Advocate – being a Presence
23. It has been said that without presence there is nothing at all. Presence is, however, a quality that is usually developed over time by an advocate, and comes as a consequence of some, if not all, of the qualities referred to above.
24. A young advocate who can hide their nerves will generally have presence if they have confidence and courage and are across their case. Presence is destroyed by an advocate who in response to every question from the court, or before almost every question in a cross-examination, has to seek instructions. Eloquence is not necessary. The ability to tell a story simply, and to maintain command both of your own and your opponent’s witnesses, is necessary. Whilst eloquence is not necessary, command of the English language is necessary, and the latter may, in time, lead to the former. The capacity to use the right word at the right time can leave a lasting impression, for better or worse. A single word or phrase in cross-examination or submissions can sometimes make a difference.
Before the case commences
The first three rules
25. The first three rules for an advocate are: prepare, prepare and prepare.
The fourth fifth and sixth rules
26. The fourth, fifth and sixth rules are: cull, cull and cull.
27. Order and simplicity and relevance are of the greatest assistance to a court in determining a case. Order and simplicity come from preparation and proper culling of materials, submissions, examinations and cross-examinations. Relevance comes to be understood from an understanding of your case, both factually and legally.
View the scene
28. You generally cannot properly present many cases unless you have viewed the place, scene or the equipment involved, and had someone explain to you what occurred, or how the equipment works, or have seen the equipment in operation. It is only by going and looking, listening and asking, that you will find these things out. Remember, that what looks like a door in a photo in your brief, may not be a door at all, or may not, at least, be a “door” as defined in the relevant legislation.
Prepare your evidence
29. Prepare your evidence to prove the elements of your case. That is, what you have to prove or disprove in order to be successful. Chronology and context are important, but you only need to prove or disprove those facts which are relevant to the legal elements of the case. It is law, not history. Remember, that sometimes you can admit all the facts, except a critical fact, and your evidence need only deal with that fact (for example, that the door is not a “door”).
30. Make sure that your evidence is prepared. That is, that the affidavits are filed, or witness statements have been prepared, and, where necessary, witnesses subpoenaed. Make sure that the relevant documents have been discovered, or are in evidence, and make sure that you have looked at them, and read them. Likewise, make sure that you know which documents you intend to tender as exhibits. If at all possible prepare exhibits such as photos and plans to assist the Court to “see” the evidence. If necessary, go on a view, or have brought to court equipment or devices which show how things work or which have recorded what occurred.
31. Importantly, be prepared to meet objections to your evidence, and make objections to the other side’s evidence.
32. So far as you can, prepare cross-examination in advance. But do so by reference to topics or dot points, not actual questions. There are two reasons for this:
- what questions you ask and the precise form of them will ultimately depend upon the manner in which the evidence is given and what that evidence is, and you need to maintain some flexibility in this regard; and
- the ability to formulate and put a question, or questions, often rapidly, can be essential to the rhythm of the cross-examination and the breaking down of a witness. This is hindered if you have to stop and read out the next question. Sometimes, delay can allow the witness to blurt out a correction, or half of a correction, with the latter being picked up in re-examination by your opponent, and a then fulsome explanation, harmful to your case, being given by the witness. It can also be embarrassing if your pre-prepared questions do not relate to the evidence which is actually being given. It quickly becomes apparent that you are not cross-examining, but simply reading out prepared questions.
Opening
33. Do you open the case? The short answer is yes, because it represents an invaluable opportunity to set the scene and tell the court what it is that you seek to prove. No matter how good your memory, it is a good idea to either write down or map out your opening. Only the very greatest of advocates can remember, and more importantly, orally deliver, everything they wish to say without some written aids.
34. How do you open? Open with moderation. It is better to under-sell what it is that you seek to prove in opening than over-sell it. If you over-sell it and do not prove it, gaps in your case are easily seen by your opponent and by the court. Open as concisely as you can, setting out the essential facts that you understand you can prove.
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