Advocacy in the profession – is it still just as relevant? – Q&A with

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?

JUSTICE LIVESEY (JL): After making enquiries I went to a fi rm which I knew encouraged people to go to Court. That was a fi rm called Ward & Partners. It had a very large amount of personal injury and insurance litigation and many members of the fi rm in the late 80’s did trials every week. There were other fi rms 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.

AC: How did those fi rms encourage you to actively advocate on behalf of their clients?

JL: It was just part and parcel of how the fi rms 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 fi rm 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 fi rms and gone to the Bar that we would brief on the big cases. There were silks such as John von Doussa QC, John Mansfi eld 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 fi rms. 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 fi rm 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 fi rm. 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 fi rm 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 fi rst 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 confi dent when you get into the Court room.

AC: Looking back on your career as an advocate but in particular as a solicitor advocate what advice would you give to your younger self?

JL: I was very keen about wanting to be in Court, perhaps a bit too keen, but I just kept doing it and I kept practising it and I took up as many advocacy courses as I could and did a number of those Law Society advocacy courses that were being run on weekends. I went to a couple of interstate ones. I read up about advocacy and advocates and just tried to keep immersed in the topic. I was doing that at the same time as I was taking as many briefs as I could in the fi rm. So we had a group in the fi rm that were partners that were doing briefs a lot and whilst we might have started in insurance I was lucky in those days to get chances to do cases for bank clients, local and district councils, some statutory bodies, some environment stuff, some commercial cases, so all sorts of cases. Eventually we got work from Lloyds of London syndicates, so we got directors and offi cer’s liability cases and things like that, so just getting a chance to do a range of things and putting yourself out to do a range of things was really helpful.

AC: Throughout courts and tribunals there appears to be a direction towards written submissions. How do you think this has changed if at all in the role of a solicitor advocate?

JL: I think it’s got harder in the sense that, like everything, standards and expectations have risen. So it’s harder to meld running fi les or managing teams with being in Court a lot. I was fortunate because there was an expectation that would happen. As there were a number of senior people in the work group I was in I was able to delegate a bit, nick off to Court and do cases. I think it’s really just a question of how you structure your practice. In terms of written submissions, it’s really just a question of recognising that because expectations have risen, more work is required. When I say required, required to be done before getting into the Court room. That’s not just the oral advocacy, it’s about setting out very clearly what the basis for the case is and what the justifi cation for the orders or outcome you seek might be. I have to emphasise that when you start doing that it’s hard and you are not going to do it well or quickly. You just have to practice it. Doing it and doing it repeatedly helps you improve. You get to see how other people do it, you read the judgments that come down based on the arguments and you can see what works with the Judges and what doesn’t, but it’s really just about continuing to do it. You have to do it routinely and by doing it routinely you improve.

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AC: As you sit as the President of the Court of Appeal is there a difference skill set to appellant advocacy as opposed to Trial advocacy?

JL: Yes and no. Some of the basics are the same across the board. It doesn’t matter if you are putting an argument in the Magistrates Court or the Workers Compensation Tribunal or the Court of Appeal. The argument has got to be well thought through, well planned, wellstructured and clearly articulated.

What is very different is that with an appeal everything has happened and as Chief Justice Allsop said to me a while ago, working as an appeal judge is a little bit like working as a pathologist in a mortuary as you are picking over the corpse and working out what happened or should have happened. Whereas in a trial the trial judge is documenting things as a matter of history about what has happened, making factual findings. So, for example in a trial it’s necessary to give very clear thought to what findings you will need and what the reason is for making those findings might be. That’s the emphasis at trial. On appeal the findings are there and the question is whether they should have been made or open to be made. So it’s necessary to focus more on what the error may or may not have been and how that error can or cannot be corrected. Now that requires thinking about the case differently but using the same skills.

In both trials and on appeal, the advocate has to be flexible. They are both fairly dynamic processes. You are never going to know exactly what a witness will or won’t say. And likewise on appeal you are never going to quite know what each Judge is going to say. However with appeals Chief Justice Doyle explained that the process is in a sense easier for the advocate because there is only so much of the case that’s available to the parties and to the Court; it’s all in the appeal books. So you can read that and reread it and know it and then think about what the issues are that arise on those materials and thoroughly prepare, if not over prepare, on what those issues are before making decisions about how you are going to present the case, whether it be for the appellant or the respondent. Ultimately, despite those differences, I think the skill sets are largely similar.

AC: Since your time on the bench on the opposite side of the bar table have you picked up any particular attributes or nuances of the best advocates that appear before you?

JL: I think the skill set of the best advocates is largely common across the board and that is doing a lot of work to prepare the case so it is well known. The work goes into how to distil the essence of the case, and then being succinct and clear in Court. It’s very hard to be succinct and clear without a lot of effort.

The best advocates are the ones that make it look simple and easy because they have thought about it more than the advocates that haven’t done the work. When the well prepared advocates explain what the case is about from their perspective it comes across very easily because it’s been rehearsed. I don’t mean the lines have been rehearsed or that the submissions have been practised repetitively but the key concepts are very clear in the advocate’s mind, so that when a question comes, the answer seems to come more easily from the better prepared advocate. And, of course, the really top advocates seem to just be chatting to the Court rather than formally presenting because they are completely at ease with the subject matter and the topics and they are going straight to it. No one is wasting time by going to the basics of the case, that’s all assumed - that’s the point of the written work, to lay that out. The really top advocates go straight to the key points. They might only be addressing 3 points in the appeal.

AC: In your career in private practice both as a solicitor advocate and later at the Bar you were involved in lots of alternative dispute resolutions, such as mediations. With the increasing emphasis on alternative dispute resolution, do you think there is still a place for advocates with ADR and if so, in what way?

JL: I think it is critical. It’s very hard to have a mediation going well for the client if the advocate for the client hasn’t got to grips with the case and clearly understood the strengths of the case as well as its

risks. So understanding the strength of the case means that the opening statement will be short, concise but compelling, understanding the risks means that concessions can be made in private with the Mediator and the advocate has a very clear idea about where this case will end up if it gets litigated. That’s important because the client needs to understand what the likely outcome is going to be or what the range of outcomes might be. The contrast with that is where the advocate is not well prepared and simply mouthing what the client wants or mouthing in a superficial way the advantages of the case. That case is very hard to settle because the risks won’t be appreciated and the offers won’t be properly evaluated.

It really is all about clarity of thought and expression. If the case is being explained simply and clearly enough then that will be understood by the other side and by the mediator.

AC: With the distribution of COVID in the legal industry, the legal industry has had to adapt extremely quickly. How have advocates had to adapt if at all?

JL: In the Supreme Court we made a decision very early on that we would continue to keep sitting as much as possible. That meant that we had to adopt a number of new or slightly different practices. Fortunately, we have continued to sit with very few interruptions throughout the two year period. What that has meant is that telephone attendances have been used much more frequently. Video appearances are much more common than they used to be. I have just heard a matter as part of the general list which has gone over about two weeks where two of the parties have been appearing by telephone, the experts generally on video or telephone. That creates challenges because sometimes the technology is not up to the mark and for the advocate it’s much more important that all of the things I have mentioned are done, that the advocate really thinks through very clearly what the case is about and distils the essence of the case and is succinct. It’s very hard to talk to the point on the telephone or on video. It’s much harder to listen to so it’s even more important that good advocacy be used during COVID.

AC: Do you think these changes for advocates are here to stay?

JL: I think they are here to stay. I think people have changed their practices. Having said that, the Court of Appeal has never discouraged personal appearances, subject to all the proper protocols being observed. By that I mean social distancing and masks and so forth. But we have had a number of interstate barristers coming into Adelaide for appeals. Having said that we have a number of barristers not only interstate but also locally who are appearing by video where it’s necessary. I think we have just become more flexible and I think that will stay with us.

AC: Are you positive for the outlook of future advocates?

JL: I’m extremely positive and optimistic that there will always be a role for good advocates whether they are in firms or at the bar, because the Court will always value an advocate who is able to clearly articulate the client’s case and clearly articulate what the problems with the opponent’s case might be. That’s invaluable. It’s very hard to decide a case without good assistance from both sides of the bar table and even harder when there are multiple parties. The Court values that assistance, particularly when the advocate has been careful about how to articulate particular points, not being too broad about those points, supporting them by reference to the evidence or legal authority, demonstrating where the difficulties in the other case lie. That’s just critical and the better advocates do that. I see this being something that will stay with us. If anything, the use of the different media over the last two years has ensured that just because we don’t have the traditional trial or the traditional appeal with everyone in the same Courtroom, that doesn’t mean that hearings won’t continue. I think, if anything, that’s ensured the longevity of Court processes, whether they be trials or appeals.

The Advocacy Committee runs educational workshops for all practitioners to introduce and advance advocacy skills in the criminal and civil jurisdiction. B