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Family advocacy: An art or a craft?

by June Venters QC
2 October 2019

Much has been written about the art of advocacy. The expression has been used in several book titles but is advocacy an art?

Are we misleading ourselves into believing that advocacy emanates from those few lawyers who have an innate ability to stand up in court and deliver; who’ve been born with the natural skills of a thespian; who can deliver an Oscar-winning performance because it comes naturally?

My view is that this is a mistake.

Whilst I’m the first to admit that advocacy is a performance and almost all advocates (including myself), if we’re honest, are either “budding, established or frustrated thespians”, advocacy is more than an art.

It’s also a craft. This is because it’s a skill; a learned ability, acquired by regular practice.

So, for the purposes of this article I’ll refer to advocacy, whether family, criminal or otherwise as both an art and a craft.

Last year I presented a seminar on family advocacy. I wanted to get the message across about the importance of preparation. To use a cliché, “failing to prepare is preparing to fail”.

Members of the public often imagine that those of us who appear in court have “short” days. After all, it rarely begins before 10.30am and often ends at 4.30pm.

However, what’s not always appreciated by the uninitiated is that for every hour spent in court, often it can have involved two- to four hours’ preparation (depending on the complexity of the case).

For the initiated, a well-prepared case is plainly obvious. It flows, there’s a sense of direction and less court time is necessary.

Try explaining that to the legal aid agency whose views on preparation and the remuneration for doing so bears no resemblance to the quality standard we should all be seeking to achieve.

The expression “a Rolls Royce service for the cost of a Lada” springs to mind”. Forgive me, as an advocate that’s the “thespian” coming out in me…

Now to turn to the serious part of this article: how to be an advocate in a family children’s proceedings case.

Let me take, as an example a care proceedings case:

Read the salient documents

  • Threshold document – you need to do this to know your case
  • Schedule of allegations and responses (if relevant to the case)
  • Local authority final evidence/care plan
  • Client’s statement/evidence/comments
  • Parties’ statements
  • Expert reports
  • Guardian’s analysis

Glance through chronology and make sure it’s accurate – this will be a good reference document during the case.

Identify the issues

What is the local authority seeking to prove?

What are you seeking to prove/challenge?

Dramatis personae

In cases involving a large number of witnesses, this is an invaluable document.

It’ll assist you and the judge to see at a glance the names and roles of each witness

Main elements of preparation

Consider the facts and the law

Make sure you’re up to date with the legal position that’s the framework for your presentation.

Analyse the evidence

My preference for voluminous cases is to prepare schedules for all relevant topics so you can identify the relevant facts and where to find them at a glance.

Protocol documentation

This includes:

  • case summary
  • chronology
  • statement of issues (opening note), prepared by applicant local authority
  • position statement/skeleton arguments prepared by all parties

Examination of witnesses

My preference is to prepare this in table form with headline topics, questions to be asked reference to court bundle and columns for response and comment.

Obviously, this will need to be kept under constant review throughout the trial as this may need to be reduced, increased or varied depending on the oral evidence that emerges, but it’s a starting point without which any advocate would struggle.

Always remember to adapt your style according to the needs of the case.

Very often, a combative style will cause a witness to retreat and you’ll achieve nothing. A phrase I keep in mind is “more bees with honey than vinegar.”

A gentle approach to a witness, even one you need to seriously challenge, can produce more than you could’ve hoped for!

Trial advocacy

Performance

Despite my views on advocates and thespians, family advocacy does not generally resemble the same theatre production as does criminal advocacy.

In the crown court, the audience is a jury of 12 men and women “good and true” as opposed to an experienced judge who’s probably more qualified than you, more knowledgeable and experienced in the type of case you’re presenting.

They’ll want you to cut to the chase.

Behaviour

Be punctual, courteous and well presented. Maintain eye contact, speak clearly and concisely and have good language skills.

Maintain self-control, have integrity and never mislead the court.

Professional conduct

Know and observe your professional conduct rules.

Examination of witnesses

Examination in chief

Unlike in a criminal case, most evidence is documentary.

Therefore, examination in chief should be succinct and only deal with inaccuracies in evidence or recent developments not included in the documentary evidence.

Do not ask leading questions.

Re-examination

The opportunity to “tidy up” your client’s evidence but remember it’s to only address matters asked in cross-examination – it isn’t an opportunity to introduce fresh evidence.

Cross-examination

Know where you’re going – what you’re seeking to elicit.

Ask yourself whether you need to ask a question – could it be adduced in another form? For example: agreed facts or a formal record, such as a medical record. Ask leading questions.

I can remember when I began my career reading a book in which David Napley had referred to the well-known saying that an advocate “should never ask a question to which he/she doesn’t know the answer”.

In an ideal world, I agree but the world isn’t ideal. Sometimes it’s necessary.

However, think carefully about the questions you want to ask and avoid asking the obvious.

Question: “How many post-mortems have you performed on a dead person?”

Answer: “Well, all of them.”

In front of a jury, this would be mildly amusing; in front of a family judge, less so!

The judge would probably reflect on the saying attributed to Abraham Lincoln: “Better to remain silent and be thought a fool than to speak and to remove all doubt!”

June Venters QC, solicitor and barrister