There is a growing concern about the quality of criminal advocates in England and Wales. With reference to the new quality Assurance Scheme for Advocates, Baroness Deech is reported as saying that
“Judges’ knowledge and experience gives them the skills to be able to quickly and efficiently asses the quality of the advocacy before them. We believe it is important that advocates are assessed in real-life situations, in the same way that other professions, such as teachers, are subject to ‘on the job’ monitoring and assessment.”
A) What, in your opinion, are the most important qualities of the effective criminal advocate?
B) How would you advise trial judges to evaluate these qualities in the advocates who appear before them?
C) How could non-legal professions contribute to improving the quality of advocacy for the stakeholders in the Criminal Justice System?
This section will focus on an analysis into the qualities of an advocate and those, one would hope that advocates would have and why this is important.
The qualities of a trial advocate are important because these are one of the main essentials practitioners need to have if they are going to succeed in judicial process. This is an important factor to highlight at the outset, as one needs to have a firm understanding of the main basic qualities needed. Professor J.W. Montgomery refers to John .H Munkman’s written literature where he lists the six qualities required of an advocate, those being a person with good speaking voice, who is in command of his words, confidence, persistence, practical judgment and experience of handling cases.1 This is a correct statement because one would hope that these qualities would lead to the better advocate in practice. Experience is important as the more experience one has managing cases the more naturally judicial process should become to the advocate. This also comes when the advocate is confident in himself and is in command of his surroundings. This is important because this sends a message to the court that the lawyer is comfortable in his surroundings and is firmly in control. An advocate who is seen to be confident would demonstrate this through their body language and speaking manner and how they come across to the audience. A positive appearance is always the correct message to send out. This coincides with dress and public speaking for the purposes of being a good advocate.2]
The Advocates good character
One may also expect to see that the advocate has good character in that he is trustworthy and can be believed. Montgomery seems to be of the view that specialists in the communication field are beginning to recognise that the character of an advocate cannot be ignored.3 He refers to Rieke and Sillars who cite “persons who are perceived by receivers to be trustworthy have high credibility. In the literature since classical times, other words have been used that may help to define the meaning of trustworthiness: probity, character, evaluative, reliability and safety. Again common sense would tell us that we tend to accept ideas more readily from persons whom we regard as being trustworthy”.4 So it would appear that good character is an essential element and is rooted in classical argument. This assertion is plausible as the trustworthier the advocate is the more successful he is likely to be in persuading the audience. Indeed this portrays the honesty of the advocate. Montgomery further refers to the view of Chief Justice Cockburn who says, “The arms which an advocate wields he ought to use as warrior, not as an assassin. He ought to uphold the interests of his client per fas and not per nefas. He ought to know how to reconcile the interests of his clients with the eternal interests of truth and justice”.5 So the good character of the advocate is an important one as this helps to demonstrate honesty, trustworthiness and leads to a greater chance of being successful in persuasion. Montgomery’s view therefore holds weight.
However one cannot ignore that Montgomery is speaking from the classical rhetorical stance, which did incorporate ethical considerations and for him made those persons, better advocates. It is his assertion that the legal advocate of today is the unprincipled hired gun6 and refers to the following passage from John Grisham’s The Runaway Jury, “Krigler was telling the truth, but the truth needed to be blurred at this point. This was a cross examination a crucial one, so to hell with the truth. The witness had to be discredited”.7 He is right to point out that prior to the 18thcentury the tradition of classical rhetoric insisted on the intimate relationship between advocacy and ethics. State legal activity impacts individuals and societal life on the deepest level and lack of character and solid values can have the worst consequences.8 He is correct in saying that the modern view of advocacy today is isolated from ethics. Indeed it is arguable at whether it can really be said that the modern advocate is a good person with good qualities. As we are required to acknowledge ethical considerations only through the enactment of a code of conduct we seem to have lost the inherited good character advocate that once lived. It would appear that although the advocate should have good character quality it is correct to affirm that not all advocates have this quality. This is a growing concern in that it can lead one to believe that we are slowly adopting a system of ever increasing dishonesty.
Acting and Performance
The performance of the advocate would also adopt the use of acting techniques. L. McCrimmon and I. Maxwell are of the view that partisan advocacy in the sense of acting is a basic tenet of the adversarial system.9 They refer to Lord Reid who states in Rondel v Worsley “every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his clients case”.10 This is correct as it is true to say that as an officer of the court the advocate has an overriding duty and a responsibility not to mislead the court. One may certainly expect an advocate to have these techniques and to be able to act out but more so because he has a duty to. On this analysis one would think that the system calls for the actor, which is right.
It is important that an advocate can act and perform in judicial process and by employing these techniques it can contribute towards making the trial more effective. It should provide a stimulating effect for the audience and the court as a whole. This would help to keep the jury on the day alive and engaged in the process; it would provide more interest and should help anyone to understand any complexities more sufficiently. According to Peter W. Murphy courtroom acting is perfectly sound and he takes the view that acting in any form is not unethical.11 He does not believe that acting violates any rules of ethics and thinks that it would not be possible to adopt a rule to forbid it.12]
However what Murphy is suggesting is that as lawyers are subject to human emotions instead of playing an angry lawyer they should not be afraid to let the jury see that he is in fact outraged. In this analysis the advocate does not adopt a courtroom demeanour that gives rise to an argument that dramatic acting is unethical and instead like Sir John Gielgud plays only him.13 This view is correct because judges and juries are human dealing with real human drama. Their reaction to that drama will inevitably be that of a human. A trial advocate who can share that reaction is likely to be effective. This overlaps with Montgomery’s idea about honesty because if an advocate is of good character this can help to provide the main drive to acting with emotion. It depends not on an ability to adopt poses but instead on an ability to be oneself, which in turn should make for a better advocate and to be seen as such therefore Murphy is right.
Emotion and understanding
One may also want to see that an advocate understands. He should not only be honest but also kind, considerate and understanding of others. This is an advocate who should be able to make the client feel at ease, to comfort a person and help them to relax in the environment they are placed in. Verbal interaction is a central feature of human social life and the rules governing courtroom interactions specify that lawyers ask questions and witnesses answer them. The institutional constraints introduced in court interactions not found in everyday contexts help the judiciary do the assigned task of trying cases. For the most part these rules have the consequences of empowering lawyers over the witnesses they examine. According to Conley and O’barr there is an imbalance of power in the courtroom dialog thereby creating consequences during cross-examinations.14 This is a powerful assertion because it is certainly true to say that when the advocate’s own witnesses are questioned this is done in a supportive manner. On the other hand a cross-examination is a hostile environment for both advocate and witness. Given that the advocate has the objective of discrediting opposition it is also true to say that he uses this rule as a hide behind when using his tools, such as the silence mechanism or the question form to perhaps go beyond what he should be doing. As the advocate seeks full control he can be somewhat manipulative. When this happens it affirms what Montgomery said when he referred to Grisham’s assertion that “The truth needed to be blurred at this point. This was a cross examination a crucial one, so to hell with the truth. The witness had to be discredited”.15 Again this shows that the witness is made to feel uncomfortable and demonstrates that the advocate is not considerate or understanding. He is instead manipulative in an indirect sense in that it is not always plainly obvious.
In light of the concerns raised despite the qualities one would hope that an advocate would have it is true to say that they don’t always possess these. This would appear to show that by keeping our present system in play without an amendment he would not likely develop them. It is without a doubt that this is funding an increasing concern.
1 J.W. Montgomery, ‘Advocacy Classical Rhetoric and Legal Ethics’, Christian Law Review, Vol. 116, 1998, P. 117
3 ibid p. 123
5 ibid p. 124
6 ibid p. 116
8 ibid p. 126
9 L. McCrimmon & I. Maxwell, ‘Teaching Trial Advocacy: Inviting the Thespian into Blackstone’s Tower’, The Law Teacher, Vol. 33, issue 1, 1999, p. 14
11 P W. Murphy, ‘There’s No Business like…? Some Thoughts on the Ethics of Acting In The Courtroom’, South Texas Law Review, vol. 111, 2003, P. 118
13 ibid p. 117
14 J M Conley & W M O’Barr, Just Words, Law, Language and Power, (2ndedn), Chicago Press, London, 1998, p. 21
15 Professor J.W. Montgomery, op. cit. p. 116