If there is one thing I enjoy more than advocacy books written by well known barristers, attorneys and lawyers, it is reading advocacy advice and anecdotes by accomplished, well-regarded, and great judges. But judges are not in the habit of writing advocacy books as lawyers do, and yet their views on advocacy are important because they are the primary ‘consumers’ of courtroom advocacy. So, it is to their speeches that we have to look to for guidance and ideas.
The advice I am particularly interested in are those that get us lawyers out of a difficult situation.
I came across several in a speech by Lord Igor Judge, the former Lord Chief Justice of England and Wales, for his Singapore Academy of Law Annual Lecture 2012 titled “The Art of Advocacy” (2013) 25 SAcLJ 1. It is a delightful read in its entirety. I highly recommend it. The advice that I want to share has to do with those times when the panel of judges are firing away questions at us but giving us no meaningful opportunity for us to respond. Justice Igor Judge’s advice about this situation appears at paragraphs 39 and 40 of his speech, which I reproduce below:
“Let me now come to a different approach in our Court of Appeal Criminal Division. This is a story from England. It was told to me by the Lord Justice of Appeal who was presiding in a very busy court on a very busy day when things had taken a long time, and the court was in a hurry to complete its list. And, in truth, it was rather a hopeless appeal against sentence. A young counsel stood up, and within minutes – I am sure your judges don’t do this in Singapore, but in England I am afraid we do – the court was intervening, interrupting, “Oh, what about so and so. Have you thought about this? have you thought about that? Well, why not? Three bags full.” On and on they went at counsel, and suddenly again the way it happens in England, but of course, not here in Singapore, they all had to pause for breath. So they did. The counsel said quietly, but firmly, “My Lords, I know I am not going to get this aeroplane of the runaway, but could you at least allow me to drive it out of the hangar?”
“Sublime advocacy. It stopped the court in its tracks. it made the court listen. And the Lord Justice involved told me, “He was marvellous, he never did get his plane off the runaway, because there was nothing in his case, but it was marvellous.” The court was put in his place, and the advocate was serving the interests of his client. He behaved courteously, firmly, respectfully, and with mutual respect the court recognised that he was right and they were wrong, and from that moment on, treated him with the respect to which he was entitled.”
When I read that, I fervently wished we had more judges that possessed such an attitude – humble, respectful, and confident enough to concede their mistake and stand corrected. And when I thought about my learned brethren and sistren soon after, I quickly extended that wish for my fellow lawyers too (and in case you were wondering, I did wish the same for myself three).
More to the point, here was a lesson from this great judge we can learn from and adapt for our local conditions.
But instead of using the plane metaphor, perhaps we should choose a metaphor closer to home and better accord to the local mind and tastes. For example, when faced with a similar situation we could try something like this, “My Ladies, I know I am not going to get this nasi lemak bungkus served, but could I at least unwrap the leaves and newspapers for my Ladies first?” or “My Lords, I know you are not impressed with my durians, but may I at least open a few of them so your Lordships can see whether your impressions are justified?” The metaphorical possibilities are endless.
Those examples of mine are terrible.
I feel certain you could do better.
And be sure to read any speech by a judge which has the word ‘advocacy’ in its title; it is often an indication there are gems to be discovered and unearthed.