October 2015 Māori Law Review

Being an effective advocate – practical tips for appeal and trial work – Judge Jan Marie Doogue

Hui-a-Tau Conference 2015 - Te Hunga Roia Māori o Aotearoa

Judge Jan Marie Doogue, Chief District Court Judge

5 September 2015

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its annual conference at Waitangi in September 2015. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper is by the Chief District Court Judge, Her Honour Judge Jan Marie Doogue.

Being an effective advocate - practical tips for appeal and trial work

Introduction

Nei ra te mihi ki a koutou kua huihui mai nei

Me mihi ka tika ki a Apirana Mahuika - he pou tokomanawa o te kaupapa nei

No reira, tēnā koutou, tēnā koutou

Tēnā tātou katoa

The focus of my presentation today will be the importance of simplicity.

But before I begin, I would like to share a short story. It is of an enthusiastic young lawyer preparing for his first ever criminal trial.

This lawyer had recently left a large corporate law firm in Wellington, and was instead focusing his practice in Rotorua.

The defended hearing related to a dangerous driving charge. The lawyer carefully prepared his submissions in advance.  After the Police presented their case, the junior defence lawyer informed the court that he would be calling evidence and launched into a meticulously crafted opening address. He left no stone unturned and was clearly familiar with every facet of legislation and precedent. He thought his submissions were going rather well, until his Honour Judge Monaghan peered down from the Bench – literally a one-eyed judge – and told him “counsel, here in the provinces we aren't all little Perry Masons. Get on with it.”

That junior defence lawyer is now himself a District Court Judge. Rather embarrassingly for him, his future wife happened to be sitting in the back of the Court and will never let him forget the experience.  The error that this young lawyer committed – of failing to abide by simplicity and brevity – is one of the easiest ways for an advocate to lose the attention of a judge and establish an unfavourable reputation.

I am aware that there is a certain irony in taking 15 minutes to explain the importance of simplicity. I will therefore try to be succinct. I want to emphasise the importance of simplicity in three contexts:

  1. Logical simplicity – the theory of the case;
  2. Linguistic simplicity – written and oral language; and
  3. Procedural simplicity – familiarity with the particulars of the relevant procedural statutes and rules.

Logical simplicity: theory of the case

So first, logical simplicity.

In any given week, a District Court Judge will have a large number of cases to deal with.  Each of those cases will have their own facts, relevant statutes and internal logic. In this context, there is nothing more appealing to a judge than a succinct theory of a case.

The theory of a case is a story.  But by story, I do not mean a Booker Prize winning novel. I mean the kind of story that you might read to a young child, or to amuse your half-interested colleagues around the water-cooler: the kind of story that can be quickly grasped and easily followed.

The hallmark of these stories is their simple logic. There is one, straightforward narrative which can easily be summarised.  The logic is consistent throughout the story, which relies on the identification of- at most – a handful of issues and plotlines.  If I were to ask the narrator of such a story “could you summarise that in a few short sentences,” they would be able to with ease. This is what distinguishes Little Red Riding Hood from War and Peace, and it is what distinguishes an effective  theory of a case from a convoluted one.

There is nothing more frustrating for a judge than to have to spend a significant proportion of a hearing trying to distil an advocate's case for them. You should not assume that the Judge has a thorough understanding of your client's background. As Justice Glazebrook puts it, “They are coming to it fresh. They are busy and have other cases.”[1]

It is all very well to have a succinct theory of case. But it is also important that your submissions actually reflect this. When writing or delivering submissions, it is easy to get sidetracked by arguments you find intellectually interesting, or correctly identified but inconsequential deficiencies in your opponent's case. I know that it can be difficult to cull these personally satisfying arguments. Effective submissions, however, will exclude these arguments, instead concentrating fire on the simple logic of your theory.

Your role in your submissions is to convey your theory of case to a Judge. Failure to do so will jeopardise your client's position. I cannot put it better than Sackville J of the Federal Court of Australia, who summarised the role of the advocate as being:[2]

[T]o make it easy for the decision-maker to understand what issues need to be resolved and to explain clearly, cogently and concisely how and why the crucial issues should be resolved in favour of a particular party.

... This ... is not because any Judge would consciously penalise a party by reason of the bulk of its submissions ... it is because the cogency and persuasiveness of submissions depends on the ability of the Judge to follow them and to isolate the critical legal and factual issues upon which a case is likely to run.

Time is precious.

This is particularly true in high-volume courts, such as the District Courts, where almost 200,000 cases are heard annually. Time is precious, and you will not earn a positive reputation on the Bench by taking up more time than scheduled: If your hearing runs over time, it will encroach on someone else's day in court. Setting out a clear theory of the case from the beginning of the hearing will make it easier for the judge to grasp your argument, and make the whole process both more efficient and effective.

Linguistic simplicity: written and oral language

I now want to distinguish between two types of simplicity: logical and linguistic. When developing a theory of the case, the focus should be on logical brevity: how to convey the logic of your "story" as simply as possible. The best advocates are adept at combining this logical simplicity with linguistic simplicity. Not only should the content of the story be simple, but so too should the language through which it is conveyed.

An average advocate may successfully master one form of simplicity, or the other. An outstanding advocate is one who can master both forms.

As legal practitioners, words are really all we have. Each word must therefore be meticulously selected. A good advocate will ask of each word: "what is its purpose? How will this best persuade the judge?"

As the story with which I opened my presentation today suggests, us District Court Judges are not looking for glittering written prose or soaring oratory. We are quite content with the bare information that will help us arrive at a conclusion. As Justice Scalia of the United States Supreme Court put it:[3]

Avoid pretentious expressions. You're trying to get judges to understand a case, not to impress them with your erudition. Your job is to make a complex case simple, not to make a simple case sound complex. The end is best achieved by clear thoughts simply expressed.

Keep this in mind whenever you are preparing written or oral material for a Judge. A Judge at the end of a long day in the Family Court is going to find a half-hour meditation on the legislative history of a particular provision of the Property (Relationships) Act 1976 somewhat tiresome.

A few specific recommendations can be made here:

  • If you are not sure whether to include a word, paragraph or sentence, put yourself in the shoes of the judge, or even opposing counsel. Ask yourself whether the words will really make a difference or threaten the opposing case.
  • Where there is a simpler synonym for a complex word, use it. A Judge is going to be more impressed by an easily understandable case than your use of a thesaurus.
  • Avoid jargon and legalese. Do not assume that a Judge is fluent in Latin, and use it only when absolutely necessary.
  • Make sure that precedents are cited only when relevant. Including unnecessary footnotes simply means more work for a Judge, not that you are a smarter advocate.
  • As Justice Glazebrook has said, "the maximum  page rule is a limit and not a target"[4] Having said that, when you are making written submissions, do not be satisfied because you are just within the limit. If you can be more succinct, do so. The same is true of oral advocacy: do not be satisfied simply because you are just within  your allotted time.

Procedural simplicity: compliance

Finally, I come to one of the less glamorous features of advocacy: procedural compliance.  Modern courts are difficult institutions to keep on track. They involve a myriad of different administrative processes: filing; sentencing; collections and fees; bail; rostering; scheduling; costs ... the list goes on. If process is not followed, cases will be lost in the system and many cases will not have their day in court.

As Justice Beazley, the President of the New South Wales Court of Appeal, has noted:[5]

[there are]  fiscal implications for  Courts in having litigation before it which limps along in a mire of inefficiency ... litigation is process-driven and advocates must have an eye to the central purpose of the process.

As a former advocate, I know how onerous procedural compliance can be. But if advocates do not comply with the letter of the law, the Judge has to do the job for them.  And as a Judge, I can tell you that you do not want to be an advocate in that situation.

Failure to know the relevant rules leads to one of two outcomes. The first outcome is that the hearing is delayed while the Judge consults a text or research staff. The second possible outcome is that in the absence of assistance from counsel, the District Court Judge errs and the case is protracted through an appeals process. Neither outcome is desirable.

Make sure you understand the rules under which you are operating: in the case of the District Courts, the Criminal Procedure Rules 2012; the Family Courts Rules 2002; or the civil District Court Rules 2014. Know under what circumstances each of those rules apply. Be in a position to be able to assist the Judge, and never assume that the Judge knows the relevant rules chapter and verse:

A better understanding of the rules is likely to work in your client's favour. It is hard to argue for an exemption or leniency if you are unfamiliar with the rules, or are routinely careless in following them.  A clear and concise understanding of the relevant rules is a hallmark of a good advocate.

Conclusion

I hope what I have said today has been of practical value. If there is anything you take home from this presentation, it is this: simplicity is the key to great advocacy. You will not win over a Judge through an intricate case theory; dazzling speech or cunning procedural loophole: you will be far more effective by setting out a simple theory; using simple language; and through simple and methodical application of the relevant rules.

No reira tēnā ra koutou katoa.

Notes

[1]           Justice Susan Glazebrook “Effective written submissions” (paper presented to New Zealand Bar Association Appellate Advocacy Workshop, Queenstown, September 2014) at 2.

[2]           Written communication from Sackville J in the case of Seven Network  Ltd v News Ltd [2007] FCA 1062.

[3]           Antonin Scalia and Bryan A Gardiner Making Your Case: The Art of Persuading Judges (Thomson/West, St Paul MN, 2008) at 182.

[4]           Glazebrook, above n 1, at 9.

[5]           Margaret Beazley “Advocacy: A view from the bench” (Winning Advocacy Techniques, Sydney 2013) at 6.