This evening I returned from the 18th Annual Black Law Students Association National Conference in Halifax, N.S.
Although the conference was filled with interesting panels on various issues, including legal topics related to the long-standing black community in that province, a session on oral advocacy was of particular interest to me as a law student.
Oral advocacy is not something that can be purely taught in the classroom. It has to be practiced and refined, over and over again, which is why the previous day I had participated in the 2nd Annual Koskie Minsky LLP Diversity Moot. I’m pleased to share that I was awarded the Patricia DeGuire Cup as the top prize.
The session on oral advocacy was lead by Hon. Judge Castor H. Williams of the Provincial Court of Nova Scotia (Ret.), Arlene Huggins of Koskie Minsky LLP, and Mr. Perry Borden, a Crown Attorney with the Nova Scotia Public Prosecution Service.
The blend of professional backgrounds, which included the bench, private practice, and public service, helped create a rich and enlightening educational experience.
First Things First
The panel agreed that oral advocacy is the second step. The first is always the written because it’s the thing the court sees, and provides a general idea of what the arguement will be.
Written submissions should be well organized and concise.
They should also be properly formatted, because some courts will not even accept it if they do not follow established font sizes and margins.
Having separate folders for different files and being properly organized will also help someone else pick up your case if you cannot be present for whatever reason.
Time is Not Always on Your Side
Timing is also essential, both in preparation and arrival. Counsel should always arrive to court or an arbitration early so that they are well settled and not setting up when the judge enters.
Slow down if the judge is still writing, because it is important not to lose them.
Some courts will actually require you to indicate how long a motion will take, and will actually enforce these time limits.
In preparation for this, it is essential to know your case cold – the facts, legal arguments and case law – so that you can also maintain eye contact. Reading your materials to the court is not very persuasive.
Knowing the facts of the case inside out is also essential to making a persuasive case and distinguishing various cases by their facts. Litigation is 90% preparation, and 10% inspiration.
Johnny Cochrane once said to one of the panel members that the key to being a good lawyer was preparation, preparation, and preparation.
Be ready to deal with questions from the start, because some judges will ask you from the outset about problems they have identified in an argument. Anticipate these interruptions and build in the time accordingly.
Demeanor Even When They are Meaner
A respectful attitude should be maintained at all times. Speak to the court directly, and not to opposing counsel.
Treat opposing counsel respectfully though. Many people these days do not treat other legal professionals the way they should.
Respectful behaviour can also be a highly effective tactic, especially in cross-examination. A confrontational attitude will likely make a witness defensive and evasive.
If a lawyer is being too long-winded, or clothe their arguments in too much legal jargon, they can lose their audience and get them annoyed.
This Isn’t Television
Lawyers should be especially careful to pay attention when a judge is speaking, and avoid arguing. Sarcasm should not be used at all, despite what people might see on popular television sitcoms.
Stand when a judge enters, and bow when approaching the bench. The simple forms of respect can go a long way, but it’s surprising how many lawyers ignore these manners.
Chewing gum or eating food in court, which should be obvious to most lawyers, is unfortunately far too common.
Getting a Head Start in Law School
Although moot competitions like the one at the conference are a good preparation for advocacy, younger lawyers will make mistakes and have to learn from them when they start practicing. The important thing is to not be afraid to ask questions when you need to.
Some Semitic and African cultures pride themselves on oral traditions. Advocacy cannot be conveyed in 15 min. But the more you do it, the better you get at it.
These are soft skills that cannot be learned directly from any textbook, or in most class-rooms. Students interested in advocacy should get involved in it early, and seek out opportunities in the law school and beyond to get these experiences.
For my part, I’m joining a local Toastmasters tomorrow night to see if I can pick up any tips.