Advocacy is an art. It cannot be taught or read from any book. It has to be cultivated by keen observation. There existed a system wherein a newly enrolled lawyer joined the chambers of a senior and from then on virtually lived life like in a Gurukulam under the guidance and mentorship of his senior. A lot of traits for good advocacy were imbibed from the office that he or she joined as a junior. When a junior lawyer stands before a Court, his or her pedigree was traced from the office from which he or she came. A junior advocate used to have the advantage of picking up skills of advocacy by closely observing their senior and many other seniors (on the advice of their senior) when they argued in courts. These traits, combined with the individual skill of the junior advocate, paved way for their fruition into a fully blossomed lawyer. This trait can be acquired only by experience and therefore, it is only natural that it takes a long number of years to acquire it.
The next question would be "why should this even be discussed and written about, if it is an acquired skill?". This necessity has arisen since the senior-junior relationship seems to be slowly on the verge of its death. Law practice is taking a different shape and we have entered an era of junior advocates entering into law firms and starting their practice. Some even feel that they can start practice on their own, from day one. There is a real urgency for the Bar Council to take stock of the situation and re-introduce compulsory internship or experience as a Junior Counsel/Associate with some office for a minimum period of time, as a pre-requirement for starting their independent practice. It is very important to instill this all-important trait of "advocacy" in the minds of junior advocates whenever we get a chance, since the sources from which they acquired this skill are slowly closing down.
As a judge, I watch young advocates who are otherwise smart and sharp, lacking in advocacy. Many of them seem to have an impression that their bookish knowledge on law and oratorical skills are more than enough to start their independent practice and appear before courts. They seem to be missing a fundamental fact : that the judge is after all a "Human Being". This subject has been on my mind for quite some time, and the time provided by COVID-19, impelled me to write my thoughts on this trait- "Advocacy". I will stand vindicated even if one junior Advocate benefits out of this exercise.
Bruce Lee was once asked for his description of Kung Fu his famed reply was "It is an art of fighting without fighting". Similarly, "advocacy is an art of arguing without arguing". The art of advocacy can be best understood from two very succinct paragraphs in a book written about a famous Queen's Counsel Jeremy Hutchinson by Thomas Grant titled "Jeremy Hutchinson's Case Histories", which reads as follows:
"Advocacy is the art of persuasive and attractive speech. Nowadays the student must attend many hours of 'advocacy training'. Indeed the main remaining role of the Inns of Court now appears to be just that. The upholding of integrity, duty to the court, the overwhelming importance of preparation, mastering the law and the facts, can all be taught. But, as Lord Birkett once pointed out, how can one teach that skill that could win from the diarist John Aubrey – when speaking of Lord Chancellor Bacon – the comment: 'It was the fear of all who heard him that he would make an end', or from Pitt the Younger, when replying to an expression of surprise at the huge reputation of Charles James Fox: 'Ah! But you have never been under the word of the magician.' There lies the Art of Advocacy.
Like conversation or theatre, the essence of advocacy is the impression it makes at the moment it is given voice to the immediate audience to whom it is made. The words themselves and the meanings they are intended to convey are only half of the effect. Put fine words into the mouth of a poor advocate and those words can die on the tongue. Whereas a great advocate can conjure magic out of the proverbial laundry list."
What are the traits that make out good advocacy? I will try and capture them in bullet points :
The art of advocacy can be developed only through careful observation in court. What to argue, what not to argue, when to stop, how a senior manages a difficult judge, are all traits not read in books but learnt purely by observation. A senior advocate must always bear in mind that he is watched by the junior advocates and be conscious that they should not be the cause for inculcating certain wrong traits in the junior advocates. Good advocacy ultimately results in the development of law and it adds strength to the judiciary as an institution.
Justice N. Anand Venkatesh is a Judge of Madras High Court
Views are personal