ADVOCATING
FOR CHANGE

Anyone who has ever ‘debated with’ a five‑year‑old seeking to stay up late has seen persuasive, fierce advocacy in action. That child knows what they want, how to best pitch their entreaties and the key points to muster. In a nutshell, they innately show all the core skills of a good advocate.

So what should we make of the advertisements we see for courses offering opportunities to “improve your advocacy skills” or “train as an advocate”? What are they really offering? And are we not selling ourselves short if we accept the implied suggestion that without specialist training you cannot be an effective advocate? I, for one, would beg to differ. After all, advocacy skills are part of our everyday skill set. As communicators and social interactors we are constantly called upon to marshal facts, take a position, present arguments and persuade others to see our viewpoint.

Of course, advocacy in all its forms is a linchpin of our judicial system. It is crucial in litigation and in presentation and determination of cases before the UK IPO, other tribunals and courts. Yet an aptitude in advocacy will have an impact on almost all aspects of your professional life. Your ability to advise clients and present to them the key aspects of the law and the facts germane to their case will be optimised when you can convey matters verbally or in writing in the most efficient and appropriate manner. Being able to advocate on behalf of your colleagues, or any other group you may belong to in the context of inter‑office administration or training, is also likely to be part of your day‑to‑day working life.

However, as part of your career journey the time may have come when you feel you are ready to hone your talents and undertake advocacy in a court or before tribunals – ie to become a professional advocate.

Defining the role

What is professional advocacy? It may be described in many ways, and over the years I have received a variety of colourful opinions from clients on this very point. One client informed me that it was my job to “get the judge to listen and make him see sense”. It is fair to say that advocacy is a close cousin of oration, and the skilled orator will always know when to speak and when to let silence reign. Pausing, allowing time for reflection or emphasis, can lift an advocate from being merely good to being truly impressive. A savvy advocate will also have honed their antennae to pick up signals from the tribunal or judge: to recognise whether more is needed or it is time to move on. You can prepare well, but never be fully prepared for the agile dance of questions and counterpoints that can sail your way and the unexpected curve balls that a judge or Hearing Officer may lob.  

Certainly, some of the basic features of advocacy relate to effective communication: being heard, but also understood. Most people assume that this is a vocal skill. But in an increasingly administrated world, often your most effective route to influence matters is via written submissions; the skeleton argument, notes on law or a summary of evidence. It has become common for matters to be resolved without hearings and on the papers only. Accordingly, being able to convey  clear legal arguments, choose the best and most persuasive arguments and highlight the evidence via written form is an essential part of modern advocacy. 

Romance v realism

Many people are attracted to advocacy by the glamorous depiction of lawyers in movies or the media. Others may simply feel they would be good at it and want to have a go. Some may have been urged by others or have myriad other reasons to feel they want to undertake a more leading or high‑profile role in their career.

Whatever the initial motivation, my genuine caution to everyone is be realistic. Sense‑check any romantic notions you may have against the reality of the actual role by talking to people who do it. Work experience is exceptionally useful to show the uplifting highs associated with the work, as well as the harshest of realities. For example, the practical difficulties of being briefed to appear in court or before the IPO very late in the day. The need to burn the midnight oil to get a skeleton argument submitted in time. The challenges of how to convey a knotty point of law in a fixed time frame via video link to a tribunal member with internet connection issues. The forensic difficulty of trying to prepare the best cross‑examination notes possible, and how to cope in that moment when the judge raises with you a point of law about which you know nothing.

Remember also that in many instances, the advocate is the person with whom the buck genuinely stops. If the advocate makes an ill‑advised concession or fails to put every point necessary to a witness there is generally no one else to blame. This can lead to professional liability concerns. Part of the shouldered burden of responsibility for most advocates is the need to make choices and decisions, with the attendant responsibility for the effects thereof.

Building your skills

So where can you turn for advocacy training? Those routinely offering professional courses may include actors or people with theatrical training. They may offer “stage craft” benefits such as deportment, voice projection, dramatic timing, engagement with an audience and how to increase “charismatic stage presence”.  Other training options can come from psychologists, who may promise to increase the advocate’s ability to “read the signs” displayed by opposing counsel, the panel or judicial members. I have also heard of people gaining insights from professional poker players, who can advise on how to mask emotions, reduce “tells” and read the signs displayed by others. Voice coaches bring obvious benefits, as do those who help with fitness and mental wellbeing – all tailored to the specific challenges of long-term, dedicated advocacy.

Cooperating with counsel may be a great start to developing your experience. If you are working on litigation where counsel is instructed, perhaps there is a role for you to work alongside them. Exploring options for collaborative working can be really useful. Could you help draft and prepare written submissions, cross‑examination notes, legal research papers and perhaps also make submissions on your feet at the hearing in respect of a distinct and discrete point of law?

Students and younger professionals regularly gain useful experience through debating or mooting, participation in mock trials or by shadowing others at work. At the Bar, we regularly have “mini‑pupils” for work experience of a few days only. In addition, many charities, courts and other socially responsible bodies are keen for pro bono advocates to lend their time and expertise, and volunteering in this way can provide excellent hands‑on experience.

A fresh and illuminating perspective can also be gained by sitting on the other side of the fence. This is why many people recognise the benefits of marshalling with judges, shadowing someone in a judicial role or serving on a tribunal. It is a way to see what works and what doesn’t. What effective and positive advocacy looks like, and how to avoid common pitfalls or negative habits.

Most people feel more confident and content if they are supported by others. It can be hard to be a lone wolf. So I would always suggest they garner assistance from others in their firm or wider community. Do take up the help of a mentor, or colleagues or friends who can advise and guide you. Discuss with them what you are considering, ask for their views and, if appropriate, their help.

Cautionary caveat

It is easy to think that polishing up such a useful skill set is bound to have a positive impact, make you a more valued member of your team and augment your attraction to current and future employers. But will it?

Each of you will have your own personal career path and trajectory. You will also be governed by your terms and conditions of employment, which may or may not identify an advocacy role (express or implied). So you are best placed to know whether or not increasing your advocacy skills may help or hinder your career plans.

Also consider that the time you may spend training or carrying out advocacy roles within the firm could significantly limit or entirely devour the time you would otherwise spend on client relationship development, colleague interactions and broader team work in relation to your core business objectives. In other words, you may be creating a niche for yourself, but it may come at a cost. It could create divisions and the potential for isolation or cause you to stall or sidestep your professional advancement. Clearly, negative impacts are not inevitable and can be avoided or minimised. However, it is prudent to exercise caution.

"Cooperating with counsel may be a great start to developing your experience"

It is also worth noting that not all advocacy styles are the same. Some people are in their element dealing with a jury but hopeless in cross‑examining witnesses. Others have fabulous written advocacy skills but are timid public speakers or unable to speak off‑the‑cuff. Some advocates have the “gift of the gab” and can weave masterful and compelling speeches but be lighter on legal expertise or an ability to marshal the key facts in a case. 

Once in a while, someone will seem to have the full package, but somehow simply doesn’t do well in court. It may be due to something simple; perhaps an inability to listen to the court or tribunal, an over‑developed ego that leaves little room for acknowledgement of the merits of the views or arguments of others, or an inability to be a team player.

If you have decided to take the plunge, however, what are the chances you will be a good advocate? You simply won’t know until you try. You may find it takes a long time to develop the blend of skills that creates a really effective advocacy style. Yet I do urge people not to be put off too early or to feel that because they think they are not cut out for standing up in court they should not give it a try.

In summary, being a great advocate relies on an unpredictable alchemy of aptitudes that are difficult to pinpoint and can take a long time to mature. But, like a good wine, they can improve with age and careful nurturing.

Denise McFarland is a Barrister, Mediator and Joint Head of Chambers at Three New Square IP Chambers
mcfarland@3newsquare.co.uk