ABA's Advanced Trial Advocacy Course

Fiona Guy Kidd KC*

The New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture has worked with the Australian Bar Association in developing the NZBA Mastering Advocacy courses. We have the same structure for our courses, with a ratio of 1 coach to 2 participants to increase learning opportunities. In New Zealand we include training on creating and using electronic casebooks as part of our programme, to help practitioners with a real world experience. We share coaches between the jurisdictions to enable sharing of ideas and learning teaching techniques. The NZBA paid for King's Counsel Fiona Guy-Kidd to attend a recent course in Sydney. This is her report of the experience.

I was delighted to be the New Zealand coach selected to attend the Australian Bar Association Advanced Trial Advocacy Course held in Sydney in the last week of January 2023. I thank the New Zealand Bar Association for funding my flights and transport to the course.

The Advanced Trial Advocacy Course is a five day course which has a criminal and a civil stream. Each stream was split into smaller groups of 3 – 6 people. I was the group coach/mentor for a group of four barristers from South Australia, Singapore, Northern Territory and Hong Kong. There were two groups in the criminal stream and five in the civil stream. It was nice to see four Kiwis amongst those in the civil stream. There was representation amongst the barrister participants from all States and Territories in Australia as well as from Singapore and Hong Kong. There were 20 coaches from all over Australia as well as Penny Bosman from South Africa, Alex De Silva from Malaysia and Bibi Badejo (of The Advocacy Podcast) from the United Kingdom. The Honourable Michael Corboy SC (retiring Justice of the Supreme Court of Western Australia) and The Honourable Penelope Wass SC of the District Court of New South Wales led the coaches who were very senior with 14 King's Counsel or Senior Counsel included.

The low student to coach ratio was noticeable.

The Programme Director was the affable Todd Alexis SC with the course overseen by Ian Robertson SC, the chair of the Australian Training Council of the Australian Bar Association. Both streams had fact patterns based on real cases. The criminal fact pattern was a humdinger alleging a conspiracy to murder by two prisoners in relation to a sitting judge, her husband and a policeman. It involved intercepted prison phone calls and a prisoner prosecution witness who had much to gain from giving evidence. There were issues as to the fitness to stand trial of one defendant and expert psychological evidence around that. It was estimated that coaches and participants would need at least three days to prepare for the course.

Participants attended a discussion or lecture on an advocacy skill followed by a performance of the skill by coaches and would then perform the skill themselves subject to feedback from the in-court coach. The structure of the coach’s comments was to be:

a. a clear statement of what his or her major comment is;

b. a relevant illustration of what the barrister did;

c. an explanation of why it is important/beneficial to change that conduct/why it doesn’t work;

d. an explanation of how it might be done; and

e. a demonstration.

Faculty at the ABA's Advanced Trial Advocacy Course

The in-court coach’s demonstration was to show how the barrister could have done that performance differently/better and was to be focused and short in duration so that the barrister clearly took home the message of how it could be done. The barrister would then meet individually with a review coach who would watch the recording of the performance. There was a focus on ensuring that the environment was supportive of barrister participants. For this reason coaches would step down from a judging position and sit alongside the participant to give their performance assessment.

There were two features which I thought were fantastic and set this course apart from others I have attended. The first was that sessions were scheduled for the participants with their witnesses for briefing. This happened both in respect to a civilian witness and an expert witness (who was in fact an expert). These sessions were observed by the coach and feedback given. These were really valuable. They allowed the participants to practice what to say to a civilian witness and the type of questions that they might have and how such an opportunity can be used to its full potential. This was very evident when dealing with the expert witnesses where it allowed the participants to ask questions so that they fully understood the evidence of the expert and therefore could lead their own witness to best effect. It also allowed them to explore the weaknesses in both their own expert’s evidence and in the other side’s evidence.

The second distinctive feature of this programme were the performance coaches. There were three performance coaches who were there to aid participants in relation to persuasive communication. They gave a lecture/presentation but then were on hand to watch barristers undertaking their in-court performances and to spend time in private with each participant to support and develop their persuasive voices. This was a unique opportunity for the participants and some coaches alike.

The Trial Advocacy Course featured lovely dinners for coaches and participants each night in central Sydney restaurants which are included in the course fee. There was wonderful collegiality amongst everyone.

Sadly my experience of the Advanced Trial Advocacy Course was cut short at the end of day three of five when I became unwell and then started to self-isolate before testing positive for Covid on day five of the course. My room had a sliver of a view of the Sydney Harbour Bridge where I spent the rest of my time in Sydney. From the photos I received it appeared that everyone enjoyed their final celebratory dinner at District Brasserie after the final trial performances.

The whole course was conducted in the Federal Courts which are part of the Law Courts complex in a high central tower block which had fantastic views over the city.

I would encourage barristers of all levels to consider participating in one of the ABA’s trial advocacy courses. The next course the ABA is running is the Essential Trial Advocacy Course in Perth from the 10th – 14th of July 2023.

Fiona Guy Kidd KC