What is Advocacy?

Advocacy is the means by which a barrister puts their case to the court. It may be written or oral. Advocacy is a specialist skill, the quality and excellence of which distinguishes the Bar from other providers of legal services. It is in the interests of the public, the court and the profession that barristers present their cases to the highest possible standards.

Oral advocacy is primarily a performance skill. It requires the advocate to address the court persuasively and concisely, presenting a case in a manner that is clear, well organised and efficient.

Key advocacy skills include case analysis, the correct use of skeleton arguments, oral submissions, examination-in-chief and cross-examination, pleas in mitigation and legal submissions.

What are the standards of advocacy expected of barristers?

The Professional Statement for Barristers describes the knowledge, skills and attributes that all barristers will have on ‘day one’ of practice. For aspiring barristers, it allows them to understand the knowledge, skills and attributes that must be developed for them to finally qualify as a barrister. For practising barristers, it describes the essential knowledge, skills and attributes that they should expect of themselves and their peers.

The Professional Statement at 1.15 provides that a competent barrister will have persuasive oral advocacy skills:

They will be able to communicate their client’s case effectively. They will be able to deliver coherent, well-structured and concise submissions and cite legal authorities and materials appropriately. They will be able to engage appropriately with and maintain an awareness of others in any forum where they represent clients.

When delivering submissions and questioning witnesses, they will be able to communicate audibly, using both pace and language that are appropriate to the tribunal. They will be able to handle witnesses in accordance with the rules of the court. They will ask questions which assist the court, focus on the real issues in the case and avoid the irrelevant. They will listen to the answers and demonstrate appropriate conduct towards the witness.

Barristers should:

1. Thoroughly recall and comprehend and accurately apply to the matters they are dealing with the law and procedure relevant to advocacy
2. Apply effective analytical and evaluative skills to their work [1.5]
3. Identify strengths and weaknesses from different parties’ perspectives
4. Prepare how they will effectively communicate the argument
5. Manage facts to support the argument or position
6. Present orally a reasoned argument in a clear, logical, succinct and persuasive way
7. Use and cite legal authority appropriately
8. Comply with all relevant formalities
9. Recognise the role of different types of witness and use appropriate techniques for witness handling having particular regard to vulnerable witnesses
10. Listen and respond effectively to questions and opposing arguments
11. Deploy advocacy skills efficiently and effectively, in compliance with the Core Duties, so far as possible, notwithstanding that they may be required to act at short notice or under other legitimate pressure

As can be seen from 1.15(i), a competent barrister must recognise the role of different types of witness and use appropriate questioning techniques for witness handling, having particular regard to vulnerable people and children. The ICCA’s Course, Advocacy for Vulnerable People and Children has been specifically designed to ensure that advocates understand the key principles behind the approach to, and questioning of, vulnerable people in the justice system.