people. A coach must have a degree of competence for the skills being coached for sure, but there’s just no guarantee that a good practitioner will make a good trainer. The danger to the profession of advocacy is that the best trainers are often not being identified.

The innate deference to hierarchy is tempting the profession too readily to put training the hands of those with the strongest practice credentials. I’ve seen some very strong advocates make very weak trainers. There’s a reluctance to acknowledge this. One can understand the reluctance for senior practitioners to acknowledge that a more junior practitioner might actually better than them at training. The most extreme example of this is when a practitioner takes up employment as a trainer. Once you leave full time practice, in the eyes of some you really cease to exist as a lawyer or a trainer. I’m afraid that there’s still quite a lot of unhelpful snobbery about.

The second issue is that the Inns have seized upon a particular method of advocacy training, which has been adopted with such vehemence and zeal in some quarters that it is stifling the development of the art of advocacy training. I’ve trained thousands of advocates now, and the process by which you create a good advocate can be as nuanced and varied as the characters who submit themselves for that training.

James Welsh will be speaking at ‘Where will the next generation of advocates come from and how will they train?’ at Gray’s Inn on Tuesday evening. The last few tickets can be reserved here.

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