In the latest instalment of a continuing series, we offer advice on the issues that face solicitor-advocates


Q I've done it - I've been awarded my higher rights. How can I continue to improve my advocacy?



A Unfortunately, the old cliché of 'practice, practice, practice' will not necessarily be enough to cut it. If you have got bad habits, poor technique or questionable judgement, unless a fellow advocate takes you to task you could easily carry on for some time completely oblivious of your inadequacies. Yet if you have the dedication to get your higher rights, you undoubtedly want to do a good job when exercising them - and practicing will be key to this but it is not sufficient by itself, especially if it is not focused.



What are your options? There are both theoretical and practical steps you can take.



Two texts that are indispensable reads and ought to be a first step on the path to improved ability are: Richard Du Cann's The Art of the Advocate and Francis Wellman's The Art of Cross-Examination. These provide a lot of theory and several ideas to try out. Alternatively, there are now some videotapes primarily focused on advocacy.



Assuming you take one of these courses of action, the next step is not simply to try out what they suggest in court but instead to try the following step.


Answer this question truthfully: how do you appear to the listener when you are addressing the court or asking questions of a witness? If you do not know, then you may already be losing out on some of your persuasive ability, as judges and juries will be watching you carefully and picking up on your body language and your behaviour just as much as they will do of any witness. People listen with their eyes - try listening to someone with your eyes closed and you will realise how many visual 'tells' we unconsciously take into account when deciphering what the speaker is attempting to convey.


Do not be fooled into thinking that communication is a simple process. First you encode the information that you send to the other party, which must then receive and decode it before encoding a response. Therefore, there are plenty of places for communication to break down.


Try asking questions or making a speech in front of a mirror or, if possible, to a video camera. It may sound simple (or even stupid) but it is incredible what you can pick up. For example, one new advocate tried this and discovered that he seemed to be gently rocking from side to side. He had no idea he was doing this and had to get out of the habit before making tribunals seasick.


Once you have picked up on some issues yourself, get together with colleagues and run through an exercise of leading them through their evidence-in-chief, or subjecting them to cross-examination. After all, in today's climate, whatever legal sphere you work in, the chances of your colleagues having to give evidence in some form of proceeding is becoming ever more likely.


Try out questioning techniques on them and have those observing comment on your questions as well as the witness's answers. It is best in this situation not to try to list every conceivable failing, but for the people giving feedback just to focus on one or two points for you to try to tackle. Marshall Halls are not made overnight, so do not beat yourself up if you do make inevitable errors - far better in this setting than in court.


Now we come to being in court. This is the moment when you need both to concentrate and to be courageous if you want your advocacy to get better. You will come across some astounding advocates, a lot of mediocre advocates and some downright poor specimens to observe. So do just that - watch and learn.


Listen to what they say, how they say it and see how judges respond to them. If you do not understand the reason why an advocate took a certain approach and that approach achieves a successful outcome, ask them why they did what they did. Equally, when you have been on your feet making your case, never be afraid afterwards to ask your opponent, or other advocates who were present in court, what they thought of your submissions.


In the main, people will be generous and appreciate that you are interested in their opinions - just remember, though, some individuals can never say when someone else has done a good job. Also, watching a poor advocate can often be even more instructive than observing a superb one. One criminal advocate once used the phrase 'and it is right to say' 25 times in the course of a ten-minute speech in mitigation - talk about needing a 'crutch' to get through and to string points together.


In terms of an immediate practical step to help improve advocacy, here is a simple tip - always write out, in general terms, what your closing speech/submission is going to be before preparing your questions. It helps to know the final destination you hope to reach to know what you need from each witness either in evidence-in-chief or in cross-examination. Remember, it is not about the court getting to see your brilliance, your flair, your wit - it is about convincing the court of your client's case so that the tribunal decides in your favour.


You have got to have the conclusion in sight at all times to bring the power of persuasion to bear on the tribunal, because when all is said and done it is never your opinion that matters, only the court's.


This column was prepared by the Solicitors Association of Higher Court Advocates.


For details of SAHCA, membership enquiries or advocacy questions, contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, or e-mail: hilary@hradmin.co.uk