ADVOCACY
ADVOCACY IN THE PROFESSION – IS IT STILL JUST AS RELEVANT? The Law Society’s Advocacy Committee sat down with Justice Livesey, President of the Court of Appeal, to discuss the modern Advocate. ADVOCACY COMMITTEE (AC): Justice Livesey, how did you start your advocacy career? USTICE LIVESEY (JL): After making enquiries I went to a firm which I knew encouraged people to go to Court. That was a firm called Ward & Partners. It had a very large amount of personal injury and insurance litigation and many members of the firm in the late 80’s did trials every week. There were other firms doing it too, such as Fisher Jeffries, Wallmans and of course the Crown Prosecutors Department. I got the job at Ward & Partners after I spent just under a year as a Judges Associate.
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AC: How did those firms encourage you to actively advocate on behalf of their clients? JL: It was just part and parcel of how the firms worked. When I started out I was only allowed to do dog and parking prosecutions for a year. I was a bit annoyed about that but a couple of those went on appeal to the Supreme Court so that was quite exciting. The firm just assumed that I would do those appeals. Then after a year I was allowed to do whiplash cases and after another year or so more serious issues and injuries and it went from there. I suppose 5 years out I was doing nervous shock, brain damage cases and small insurance cases. The Bar was a lot smaller and by and large it was the senior partners that had left the firms and gone to the Bar that we would brief on the big cases. There were silks such as John von Doussa QC, John
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Mansfield QC, Bruce Lander QC, Terry Worthington QC and Tim Anderson QC. Most of the trials in those days were in the District Court and most of the trials were being done by people in firms. As I picked up my trial work I started doing cases against people like David Smith, David Lovell and Richard White. They were all at the bar but they weren’t QC’s at that stage. Later I juniored silks such as Tony Besanko QC, Robert Lawson QC and Tom Gray QC. AC: By having an employer that encouraged you that way, did that help you stay at the firm as this might be important for employers presently? JL: I think it did. It was easier in that that was the expectation that you wouldn’t go to the bar until you had been a partner in a firm. That has changed markedly in the last 25 years. But I do think that contributed to the job satisfaction. Now you shouldn’t think that everyone stayed in the trial list. A number of people said we don’t want to do trials anymore and we don’t want to do appeals. So it was really very much a question of choice but a choice made after having had the experience of doing it. That was the way the firm was set up - it wasn’t set up to brief everything out that was thought to be an unnecessary expense. AC: What advice can you give to new advocates or those experienced practitioners that are a bit rusty and reluctant to argue things like Interlocutory Applications or Guilty Pleas?
Justice Livesey, President of the Court of Appeal
JL: Well the first thing is to do it. You have to start doing it and keep doing it. There is no substitute for having the experience of actually putting an argument, having the argument criticised by your opponent or by the Court and having to deal with that in the course of the argument. The second thing is to prepare thoroughly and there are ways of going about preparation. You start with the Act or Rules under which you are operating, the leading authorities, what the key facts are and how you say the law should be applied to those and then you think about how you are going to persuade the Court to make the order your client requires. Now if you are rusty then you need to put in more preparation than you would if you are practised at doing it. So that is one of the things to bear in mind - that you have to prepare more than you would if you are doing it routinely. You cannot expect to charge for that or get paid for it, it’s part of your own development that you over-prepare so that you are well prepared and confident when you get into the Court room.
