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The Power of Persuasion

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There is an increasingly vocal debate on the art of advocacy in the courtroom drama, with three distinct and competing interests.

First, the Bar, that traditional bastion of advocacy, the wig and gown brigade much loved of writers and film makers, where the great and the good have locked antlers for generations.

Next there is the emerging solicitor advocate, a relatively recent phenomenon.  Solicitors have traditionally honed their advocacy skills in the lower courts, where the standards demanded of advocates are less demanding.

However, the solicitor advocate can now apply for a Higher Courts Advocacy certificate, which, once attained, gives him rights of audience in every court in the land.  Fortunately for the Bar, their aspirations seem to stop at the lower end of crown court proceedings, short trials, applications, pleas in mitigation and the like, leaving the Bar to tackle the longer and more complicated trials. 

I suspect this is more out of self interest than an acknowledgment of their own limitations, as busy solicitors can earn considerably more back in the office than faffing around the crown court all day.

Finally, there is the Crown Prosecution ‘in house’ lawyer, also a relatively recent phenomenon, usually going head to head with the solicitor advocate, and budget driven.  These lawyers are employed not for their advocacy skills, which in many cases are found wanting, but because they are cheap.

With the recently published consultation paper from the Ministry of Justice on yet more cuts in legal aid, the increasingly vocal debate on the art of advocacy is reaching cacophonous proportions, with each of the three interested groups vying for attention.

Does it matter?  More to the point, is a good advocate more likely to win the day for his client than a bad one?  And who decides?  In a recent speech to the Bar Conference, Lord Neuburger, the Master of the Rolls, suggested that judges were best placed to comment on the advocacy skills of those appearing before them, and he may be right. 

But again, so what?  We have all had experiences of juries acquitting in the teeth of the evidence where they felt sorry for the defendant, simply because he had such an incompetent advocate.

I recall one quip that a jury is empanelled to decide who has the best advocate, but juries can be very stubborn, and the direction that they must be fair and use their common sense can be interpreted very freely.

Nowadays, the art of advocacy is all but dead on its feet.  In the good old days, when the likes of F.E. Smith and Marshall Hall used to reduce juries to tears, and for all the right reasons, advocacy was an art, and highly prized. Their skills were greatly in demand, and the public galleries would be packed with matronly ladies swooning and throwing their undergarments into the well of the court.  Heady days indeed! 

Sadly, with the change of emphasis on ‘conveyor belt’ justice, advocacy is a luxury the profession can no longer afford.  Even judges are becoming an irrelevance, as their contribution to the trial process is strictly limited to their ‘idiot guides’ on what they can say, and when, and their sentencing powers are set in stone by even more ‘idiot guides’ to achieve uniformity and to avoid upsetting the powers that be.

So I say, a plague on all your houses!  Come one, come all, and if it saves money, so much the better!  What a depressing thought!

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