Devil’s Advocate

Learning advocacy can be a complex thing. I used to always say it was like watching Tiger Woods (at least, until his fall from grace) — when you see someone good at it, it looks really easy and effortless. Then when you try it, you’re all thumbs and fumbles.

Like any skill, practice is the best thing. But, the advocate’s role can be fairly solitary too. Few benches have the time to coach advocates before them — not to mention that in an adversarial environment, it’s not really appropriate for them to try! — and the opposition is usually keen to convince you your approach is all wrong, with varying degrees of politeness and enthusiasm!

So reading how other good advocates go about their job is often a good way to improve. I bought a few more advocacy books this year to add to my collection, including The Devil’s Advocate
by English barrister Iain Morley QC.

I really like it. It’s a more modern (and I think, relevant) read than Richard Du Cann’s The Art of the Advocate.

Iain Morley states his opinion on things clearly and forcefully — and then confidently makes the point in his opening pages that we won’t agree with everything you read, and that’s a good thing. (About the only thing I really disagree with is in his chapter on cross-examination. He states the rule made famous by Irving Younger of never asking a question you don’t know the answer to. True enough, he also starts with Younger’s caveats: it’s a rule for new and inexperienced advocates, and one that can be broken when you know you’re breaking it and you know why. But I still disagree with it. I like Max Perry’s approach on this in his book Hampel on Advocacy. Max divides questions and answers into three: those you will get, might or might not get, and definitely won’t get. They also correspond to some extent to how much damage an adverse answer may or may not do to your case. Definitely won’t get questions and answers are for puttage under the rule in Browne v Dunn. Will get questions and answers are generally ones that won’t hurt if an unexpected answer pops up, and will generally make the witness look shifty if they don’t provide. Might get questions and answers are the tricky ones, where a calculated risk can be taken depending on what’s at stake and if you know what you’re doing.)

The written and visual asyndeton style features throughout the book, and conveys a real sense of being crisp, direct and succinct — and Iain writes that he writes like he speaks when he teaches advocacy. I like it.

Here’s a couple of examples, posted with Iain’s permission.

Have a look at these pages on the quality of being irresistible. (Something we all probably aspire to, for various reasons and purposes…)

It’s not just what he writes that is good: it’s the way he sets it out too.

This last one is Iain’s suggestion for dealing with Brown v Dunne. I haven’t heard this suggestion before…but I like it. It quickly deals with the point without embarking on a pointless argument.