Federal Magistrate Toni Lucev - 11 December 2012, Western Australian Courts Summer Clerks Course Perth

(*The views expressed in this paper are the views of Federal Magistrate Lucev. They are not, and do not purport to be, the views of the Federal Magistrate’s Court or any other Federal Magistrate.)

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:

  1. tell the truth; and
  2. not to misrepresent the truth, or mislead the decision-maker.

Qualities of an advocate

Be a good listener

9. Good advocates are good listeners. They listen to witnesses and instructing solicitors before a hearing. During a hearing they listen to witnesses for all sides, the court and their instructing solicitor.

10. Having listened, a good advocate applies other qualities and skills to what has been heard. Ultimately, as an advocate, it is your case, and you must, having listened, make decisions upon which the outcome of the case will rest.

Objectivity

11. An advocate is called upon to exercise objective judgment in relation to the case to be argued. You will never be a great advocate if you take cases and argue them solely, or perhaps even principally, without questioning whether what is put to you in your brief is correct. Often as an advocate it is safer to start from the premise that what is being put is wrong, or at least, not always right. It is correct to always question what you are told in the brief. Only by doing this can you know the weaknesses in the case, and it is only by knowing the weaknesses in the case, that you can advise about the strength of the case: and whether it should be argued, or the terms on which it ought to be settled.

Frankness

12. Tell your instructing solicitors, and their clients, what they do not want to hear. You will lose unscrupulous solicitors and clients, but gain far more solicitors and clients than you lose, and will develop a reputation for telling it like it is, and for saving people’s money and reputation by not involving them in unnecessary hearings. In court, if you are wrong, admit it. Don’t defend the indefensible. If you are not wrong, be courageous, and, within the limits of your duty as an officer of the court, stand your ground in accordance with your duty to your client.

Honesty

13. Be honest in all of your dealings with solicitors and clients, and your opponents. Be honest with the court. You must not mislead the court. If you do, you will, eventually, be caught, which can lead to disciplinary action and the loss of your practising certificate.

Courtesy

14. Be courteous to the court, your opponents, witnesses, and court staff. Remember that it is often registry and chambers’ staff who determine when, or if, your hearing (and particularly urgent hearings) get heard.

15. In court, and with opponents and witnesses, you can be both tough and courteous.

16. Courtesy is also about knowing about etiquette, including court etiquette. Be polite, address people by their correct titles, know the names of your client and the witnesses (both your own and those of the other side), and ensure that you are properly attired, both generally and in relation to robing where necessary.

17. Be on time! You do not want to have the embarrassment of applying to set aside orders dismissing a matter for non-appearance because you were not in court at the appointed time.

Courage

18. You should have the courage to back your judgment. Ultimately, subject to the views of the court, it is your judgment which decides whether, and how, the case proceeds.

19. You should also have the courage to be polite but firm, and not scared of, the court. You should be able to stand up under fire. To extinguish a flame it is sometimes necessary to get burnt and to keep on going. With objections to evidence, for example, remember that a single piece of evidence can be the subject of multiple objections, and just because your first objection is dismissed, don’t run away from your second objection.

Industry

20. You must prepare. You must claw away at the facts. You must know them for the duration of the case. Then you must forget them and move on to the next case.

21. You must read and know the law. Research the law, and research it properly. Too often young advocates take a passage cited in a text book, or the paragraph from their computer search, without reading the rest of the case. As often as not, a passage which might seem to be of assistance, when read in the entire context of a particular case, is not actually of assistance. Good advocates also check the judgments of the judge or magistrate or tribunal member before whom they are appearing. There is nothing wrong, and everything right, with citing a High Court or Full Court authority for a proposition, and following it up with a first instance judgment to the same effect of the judge before whom you are appearing.

22. A good advocate cannot, on a medium to long-term basis, wing it. Industry has been an essential characteristic of all of the great advocates.

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, and comes as a consequence of some, if not all, of the qualities referred to above.

24. Young advocates 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 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:

  1. 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
  2. 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.

Objections

The preparation of objections

35. With affidavit or written statement evidence it is possible to prepare objections in advance of the hearing, and sometimes the hearing of objections precedes the final hearing. In such cases you will be required to put in objections in advance, and in some cases, even where there is no pre-hearing of the objections, you will still be required to file objections to the evidence in advance of the hearing.

36. In cases where the objections are filed in advance of the hearing it is good practice, and something which pleases courts, if as many of the objections as possible can be dealt with by the parties prior to the proceedings. Thus, the Court has to deal with only those objections about which the parties are genuinely in dispute.

37. In cases where there is no filing of written materials in advance an advocate should nevertheless consider what objections it might be necessary to take to oral evidence when it is given. This requires a great deal of thought, some imagination, and often work which is not used. It is nevertheless still necessary to ensure that you are as prepared as you can be going into a hearing.

Evidence-in-chief

38. With the rise of written statements and affidavits filed in advance of a hearing the ability to examine a witness-in-chief has become something of a lost art. It is however an art which is useful given that often in shorter cases courts are resorting to oral evidence only, particularly for reasons of expense and time.

39. Before dealing further with questions of oral evidence, advocates should be alive to written statements that are not in the witness’ own words. Often one sees witness statements which although purportedly made by a cleaner or truck driver, are clearly in the language of the lawyer. Often one sees witness statements in the same case where large slabs of evidence for two or three witnesses are in exactly the same words. Such affidavits and witness statements are easy pickings for your opponent: and the effect of a witness’ evidence is greatly diminished by their admission that the statement was written by “the lawyer” and they just signed it because it sounded right. Even worse is the trouble caused by two witnesses, neither of whom wishes to be caught out, who say that the passages, identical in both witness statements, are in their own words. Inevitably, there is a concession that that is not so when they are shown the other affidavit or witness statement. Alternatively, in final submissions it is difficult to rebut the suggestion that one or both of those persons were lying. Obviously, such matters significantly affect the credit of a witness.

40. In short, when witnesses sign affidavits and witness statements make sure they are in their own words, and use the type of language and phraseology that they use, and, importantly, used at the time (so far as they can recall it). A mine worker on a picket line is more likely to say “I told the fucking scab to piss off, and pointed him in the right direction” than “I forcefully informed Mr X that I did not want him in the vicinity of the picket line, and gesticulated accordingly.

41. With oral evidence-in-chief there are essential starting words for your questions. Generally, they are:

  1. what?;
  2. when?;
  3. who?;
  4. where?; and
  5. how?

42. They are essential words because generally, except for undisputed or uncontroversial matters, you cannot lead your witnesses in evidence-in-chief.

43. Remember to qualify your witness. When a witness says that he was surprised that Mr X was not in the tea room at 7.30am, it is important that the Court know that the witness is the janitor, that he has followed the same activity schedule in stocking the tea room and refreshing the bathroom towels for the last 20 years, and that this is the first time in Mr X’s four years with the company that he has not been in the tea room making his morning cup of tea at 7.30am. Make sure that you let the Court know that your witness has relevant expertise, and, therefore, understands what might have been put to them in the course of the events the subject of the dispute. Chief executive officers were not all born in suits brandishing a Harvard MBA. Many were accountants, mining engineers or human resource professionals, in a previous life (some might even have been lawyers or policemen or mechanics), and often their expertise, and qualifications, might be relevant to their understanding of the facts of a dispute.

44. When you have a witness in the witness box make sure that they are comfortable. Set the scene by asking the obvious questions of name, address or business address, their qualifications, and experience. Once you get into the subject matter, make sure that you indicate where you are going:

  1. If I can now turn to the events of 1 January 2012” or
  2. I want to now deal with the corporate structure of the company” or
  3. I now need you to assist His Honour with an understanding of the conveyor belt mechanism.

Not only does this tell the witness where the evidence is headed (without leading them as to factual matters), but it also helps the judge.

45. In evidence-in-chief use the basic tools of the trade to get the story out. For example:

  1. Where were you at [time] on [date]?
  2. What did you see there?
  3. What happened then?
  4. Did anyone speak?
  5. Who spoke?
  6. What did they say?
  7. Did anyone else speak?
  8. What did that person say?
  9. Did that person do what he said he would do?
  10. Did you see what he did?
  11. Can you describe how he did it?
  12. How long did it take for these events to occur?
  13. Did you do anything in response to these events?
  14. And did the police arrive?
  15. At what time?

46. Short, sharp, simple questions in order to get the narrative out. Make sure that you get the story out before you start submitting plans, photos and documents. In the above example, where it is clear that the witness has phoned the police, tender her phone records at the conclusion of this evidence. Likewise, if it necessary to submit a plan of the vicinity in which these events occurred, submit that plan after you have got the witness to describe the area concerned. Similarly, if the witness took a photo or photos of what occurred, or the aftermath of what occurred, tender those photos after the story has been put. For short evidence it can be done at the conclusion of the evidence, for longer evidence it may need to be done at the end of each part of the evidence, assuming it breaks into some kind of logical sequence or pattern. The reason for doing this is that you do not want to interrupt the flow of a witness’ story. You can always get the witness to then point out the salient features of the photos or plans.

47. Preparation is generally essential for cross-examination of witnesses, even in short matters. So:

  1. be prepared;
  2. know your witnesses: ensure that you have read the witness statements beforehand, and determine those issues or topics upon which you seek to cross-examine;
  3. listen carefully to the evidence-in-chief, and do not cross-examine on evidence given which is favourable to you, and which you do not need to traverse. Likewise, if affidavit evidence is favourable, and there is no need to traverse it, don’t; and
  4. do not get bogged down in the papers while cross-examining. If necessary, extract and copy the relevant documents, or parts of documents, before each witness’ cross-examination. You need to keep up a rhythm in cross-examination, and not let the witness have time to fill in a pause by correcting, or trying to correct, evidence that they have given earlier. (The pause for dramatic effect where you have just obtained a damaging and unambiguous admission is an exception!).

48. The purposes of cross-examination are to be borne in mind. They are:

  1. to obtain or develop material favourable to your case, that is, that strengthens your case;
  2. to discredit the evidence of the other side which is unfavourable to your case;
  3. to discredit the witnesses who are unfavourable to your case; and
  4. importantly, to put contradictory evidence to the witnesses for the other side. If a matter is in issue, make sure you put it to the relevant witness.

49. Cross-examination is the firing of bullets with the intention to inflict damage. But how do you do it?

50. There are various modes of impeachment of witnesses. For example:

  1. by establishing that their facts are wrong, in part or whole;
  2. by establishing faulty memory;
  3. by prior inconsistent statement (a task made much easier by the advent of email, Facebook and Twitter);
  4. the establishment of bias or prejudice; and
  5. in appropriate cases, attacks on a witness’ character.

51. It is usually unnecessary to cross-examine crossly. You can be direct, persistent and ask hard questions, without doing it crossly.

52. It is usually better to try to develop favourable material first, before directly challenging a witness. A witness who feels comfortable with you is less likely to see you beginning to chip away at their story or to see the critical question coming.

53. If you have a witness who is patently truthful, and whose evidence you are unlikely to impeach, leave the witness alone.

54. Above all, in cross-examination, do not simply go over the evidence-in-chief. All that does is have the evidence-in-chief repeated twice and it reinforces its believability. Simply going over the evidence-in-chief also bores the court to tears. Focus on what you need to impeach and challenge that evidence.

55. If conflict or contradiction is already evident in the evidence-in-chief leave it alone: do not cross-examine on it, as all that you will do is give the witness an opportunity to amend or ameliorate the effect of their evidence. Often the best evidence for your case is evidence-in-chief from your opponent’s witnesses which conflicts or contradicts your opponent’s case, and which has been left untouched by cross-examination, and which can then be usefully used in submissions to impeach the other party’s case.

56. If you get a good answer in cross-examination leave it alone. Resist the temptation to ask the one extra question, as a witness will probably realise they have made a mistake and somehow qualify the answer that they have previously given.

57. For example:

There have never been any complaints concerning Dr Y’s surgical skills? – No.

He was a good surgeon then? – Well, I’m not so sure about that.

58. The latter answer gets picked up in re-examination. The witness is asked:

You said you were not so sure that Dr Y was a good surgeon. Why is that?”,

and an answer is given which does not assist your case (eg, no complaints, but just an average surgeon, or no complaints, but many errors which have not been subject to complaint).

59. Do not ask a question without having a good reason to do so. If, for example you ask the question “Well, why did you do that?” you are likely to get a perfectly rational explanation damaging to your case. It is the type of question that ought not be asked unless you have iron clad evidence which establishes why the witness acted as he did, which can then be put to the witness if his explanation is false.

60. Ask short, directed questions in cross-examination, not long, general ones. For example:

You saw Mr X in the mess?

You approached him?

Did he say ‘hello’ to you?

You called him ‘a sneaky bastard’?

Mr X said nothing in response to that?

You then called Mr X an ‘arsehole’?

Did Mr X then say ‘don’t call me that’?

Did you then say ‘I won’t’?

Instead you hit him didn’t you?

You hit him with a closed fist didn’t you?

You hit him on the nose?

And Mr X’s nose bled profusely didn’t it?

Do you recognise this work shirt with Mr X’s name on it?

Do you agree that the shirt has significant blood stains on the front of it?

61. Compare that to:

You saw Mr X in the mess on the day in question – what happened?

The answer goes something like:

I said ‘hello’, he was distracted and tripped on a chair leg, and fell flat on his nose on the floor.

62. Immediately the generality of the question has allowed the witness being cross-examined to control the form of the answer, and to provide an alternative explanation as to why it is that Mr X’s shirt was covered in blood, and, more importantly, that he was not assaulted by the witness. The other difficulty is that in cross-examination you then have to unpick that story, and if it is Mr X’s word against the witness’ (the accused), and there were no other witnesses to the event, that can cause you problems.

63. If a witness says that they do not recall something, and you have positive evidence which will be led to demonstrate what it is that they don’t recall, generally leave the issue alone. Not recalling something is quite different to positively denying that something happened, and if you have “put” the issue to the witness, who does not recall it, the court will generally prefer your witness’ positive evidence.

64. When cross-examining, make sure that you shut the gate. Try to leave no room for the witness to escape, either in re-examination, or by the leading of other evidence.

65. How do you close the gate? The following is an example in which one of the issues was whether or not the employee concerned ought to be reinstated. The employee concerned had written a letter to a very senior officer of the company by which he had been employed prior to his termination, and had written the letter just 13 days before a hearing in which he sought reinstatement. The cross-examination which follows was the final part of a lengthy cross-examination, and is directed to establishing that the working relationship between the terminated employee, and his former employer and former workmates, was so irretrievably broken down as to preclude an order for the terminated employee’s reinstatement. The terms of the letter are evident from the terms of the cross-examination which follows.

How many times in that letter do you accuse the company of being hypocrites, or of hypocrisy? --- Quite a few times, I believe, in there.

And you still believe that the company is a hypocritical organisation? --- I think they were getting better now.

Do you still believe they’re a hypocritical organisation? --- to a certain extent, yes.

And the people that you believe are hypocrites are still with it? --- I think they’re – they’re going to be better.

Are the people that you believe are hypocrites as at 13 days ago still with it? --- I – yes.

Do you enjoy working with hypocrites? --- No, I don’t.

Do you enjoy working with liars? --- No.

Do you enjoy working with people who are arrogant? --- Not particularly, no.

Do you enjoy working with people who are vindictive? --- No, I don’t.

Do you enjoy working with vindictive pricks? --- No, I don’t.

Do you enjoy working with fucking lying dogs? --- No, I don’t.

Would you understand why people against whom those allegations had been made might not want to work with you either? --- I do understand it, yes.

Do you understand why they might say they have lost all trust and confidence in you? --- I can understand, yes.

And particularly when those allegations are made, by and large, on the basis of what you have heard in the pub? --- This is right.”

66. And that is where the cross-examination finished. And, in those circumstances, there could be no doubt that it was wholly impracticable to reinstate the terminated employee concerned given what he had said about his former employer and his former workmates in the letter just 13 days before the hearing.

67. Start and finish your cross-examination on a good point. Never sit down at a disadvantage, for example on a disallowed objection or an answer adverse to your case which you were obviously not expecting. Just occasionally the theatre and psychology of a cross-examination leaves an impression on the judge! Final impressions can be important.

Re-examination

68. The question always arises as to whether you should re-examine.

69. Do not re-examine unless you need to. When do you need to? First, when you need to have the witness explain or clarify some matter which has become confused in cross-examination, or, second, to re-establish credit.

70. The following is an example of clarification:

You were asked if you reported the assault straight away and you said ‘no’. Why didn’t you report it straight away? --- Because I was taken to the hospital immediately after the assault.

How long were you in hospital? --- Two days.

What was done to you whilst you were in hospital? --- I had my nose reconstructed and plates put in my cheekbone which was fractured.

How long after you were released from hospital did you report the assault? --- I was taken straight from the hospital to my local police station where I made a written report.

71. And so the delay is explained.

72. Only re-examine on credit if you know what you will get, and you can only know what you will get if you actually know what there is to know about your witnesses. The following is an example of re-examination on credit:

You agreed you have stolen things before? --- Yes.

When was that? --- 1961.

How old were you? --- 14.

What did you steal?--- Bread, bacon and eggs.

Where from? --- My local delicatessen.

Why? --- Because my mother and father were both chronic alcoholics, they were both unemployed - there was a credit squeeze in 1961 and their small business had gone under - the family had no money, and my six younger brothers and sisters had not eaten for two days since the nuns gave them lunch at school on the previous Friday.

Have you ever been charged with a criminal offence of any kind since? --- No.

Credit restored!

Closing the case

73. How do you close your case? You do so confidently.

74. You can begin preparing your closing from the time you begin preparation of the case. There is nothing wrong with preparing an outline of the argument, notes on the evidence which you understand will be led (and which will have to be adjusted depending on what evidence is led), and submissions on the law, well before the hearing. You can then add or subtract from this skeletal outline as the case proceeds, and use it as the basis for your closing oral submissions.

75. What is the method for making a closing submission? First, state the argument (that is the theory of your case). Then deal with the evidence in support of that argument, and also deal with, and explain away, so far as you can, the evidence in opposition to your argument. State the relevant legal conclusions with respect to the various elements of the case, having regard to the evidence that proves those elements. Finally, and make sure you do this, state the result that you say ought to follow, or the relief to which you say you are entitled.

Reading on advocacy

76. Reading on advocacy is no substitute for actually appearing as an advocate. There are however, several excellent, and relatively short, books on advocacy, which might be of some assistance.

77. Richard Du Cann’s The Art of the Advocate, first written in the 1960’s, but with revisions in 1980 and a second edition in the last decade or so, is a brilliant general introduction to what it is to be, and what is necessary to be, an advocate.

78. John Phillips’ Advocacy with Honour, is an excellent small text, and very practical, particularly for those involved in lower court criminal proceedings.

79. Sir David Napley’s The Technique of Persuasion, although very English, is especially useful on the essentials of preparation for trial, the ethics of advocacy, and the strategy and tactics of advocacy, and I think an especially useful text for young lawyers assisting in the preparation of cases for hearing.

80. Chester Porter QC’s The Gentle Art of Persuasion. How to argue effectively, is not strictly a text about trial advocacy, but rather a more general treatise on how to persuade. Some of the suggested techniques, particularly in relation to the ascertainment of facts and simplification of an argument, are however, techniques that might equally apply to trial advocacy, and the text is also helpful in terms of the theory and practice of persuasion as it might apply to the settlement of disputes in which lawyers become involved.

81. John Munkman’s The Technique of Advocacy, and JL Glisson QC’s Advocacy and Practicebeing the 4th edition of Cross-Examination: Practice and Procedure are detailed technical texts for those who are trial lawyers, or who seriously wish to become trial lawyers. They both repay detailed reading, and re-reading over the years, in relation to the technique and technical aspects of trial advocacy.

82. A short but very helpful article on cross-examination is Justice McKechnie’s Practical Advocacy: preparation for cross-examination in the October 2001 edition of the Law Society magazine Brief.

Pro bono advocacy

83. For those who seriously wish to become advocates, once admitted, there are significant pro bono opportunities available which young lawyers, if their firms allow them, ought not pass up. This is particularly so in relation to migration law, and the judicial review of decisions of administrative decision-makers, particularly in relation to applications for refugee status. These cases generally do not involve any witnesses, and are more akin to appellate advocacy, but are good training in the formulation and making of submissions on the legal issues involved. Community, youth and rural legal services are often on the lookout for pro bono assistance, particularly in relation to small criminal, family, workplace relations and anti-discrimination matters, and again, providing firms allow it, young lawyers can pick up useful pro bono advocacy experience if they make it known that they are available to perform this type of work.

Disclaimer

84. This short, non-technical, paper is not the be all and end all of advocacy – far from it!! It is however, intended to give those taking their first steps in advocacy some essential tips which might assist once they have got past that first essential phrase “May it please the Court (or Tribunal etc), I appear for …”.