The Complete Guide to Persuasive Advocacy, 2nd Edition, 2018 (Reprint)

By Professor George Hampel AM QC, Justice Ann Ainslie-Wallace, Elizabeth Brimer and Randall Kune
Reviewed by Garry Williams

As Murray Gleeson AC QC (Chief Justice of Australia 1998-2008) says in the foreword to the first edition of the Advocacy Manual – The Complete Guide to Persuasive Advocacy:

“There can be a certain pleasure in watching an adversary alienate a potentially helpful witness, irritate a judge, or otherwise employ the arts by which some lawyers seem to snatch defeat from the jaws of victory.”

But while such schadenfreude may be momentarily satisfying (and we all know that it can be), winning against an opponent who is not quite up to the task is never as satisfying as doing so against competent counsel or, better yet, a very skilled adversary.

Which is why the Australian Advocacy Institute’s Advocacy Manual should be compulsory reading for anyone who practises as a litigator. Someone who reads it and applies what is within its pages will undoubtedly improve their advocacy skills.

I have to confess that I had never heard of the Advocacy Manual before I found an obscure reference to it on the internet. Given that I actively keep a lookout for books on the topic of advocacy and the first edition had been published in 2008 this surprised me.

This and the bold claim on the cover that it is “The Complete Guide to Persuasive Advocacy” made me want to track down a copy.

Could it really live up to the claim?

First, I checked whether it was in any of the major New Zealand law libraries. It isn’t.

Second, I checked Amazon. It wasn’t available there either.

Finally, I found it. It was available, of all places, from the Australian Advocacy Institute’s website. Doh!

I paid the purchase price of AU$198, together with the required postage and packaging fee of AU$40 (for an international order) and it arrived a few days later.

It is a black hardback volume consisting of 222 pages. It is divided into the following 13 sections:

1. The Ethics and Etiquette of Advocacy.
2. Preparation and Analysis.
3. Evidence in Action.
4. Opening Address.
5. Examination in Chief and Re-Examination.
6. Cross-Examination.
7. Argument.
8. Appellate Advocacy.
9. Plea in Mitigation.
10. Expert Evidence.
11. Written Advocacy.
12. Advocacy in Mediation.
13. Communication.

The work comprehensively outlines the fundamentals of advocacy and uses a fact pattern that is familiar to anyone who has done the NZLS Litigation Skills Course in the last 30 years to do so – DPP v Daniel Jones.

The purpose of including the fact pattern (which involves the prosecution of a bottle shop for knowingly supplying an alcoholic beverage to an intoxicated person – Walter Watkins) “is to provide illustrations and exercises in the skills and techniques of advocacy, and to do this in a practical way by examining [a] case as a whole”. The fact pattern is more complicated than that used in the NZLS Litigation Skills course but essentially it involves the same issues.

The work is a practical guide to the philosophy, performance and practice of good advocacy. Nevertheless, it recognises that while the necessary skills can be described, the learning process necessarily requires both demonstration of each skill and performance. It should not be overlooked that the Advocacy Manual is usually used as an adjunct to attending one of the AAI’s advocacy courses, but, while that is so, much is to be gained by just reading it.

The first section, The Ethics and Etiquette of Advocacy, contains a useful summary of the various duties an advocate owes to the court and his or her client. This summary is succinct but captures these important obligations in three pages of bullet points. The section also concisely sets out the important rules of etiquette.

Compliance with the rules of ethical conduct and etiquette is of fundamental importance and familiarity with the content of this section of the work will help to enhance an advocate’s confidence in and out of court and their standing in the profession.

The second section, Preparation and Analysis, states that there are four components of, or steps to preparation. These are said to be:

• Obtaining a thorough knowledge of the case materials;
• Acquiring knowledge of the current relevant law, evidence and procedure;
• Undertaking analysis to develop a case theory; and
• Performance preparation.

The parts of this section that relate to the characteristics of a good case theory and developing a case theory, while brief, contain some of the best advice that I’ve seen on these topics.

Having developed a theory of the case i.e. what you need to achieve in the case, the work then advises that good preparation requires you to prepare how you will achieve this. The authors suggest that this performance preparation is best approached by preparing the closing address first as “when prepared first, argument as to [the] facts and law, based on your case theory, will give you the direction needed for the other steps in the trial”. Such a draft closing address will serve “as a guide to what needs to be done in order to support your case theory…. This is like an architect preparing final plans before the building starts”.

Section 3, Evidence in Action, covers such topics as relevance, hearsay, identification, character evidence, arguing for or against the admissibility of evidence on a voir dire, making and answering objections during a trial, dealing with a hostile witness, impeachment, and the rules in Browne v Dunn and Jones v Dunkel. All good stuff, covered succinctly but in such a way that the crucial aspects of each topic are developed sufficiently.

Sections 4-6 deal respectively with the topics of Opening Address, Examination in Chief and Re-Examination and Cross-Examination. Again, each of these sections deals with these topics comprehensively.

Sections 7-8 cover Argument and Appellate Advocacy. Both are essential reading.

The section on Argument focuses on the essential requirements of persuasive argument and breaks this down into the need for logical structure and reasoning; credibility (both of the argument and the arguer); and pathos (empathy). This last requirement is elusive but appears to be the achievement of mutual understanding with the decision-maker.

The need for effective presentation is also stressed and a list of techniques is provided which can help to achieve this aspect of argument.

The description of the characteristics of a persuasive appellate argument found in the section entitled Appellate Advocacy is particularly valuable. So too is the material in this section that relates to structuring oral arguments on appeal. The topics of dealing with questions from the Bench and communication are also covered.

There isn’t space in a book review of this length to outline the content of the remaining sections in detail. It suffices to say, however, that they well worth perusing and digesting.

So, is the Advocacy Manual “The Complete Guide to Persuasive Advocacy”?

In short, “Yes, it is” and, if you don’t believe me, here is a taste of what some other reviewers have said about this work:

Michael McHugh, former Justice of the High Court of Australia (1989-2005):

“This is the most valuable work that will repay reading and re-reading by even the most experience advocate. It should be on the shelves in every advocate’s law library. I would not only adopt the statement in the foreword by the Hon Murray Gleeson AC QC, one of the greatest advocates that the Australian profession has produced, commending “this valuable work to all aspiring legal advocates”, I would also commend it to the experienced legal advocate.”

John Doyle, former Chief Justice of the Supreme Court of South Australia (1995-2012):

“A practitioner who absorbs and applies the teaching found in this manual can be confident that he or she will be an effective advocate.”

Christopher Steytler, former President of the Western Australian Court of Appeal (2005-2009):

“This is not a book to be put away. Every barrister should keep a copy handy at every stage of the litigation process.”

ISBN: 9780646494418, 2018, Hardback, 222 pages.

Garry Williams williams@richmondchambers.co.nz is a barrister in Auckland’s Richmond Chambers and a member of the NZBA Training and Diversity Committees.