‘To be a good advocate you need courage above all’
As a junior barrister Herbert Smith Freehills’ Tom Leech QC — who’ll be speaking at the Legal Cheek careers Q&A at Inner Temple on Sunday — could never sleep before a hearing. But he kept going…
Experience is everything in advocacy.
The more practice you get, the more you understand what you are doing. Arguing a winning case with a sense of proportion; arguing a losing case with a sense of dignity; seeing what works with a particular tribunal; seeing what doesn’t work with the same tribunal; understanding the time to relieve the pressure by a joke — in my case usually a bad joke; understanding when to be completely serious; understanding when to persevere; and understanding when to stop and sit down.
What are the most important things that I have learnt as an advocate over 25 years in practice?
We all get nervous
When I first started in practice, I used to get really bad nerves before appearing in court. I could never sleep before a hearing. I still get nervous before I go to court. But the trick is to know that everyone else is the same. My two mentors at the bar were two very senior and experienced silks (one of whom is now a member of the Court of Appeal). Both were incredibly gifted advocates. But both suffered from nerves in the same way I do. But as soon as the usher calls “silence” those nerves disappear. The adrenalin rushes and you are away. If the day goes well, there is nothing quite like it. I like to get to court early and sit for 10 minutes before the tribunal sits just to anticipate that feeling of asking the first question or making your first point.
The more you do, the better you get
I was very lucky. I did pupillage and was taken on at 9 Old Square in Lincoln’s Inn (which later merged to become part of Maitland Chambers). My chambers was a property and landlord and tenant set. Sir Robert Megarry had been our head of chambers. When I joined, there was lots of small County Court work, usually possession actions which took a day to try in the County Court. One day you would be acting for a landlord, the next for a tenant or debtor. You would have to turn up and argue a case and cross-examine witnesses having seen the papers the night before. This kind of work doesn’t exist anymore.
But in the Advocacy Unit at Herbert Smith Freehills (HSF) we place great importance upon junior advocates getting this kind of day to day advocacy experience. Going to a case management conference in front of a Master, arguing costs or defending a specific disclosure application are great learning experiences. We also put great store by pro bono work. A few weeks ago one of our junior associates argued a consumer credit case in the Uxbridge County Court and all of our junior associates participate in a volunteer scheme for immigration appeals.
Every client is equally important
If you become an advocate, you will be doing a very, very important thing. You will be speaking for someone else. You may be speaking for a large and sophisticated corporation with an in-house legal department in a massive case in the Commercial Court or you may be speaking for a private individual in an immigration appeal tribunal who may have very limited understanding of the issues and very little English. At HSF we take the same attitude to every client. The greatest pleasure is to win a case for someone who truly cannot speak for themselves.
The famous barrister Jeremy Hutchinson appeared in most of the famous trials of the 20th century. He acted for Christine Keeler in the Profumo case and Penguin books in the Chatterley trial. He also acted for the spy George Blake and for the National Theatre in the Romans in Britain trial. In his recent book, the Case Histories of Jeremy Hutchinson, my old friend Tom Grant records that the cases which his subject took most pleasure from were “for the unknown and the underprivileged, cases of little interest other than to their protagonists, the kind of cases that make up the daily meat and drink of the criminal bar”.
The preparation which you do for a case in your own room or with the team is as important — often more important — than performance in the courtroom. The better you know the papers the more chance you will be able to deal with the unexpected answer or a new point. Sir Patrick Hastings once said of his first brief that he did everything to it but set it to music. But it is just as important to do your case analysis rigorously and to decide what to say and what not to say.
I did a number of big cases for Herbert Smith, the firm in which I am a partner now, with Charles Aldous QC, my old head of chambers. He always taught me that if you write down 10 questions to ask a witness, expect to cross out 9 of them because only one in 10 questions is usually worth asking. When I moved to HSF from Maitland one of the great benefits of the move was that I was able to discuss the case at any time of day or night with the team. For me, the preparation for court hearings is both a challenging exercise and also a real team effort and at HSF we welcome junior members being fully engaged and participating in that effort.
But be prepared to say nothing
Another great virtue of the advocate is economy. I always find that the stronger my case is, the shorter my skeleton argument and my oral submissions. I was once led by Nicholas Patten QC (now Lord Justice Patten) against Jonathan Sumption QC (now Lord Sumption) in the House of Lords in Target v. Redferns, a leading case on the law of trusts. Jonathan Sumption had a piece of paper with five points on it. He made those five points in about 15 minutes and sat down. He won the appeal.
I do a lot of advocacy training both internally at HSF and for Lincoln’s Inn. I always tell students what my first pupil master, Oliver Albery, said to me: “better is the enemy of best”. What he meant by this was that if you feel the need to keep going to add another point or to repeat yourself, you are probably doing more harm than good. If you can keep it short, so much the better.
I will give you an example. I was acting for one of two defendants before Mr Justice David Richards in a case called 4ENG v Harper which is a leading case on damages for fraud. I finished cross-examining a critical witness at about 12.30pm when he gave me an answer which destroyed the claimant’s case on causation. However, counsel for my co-defendant thought that he could do better and continued to cross-examine him until lunchtime. This gave the claimant’s counsel, Clive Freedman QC, the opportunity to prepare to re-examine him over lunch and then produced one of the finest re-examinations I have seen. We might have won if my co-defendant had left well alone!
We are all advocates
Advocacy is the art of persuasion and every day we all use the art or skill persuasion in almost every context. We construct arguments; we use standard rhetorical devices with which Aristotle would have been familiar: pathos, paradigm examples or deprecation. If you come to HSF, my partner, Ian Gatt QC, the Head of the Advocacy Unit, gives a brilliant presentation about the way people use advocacy in everyday life. The lesson for the professional advocate is that you will be all the more persuasive if you reason and speak in a way which any sensible and reasonably intelligent lay person would understand. You do not need to be educated at a particular school or come from a particular community to speak in a particular way to be an effective advocate.
Value courage above all
The word “fearless” is often used of great advocates like Sir Sydney Kentridge or Clarence Darrow and it is true. The greatest quality of the advocate is courage and you will need it surprisingly often. It will take courage to stand up to judges or tribunals who think that you are wasting their time. Remember good judges are open-minded and want to understand your case even if they are ultimately against you and bad judges appreciate this once they are reminded.
You will also need courage to stand up to clients who try to twist your arm. Remember again that you are doing your client a true service if you give them unwelcome advice and not doing them a service at all if you simply tell them what they want to hear. You will also need courage to stand up to tricky or bullying opponents. Good advocates have courage and never allow their integrity to be challenged by the tribunal, their clients or their opponents. I hope that you will not be surprised to learn that we prize courage and integrity above all else at HSF.
Tom Leech QC is a partner in the Advocacy Unit at Herbert Smith Freehills. He will be speaking at the Legal Cheek alternative careers session at Inner Temple’s undergraduate careers day on Sunday. There are a final few free places available here.
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