What is Advocacy?

December is a time for reflection. Law classes are over and marking begins in earnest. It also a time of anticipation as I ready myself for the University of Calgary, Faculty of Law Advocacy “block” weeks starting the first week in January. This is a compulsory program for the 3Ls, which originally was taught over the course of an intensive week to introduce students to fundamental trial skills. Two years ago, I was approached by Alice Woolley, the then Associate Dean, to take on the program as part of the faculty’s curriculum renewal involving the integration of experiential learning and performance-based studies into the regular law school offerings. The advocacy program was already just that - hands on and practice orientated - but it needed something else to make it unique and to make it the capstone course for the new curriculum.

To do this, we placed those fundamental skills in the context of a real trial scenario. In the past, at the end of the block week, the students would present their case before a “trial judge.” The focus then was not on the trial itself but on the presentation of the trial skills. After the course revision, the trial became more than the vessel for the skills, it became the culmination of those skills. Instead of the students performing in court, they interacted with the case in a meaningful way. They learned to appreciate the effort required to take on a complex file for a client. They began to recognize that being a lawyer does not entail simply getting up on your feet and performing. Rather, the students understood that being an effective lawyer involved connecting the fundamental skills with legal knowledge, common sense and ethical obligations of the profession. They realized that the skills themselves are but a piece of the trial puzzle.

I like to think the advocacy course is not about advocacy skills but is about being a skilled advocate. This concept is best explained by Justices Cory, Iacobucci, and Bastarache in R v Rose. The issue in the case involved the timing of a jury address in a criminal case. Pursuant to s. 651 of the Criminal Code, the defence, if they chose to lead evidence, would be required to address the jury first. In the case of Rose, the Crown, who addressed the jury last, impugned the accused’s credibility leaving the defence unable to respond to the allegation. On Rose’s appeal against conviction for second degree murder, the defence argued the jury address requirement under s. 651 infringed section 7 as it denied the accused’s right to make full answer and defence.  The SCC was split 5 to 4 on the decision with Cory, Iacobucci, Bastarache JJ writing the slim majority decision (although Gonthier J concurred with them, Madame Justice L’Heureux-Dube wrote her own concurring judgment) made the following general comments on advocacy in paragraph 108:

“Skilful advocacy involves taking the information acquired as a result of the trial ‑‑ the evidence, the other party’s theory of the case, and various other, intangible factors ‑‑ and weaving this information together with law, logic, and rhetoric into a persuasive argument.”

The trio acknowledged the role of persuasive advocacy in a jury trial, but in their view, addressing the jury last would not give the accused a persuasive advantage.

Although, it is the sentiment of the court in this above quoted sentence, which rings true to me and frames my approach to the advocacy course, I would be remiss if I didn’t refer to the dissent decision in Rose authored by Justice Binnie on behalf of Lamer CJC, McLachlin J and Major J. The dissent also refers to the “skillful advocate,” but in their view, skillful persuasion can mean the difference between guilt and innocence. Justice Binnie explains this position in paragraphs 18 and 19:

18 While it would be comforting to think that in a criminal trial facts speak for themselves, the reality is that “facts” emerge from evidence that is given shape by sometimes skilful advocacy into a coherent and compelling prosecution. The successful prosecutor downplays or disclaims the craftsmanship involved in shaping the story.  Such modesty should be treated with scepticism. The rules of “prosecutorial” advocacy have not changed much since Shakespeare put a “just the facts” speech in the mouth of Mark Antony:

 

For I have neither wit, nor words, nor worth,

Action, nor utterance, nor the power of speech

To stir men’s blood; I only speak right on.

I tell you that which you yourselves do know,

Show you sweet Cæsar’s wounds, poor poor dumb mouths,

And bid them speak for me.

 

Julius Cæsar, Act III, Scene ii.

19 While few counsel would claim Shakespearean powers of persuasion, the fact remains that in an age burdened with “spin doctors” it should be unnecessary to belabour the point that the same underlying facts can be used to create very different impressions depending on the advocacy skills of counsel.  In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”.  As was pointed out by the late Justice John Sopinka, in “The Many Faces of Advocacy”, in [1990] Advocates’ Soc. J., 3, at p. 7:

Notwithstanding that your witnesses may have been reticent and forgetful, and your cross-examinations less than scintillating, the case can still be won in final argument.

Certainly, there is a difference of opinion in the power of persuasion. Yet, I believe both the majority and the dissent are right about the importance of a skillful advocate at trial.

The quote from Shakespeare (as an aside read my previous posting on the use of verse in court decisions – Poetic Justice) leads me even further back in time to find support for the skillful advocate. Socrates, famous for his unapologetic jury address and his wit, employs persuasion in both senses as described in the Rose decision, albeit ultimately to no avail. The ancient Greeks and Romans were of course the masters of rhetoric. Although some may question their form over content approach, it is useful to recall Quintilian, the Roman rhetorician, offering advice to the new orator. In book 3.5 of the Orators Education, Quintilian suggests there are three aims of the orator: to instruct (docet), to move (moveat) and to delight (delectrat).  Cicero, who is Ancient Rome’s best known orator, left many examples of his skillful advocacy in his writings on oratory. Although his advice, to the modern reader may appear at times contrived and overly formalistic, his emphasis on invention, preparation, and strategy is still relevant today. Hortensia, also an admired Roman orator, further enhanced the ancient art of advocacy by imbuing it with a sense of social justice.  

Yet, there is no need to go so far back in time to find examples of great advocacy: Queen Elizabeth I and her rousing Tilbury speech, the deliberate yet inspirational speeches of Abraham Lincoln, Clarence Darrow’s home spun ingenuity, the fictional flare of Atticus Finch, the legendary appellate lawyering of J.J. Robinette, the written advocacy of Madame Justice Wilson, the consummate advocate G. Arthur Martin, and of course, the courtroom “pugilist” Eddie Greenspan. These are just a few of those skillful advocates who can inspire us to think beyond what is possible and be humbled by the power of persuasion.

What is advocacy? It is a mixture of knowledge, preparation, and persuasion. It requires a clarity of thought and a need to have the courage of your convictions. It requires vision, professionalism and passion. This is what I hope our new law school graduates will achieve in January 2017.