Advocacy – what is the object?
1. Advocacy has a single object: persuasion.
2. If you persuade as an advocate you will generally win cases.
3. Advocacy is not necessarily a matter of truth, but rather of persuading a court or a tribunal to a point of view, and doing so within the scope of the relevant rules, and without misleading.
4. Persuasion to an extent depends on how the evidence comes out. If one side has all the admissible facts in its favour the other side can generally neither persuade nor win.
5. A good advocate recognises that, generally speaking, half of the cases presented cannot win. A good advocate knows when their case is not likely to be a winner. In that case, persuasion of a different kind, namely, the ability to persuade the other side to settle on the best possible terms for your side, marks out another essential skill of a good advocate. If you settle your “bad” cases, and win most of your “good” cases, you will obtain a reputation as a good advocate.
6. Persuasion is thus not just a skill for final hearing. It is also a skill to be exercised before and during a hearing in relation to possible settlement (often at court ordered mediation or conciliation), during interlocutory processes, such as applications to strike out, hearings of objections to evidence, and arguments concerning discovery.
7. Good advocates can win many cases by having the other side’s case, or part of it, struck out, or the other side’s evidence, or part of it, struck out, and by having particular documents included or excluded during discovery.
8. Whilst advocacy is not necessarily about truth in the absolute sense, it is nevertheless an advocate’s duty to:
- tell the truth; and
- not to misrepresent the truth, or mislead the decision-maker.
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