“In many ways a trial, like skydiving, is not inherently difficult; however both can be terribly unforgiving of the slightest inattention.”
“Courting Justice”, David Boies (Hyperion -Miramax 2008)
Referral advocacy is a model by which court advocacy is undertaken by a specialist bar to whom other lawyers refer as needed.
Lawyers who refer to specialist advocates lose the headaches of trial work, the havoc it wreaks on a practice, and the responsibility for an unfavourable outcome. Yet they gain the ability to offer their client specialist advocacy services at more predictable cost, and the client’s gratitude when the outcome is favourable.
There is no risk that the referring lawyer will lose the client: the referred advocate will only accept a retainer to provide advocacy services. All other litigation services remain within the broader retainer of the referring lawyer.
Referral advocacy also resolves a conflict that is generally not articulated in civil litigation. If the message in the above quotation is accurate, and given its source it should be, the less experience a lawyer has with trials (or other contentious steps in which rights are finally determined), the less comfortable he or she will be with them, and the more inclined to avoid the step because of the significant prejudice resulting from a negative outcome. This compromises negotiating strength. Referral to a lawyer who specializes in court advocacy may not guarantee victory, but it certainly relieves the negotiating lawyer of pressure. It can also strategically intimidate an opponent.
“An understanding of the trial process is the unique skill of the trial lawyer and that skill is derived from the courtroom.”
(Advocates Society Task Force on Advocacy, June 2004)
There are also cost benefits to referral advocacy. Specialist advocates need less back-office overhead. They take less time performing the task because of their specialization.
And then there is the question of incentive: a referred advocate feels only as good as their last case. Their business is repeat referrals.
The Canadian legal profession has taken to specialization with alacrity in most areas, but not when it comes to court advocacy.
What is the reason? Is it that historically we have always qualified our lawyers both as solicitors and barristers, so the referral model is not within our repertoire? Is it that we doubt specialization means better results, or better chances?
In these days of dwindling trial experience, is it time to consider referral advocacy?