Lecture to a conference of The Dublin Solicitors Bar Association 3rd July 2008
At some level or other everybody is an Advocate. As a child you would try to convince your parents to give you more pocket money or to allow you stay out later at night. As an adult you would try to convince a girl friend that a skiing holiday is ultimately more preferable than a holiday on the beach or that it is more important that you play football on a Sunday rather than visit parents for dinner. As a parent you would try to convince your children to eat their food or study more. At work you would try to convince your boss that you should be getting a larger raise than he is offering. In all of these circumstances you are trying to persuade the other person that your ideas and contentions are slightly more preferable than the ones they have held to date. If you think about it you use all sorts of different techniques to influence the other person.
Being an Advocate in court is somewhat similar except you are given a set of facts and a set of legal parameters and you are asked to obtain the best result you can for your client. This result will be achieved partly by your advocacy in court but mostly by the hard work and preparation you put in long before you come to court.
To attempt to illustrate how a good Advocate operates in practice I will confine my remarks for the moment to discuss how a Criminal Defence Lawyer ought to act in circumstances where he is briefed to defend a client charged with criminal offences. The most important part of his work is preparation.
If a client approaches you to act in such circumstances you will obtain the summonses or charge sheets from him. You first job is to study the legal parameters associated with the charges. This means reading up various Acts and sections mentioned in the charge sheet and also having knowledge of the appropriate Case law. It is often the case that the client has been charged under the wrong Act or section of the Act. If it is a summary matter it may be that the application for the Summons or Charge Sheet has been made outside the six months statutory period provided by the Petty Sessions (Ireland) Act,1851 . It may be that your client has been charged with an offence no longer known to the Law. For instance if your client is charged with failing to give two breath specimens in a manner specified by a member of the Garda Siochana he will have a complete defence under the Moorehouse Decision ( Supreme Court unreported 28/7/05. Murray C.J.) that such an offence is not known to the Law. Your client may be charged with having excess alcohol in his blood whereas in fact he gave a sample of urine. Your client may be charged with an assault contrary to Common Law when in fact such assaults were abolished by the Non Fatal Offences against the Person Act 1997. The advice to make sure you understand the statutory provisions is particularly cogent in cases where you are dealing with newly created offences. I remember many years ago one case where a client was charged with Murder under the Criminal Law (Jurisdiction) Act 1976 which allowed the client be tried in the Republic for offences committed in the North and vice versa . The Trial had proceeded for seven days before a relatively young solicitor asked the question as to whether the client had been put on his election as to what part of this country he wished to be tried in. Nobody had averted to that particular Section in the Act until then and the Trial had to be aborted. The relevant Case Law must also be studied. Access to recent Case Law is one of the areas that barristers did appear to have the advantage over solicitors as they seemed to be able to obtain recently reported decisions almost immediately. With the advent of internet, solicitors should now be in the same position as Counsel and I cannot stress enough the importance of being completely up to date with the Case Law in relation to the particular set of charges. If possible you should prepare booklets of Case law for the Judge, the opposition and yourself.
Once you have understood the relevant Law it is then essential to understand the relevant facts. When I started practising in the District Court we never had any idea what the case against our client was going to be nor what witnesses were going to be called nor what the witnesses were going to say. All we had to rely on were our own client’s (often distorted) view of what happened and then we went down to court and did the best we could as the evidence unfolded. There is no doubt that this trained us to think on our feet and that is no bad thing. However thankfully as a result of the Cowzer case High Court 11/2/1991, Barr J and more importantly the Gary Doyle case 1994 1 1LRM No.7 529 there is now an obligation on the State in most cases to furnish you with either a precis of the facts or the witness statements of the Prosecution. Once you have received and read these statements you are then in a position to properly interview your client. You will probably have interviewed your client before receipt of statements but to my mind the most important interview you have with him will be the one after the statements have been received. It is also essential at this stage to get good personal details from the client and follow up on getting any work references and medical reports etc. In our office we keep a sheet with these relevant personal details inside the file cover for easy access. Once you have consulted with your client you will then have to consult with any witnesses that he may have. One of the fundamental rules of Advocacy is that you never call a witness (including your client) unless you have interviewed them beforehand and taken a note of what they are going to say. You cannot rely on the fact that the client has told you that his best mate is going to confirm his story. Despite this apparently basic rule I have seen many cases where witnesses have been called on behalf of the accused and who in fact have destroyed the case that he is making.
At this stage you ought now to be in a position to video in your own mind the facts as outlined by the Prosecution and similarly video the facts as described by the Accused and his witnesses. Usually of course there will be discrepancies. Your job is not to resolve the discrepancies. Your job down the road will be to convince the court not that your client’s version of the events is the correct one or even the most likely one but that the court must have a doubt as to the veracity or the likelihood of the circumstances proffered by the Prosecution.
In many cases you will be surprised that in fact you will have difficulty in trying to understand either or both sets of circumstances outlined by the Prosecution and the Accused. Further work may be necessary. It is very important for instance to understand and appreciate the locus of where the incident took place. A quick sketch drawn by the Accused can be helpful but I find that an ordnance survey map of the area is of great assistance. Sometimes however you may actually have to go out and examine the area yourself. In one case I acted for a group of doormen who allegedly assaulted two patrons at a night club. I had read the statements of the patrons and their witnesses, the statements of the night club doormen and their witnesses and in fact had even viewed relevant videos of the night club. It was only when I went out to examine the night club that I realised that there was an additional long corridor attached to the nightclub that neither side appeared to remember and that was not covered by video. As a result of seeing the locus I was able to show that the evidence of the patrons could not possibly be correct and we obtained a dismissal.
Speaking of videos, as you are aware as a result of the Dunne [ 2002 2.IR 305 ] and Bradish [2001 3.1R 127 ] cases there is an obligation on the Prosecution authorities to seek out and retain any relevant evidence that may be of use either to the Prosecution and to the Defence. When writing your ‘Gary Doyle’ letter it is essential that you ask for any disclosure as per these cases including disclosure of videos. In some instances the Prosecution authorities will have made no attempt to either search for or retain evidence and sometimes the owners of a night club will have destroyed the videos that might have assisted the Defence. In these circumstances you may be in a position to halt the Trial against your client on the basis that the Prosecution authorities have breached the rules set out in Dunne, Bradish and other cases. In such circumstances if you obtain such a result you will have done as well as the greatest Advocate in the world could have done. You have had your client acquitted.
Finally you are entitled to be furnished with the custody record as of right. Close examination of this record can often give you a fruitful basis for cross examination at a later stage.
At this stage now that you know the relevant Law and the relevant facts, you should be in a position to draw up a short note of the potential difficulties that the Prosecution face in the case. In a Drunken Driving case for instance they may not be able to prove time of driving, in a Drugs case there may be a breach in the chain of evidence or they may have a difficulty in proving the search warrant. In an assault case there may be difficulties with identification. These will be aspects of the Prosecution case that you will concentrate on when in fact the case comes to court.
In technical cases such as Drunken Driving I also make out a list of the various matters that the Prosecution must prove to obtain a conviction. The accused person is like a prisoner in a prisoner of war camp. His object is to escape from the camp. All he has to do is find one breach in the camp security and he may escape. The Commandant of the camp however has to ensure that every cell door is locked, that there are no breaches in the barbed wire around the camp and that all of the guards are sober and are not falling asleep, that there are no tunnels being dug etc. Similarly it may appear from your preparation that the Prosecution authorities have difficulties in relation to for instance four aspects of the Prosecution. It may be however that they forget to prove some other matter that they are quite capable of proving and the Advocate must be alive to this possibility. That is why the creation of the two lists I have mentioned can be of great assistance. I remember in one case under Road Traffic Acts I had prepared a huge convoluted Defence based on the statements of the Prosecution and the Accused. At the end of the State case and just before I was about to call my client a colleague whispered in my ear that the State had failed to prove that the incident had occurred in a public place. I sought and obtained a dismissal on that basis. There was no need for any great advocacy after that.
Once you are happy that you are perfectly prepared you can then start thinking about the actual appearance in court. Preparation is the first golden rule of Advocacy. The second is the absolute necessity for you to consider what you hope to achieve by what you are doing and what you are about to do. Presumably you want to get the best result for the client that you can in the circumstances. However you have to take the client’s perspective into consideration as well. It may be that a quick plea of guilty to a Public Order offence and payment to the poor box may result in your client being left without a conviction. Many clients will be delighted with this. However your client may feel that he has been, for instance, badly treated by the Gardai or indeed that he is innocent of the charges and he may wish therefore to fight the case. Once you are happy that you know what your client wants to achieve and also what is achievable you can decide how to approach the case. In many cases a good plea bargain will gain you exactly what your client desires. Secondly even if no plea bargain is available there is no doubt that an early plea may obtain the desired result. The court will undoubtedly give you credit for the plea and the Prosecution will have no difficulty in treating the facts in a more favourable light to your client than if he was pleading not guilty. Again remember the psychology of the situation. The court will be happy that its list is shortened. The Prosecution will have obtained their objective – a guilty verdict.
There is no sense in going down any of these routes however unless you have some idea of the sentencing form of the particular Judge you are appearing before. Knowing your Judge is probably the third most important rule for any Advocate. Some Judges have particular problems with unlawful taking of motor cars, other Judges have problems with assault. If therefore your client is charged with unlawful taking of a car, criminal damage to the car and assault on a person who tries to prevent him taking the car, it may be that the Prosecution may be prepared to drop either the assault or the unlawful taking if you pay the amount of the criminal damage. So, if possible choose the offence least likely to upset the Judge. Once you know your Judge you know which charges to request the Prosecution to drop. Some Judges may have a difficulty with middle class University students going out and getting drunk and causing trouble outside nightclubs. Another Judge may feel that in fact in these circumstances the nightclub itself is partly to blame as it was the nightclub that continued to serve the student drink even though it was quite obvious that he was drunk. While Judges are concerned to prevent forum shopping there is nothing wrong in an Advocate striking while the iron is hot if a particular favourable Judge happens to be sitting on the relevant date.
If however you have decided to plead not guilty the case will come up for hearing in the court. Any competent person can learn all of the earlier advice that I have given. It is when the Advocate has to stand on his feet in court that innate ability shines through. There are undoubtedly some people who will make better Advocates than others because of particular gifts that they may have and because of their personality. However if an Advocate understands what he is trying to achieve by the way he conducts his case and understands that he is performing the time honoured task of trying to persuade the Judge to move in a direction posited by the Advocate he will not be far behind the great Advocates in obtaining his result.
The Court Appearance
1. It is obvious to say that the Advocate should be on time, have the opportunity to organise his papers, have the opportunity to discuss the matter with the opposing Advocate and indeed Garda officers if applicable.
2. You will have found out what Judge is sitting and if you do not know him will have discussed his form with other colleagues.
3 You will dress appropriately and look as best you can. You will feel well within yourself and although a little nervous will feel competent in your own abilities and will portray that confidence to the court. Over confidence is of course arrogance and there is nothing more likely to make a Judge dislike you and therefore hold against you than arrogance.
4. You will have your note of the relevant legal points that prosecution must prove together with your note of the weaknesses in the Prosecution’s case.
5. You will have a video of your own client’s case and a video of the Prosecution’s case in your mind and if necessary will have the salient points written out – in particular a chronology of the events is always useful in drunken driving cases, when observation periods etc. are often fundamental.
6. You will be pleasant and courteous to Judge, Registrar, Prosecution and their witnesses. You know however that you are as good as any of them and therefore you will not be too deferential and will certainly be prepared to argue your client’s case with everybody including the Judge if necessary. However No Judge is going to be persuaded by an Advocate who tries to bully or insult him or indeed bully and insult witnesses. No Judge is going to be moved by an Advocate who is obviously seeking to achieve impossible results. No Judge is going to completely change his mind just because an Advocate asks him to. It is important to keep your emotions under control if you lose your temper you lose the case.
Once you have decided that there are no preliminary points (e.g. summary proceedings applied for out of time or a delay point) the case will commence. If you have your Gary Doyle statements you can check the evidence of Prosecution witnesses against their statements. If they deviate from their statements too much or give evidence contrary to their statements you are in a strong position to cross examine them on inconsistencies. Similarly if their evidence deviates from what is recorded in the custody record.
Do not ever proceed with the case in the District Court unless you are sure that you have full instructions, that you know all the facts and that you are in a position to proceed. Never be afraid to ask for an adjournment if this is appropriate. On the other hand if you have arrived at court at half past ten and your case is not called until half past twelve you should not be seeking an adjournment because you have not had an opportunity to speak to your client.
As the witness gives his evidence you may wish to mark off on your sheet of paper the necessary proof that he has proved and similarly if he has given inconsistent or contradictory evidence. On the other hand you may wish to take down his statement as he makes it and then check off against proofs when he is finished. This of course can take some time which might upset the court. When you have appeared in enough cases you develop a second sense whereby your antennae will pick up any peculiar contradictory remarks that the witness makes. These of course should be noted down for potential cross examination later.
When the witness is finished his evidence, before you get to your feet to cross examine him you need to ask yourself the question; Do I need to cross examine this witness at all. It may be that he has failed to prove essential points in the Prosecution’s case or it may be that there is nothing to be gained whatsoever by cross examining him in those circumstances. Don’t be afraid to stay seated. Almost every new Advocate is and feels constrained to ask questions even when this is not necessary and even harmful. It is a good idea to have explained to your client beforehand the reasons why you might not be asking any questions in cross examination. If you feel however that something can be gained by cross examining, then proceed. Never ever ask the question unless you know what you hope to achieve by the answer. Despite the well known adage to the contrary you may have to ask a question to which you do not know the answer but obviously you have to be very wary about so doing. The Examiner in Chief’s aim is to make the witness feel relaxed and your job is to do the opposite. Never therefore ask your questions in a chronological order. You can question your witness in relation to any part of his evidence and you can jump from one part of his evidence to another. If the witness gives evidence directly contrary to the instructions of your client it is rarely worthwhile to attack that evidence head on. Most people, once they have sworn to certain facts are not prepared to resile from them. You should therefore attack the peripherals of the witness’s evidence. The fact that you usually have his statement will help you greatly in this. He may have given inconsistent evidence about apparently unimportant matters and these can be developed to show that he is unreliable. He may be unreliable about the weather at the time, the TV programme he was watching, the locus of the scene, the clothes that your client was wearing, and importantly the chronology of events. Therefore even if this witness sticks to the main part of his story but can be shown to be totally unreliable in relation to other matters, the Judge may not give his evidence much credence.
If you are in a position to show that the witness is either lying or mistaken about a specific point you must paint him into a corner and just as in chess you must block off all his escape routes before you go for check mate or in our case ask the damning question. Finally and this is probably the biggest mistake I have seen Advocates make, if you receive the specific answer that you require do not ask any further questions – even to emphasise the answer. This will allow the witness an opportunity to deny his first concession or more probably explain it away and you will lose the advantage. Sometimes you have to be very tough with a witness and sometimes even go for the jugular but you must never be insulting or nasty to him and you must never make petty points at his expense just to show how great an Advocate you are. Remember you are trying to persuade the Judge and he will not appreciate this behaviour and will be less likely to follow where you wish him to go.
A good Advocate must be able to think on his feet. You may believe that there are three or four weaknesses in the State’s case and yet in the course of the State’s evidence other doors may open (c.f. Paddy MacEntee S.C. in DPP –v- Smith) . That is why it is wrong to write out all of your questions beforehand as quite quickly the cross examination will often go off in a direction that you did not expect. Do not waste the Court’s time. Do not attack irrelevant parts of a witness statement unless it tends to cast doubt on other parts of his evidence or his integrity. A good Advocate does not have to show off in that manner.
At the end of the prosecution case you may seek a direction. You should only seek a direction when you have some statable points to make otherwise you will only annoy the Judge. If you have points to make, make them in a strong, forceful but pleasant manner (c.f. Solicitor and Speeding Offences). It is usually better to deal with your strongest point first.
If a direction is not given you may have to call a client and his witnesses. There is a duty to put to the Prosecution witnesses any allegations that either your client or his witnesses are going to make about them. Failure to do so is very embarrassing and the court will believe that in fact your client and his witnesses are just making up their evidence as they go along. This may be very unfair on them if in fact they had made the allegations when you interviewed them.(c.f. Barrister taking advantage of young solicitor).
At the completion of the case you can seek an acquittal. If that is not granted you will have to make a plea of mitigation. This plea is easier made if in fact you have been firm but pleasant with the court and with the Prosecution witnesses. It is not so easy to make if in fact you have behaved in a more strident and abusive manner. If your client is convicted, even if he does not receive a prison sentence you should always ask for recognizances to be fixed. This may save you a lot of time at a later stage if in fact your client decides to appeal.
Being able to make an effective plea of guilty is the sign of a good Advocate. Again before preparing a plea of guilty you must work out exactly what you want to achieve. The Court is dealing with a person who has committed a criminal offence. Your aim is to convince the Court that this person should be seen in a different light and that he should be given a chance. This objective can be achieved if you can convince the Court that the client is unlikely to commit offences in the future you should concentrate on the following;
1. The age of the client - can you convince the Court that he is at the age of maturation and unlikely to commit the offence again.
2. Addictions – If the client is an alcoholic or a drug addict and you can show the Court that he is receiving help for these addictions it may be less likely that he will commit an offence in the future.
3. Associations – If you can show the Court that the client has ceased to associate with certain persons or with a certain sub culture.
4 Explanation: Is there an explanation for his conduct that would show the Court that for instance it was a once off and unlikely to happen in the future.
5. Punished already If the client has spent some time in custody on remand you can try and convince the Court that he is abhorred at the thought of going back to Jail and will therefore not commit offences in the future. Similarly you can argue that he has been punished enough as a result of the publicity, loss of job, loss of licence etc.
It is important not to just rattle off a few insincere sentences in relation to the client. If you have spent time with the client discussing his friends, his upbringing, his addictions, his interests you will find it much easier to make a sincere plea on his behalf. Finally it is important to pitch the plea at an appropriate level. If the client has a large number of convictions for assault and has smashed a bottle in somebody’s face it is unlikely that the Court will be sympathetic to your argument that he should be left without a conviction.
Preparation, knowing what you want to achieve, ability to cross examine, ability to persuade the Judge are obviously all marks of a good Advocate. However a more important virtue is his integrity. You will act in many cases in your life as a solicitor and in so doing you will develop a reputation. Your job is to do the best you can for your client but it must be done in a way that does not mislead the court. Eventually the Judiciary will come to rely on you and you will find it much easier to convince the court to go in a certain way if it can be sure of your integrity. If it can’t, no matter how good an Advocate you are, you will be a failure. Your integrity is the overriding consideration. Your job in defending a client on a plea of not guilty is to show the court that the Prosecution’s case does not prove your client’s guilt beyond a reasonable doubt. You cannot call your client or his witnesses to say he is innocent when he has told you that he is not. You may demonstrate other weaknesses in the Prosecution’s case and thus achieve an acquittal for your client though he has told you he is guilty. You cannot bring to the court’s attention matters which you have learned in the legally privileged consultations you have had with your client unless the client waives the privilege. On the other hand you cannot tell the court matters which you know are not true as a result of those instructions. For instance it is no business of a Defence lawyer to bring previous convictions of his client to the attention of the court if in fact the Prosecution failed to do so. On the other hand you cannot tell the court that your client has no convictions just because the Prosecution has failed to produce any, in circumstances where you know he has convictions .Never ever lose your integrity over one client, no matter how important. You must think of all the other clients down the road who you will have failed if your integrity is put in question. It is important to remember that you can unconsciously mislead the Court by repeating to the Court your client’s excuses for not turning up in Court or for not attending the Probation Officer, without having received independent verification of these excuses.
There is no greater thrill for a solicitor than to have obtained a good result for his client in criminal proceedings. This can be done by good plea bargaining, a good plea in mitigation, the raising of a good preliminary point before the case is heard, good cross examination of Prosecution witnesses or finally a good application for direction or dismiss. Going through a full Trial and coming out with an acquittal is a great moment in an Advocate’s life and makes all the drudgery seem insignificant. There is a lot of drudgery involved. The preparation, ascertaining of the facts, consultation with clients, looking up Law will often take much more time than the actual court hearing.
There is no reason why solicitors cannot be good Advocates. They are very rarely seen in the Higher Courts and even in the District Court many of them appear to be content to sit in front of barristers and are mere note takers. I know many people are frightened of standing up in court but if they do the preparation as advised and they start appearing in relatively unimportant cases there is no reason why they cannot go on and be as good as their barrister counterparts. Once you get the buzz of appearing in court, particularly if you start doing well it is very very hard to get back to the usual nine to five at the office. I think more solicitors should be appearing in the Higher Courts but because of the structure of the two professions and because heretofore Judges were always taken from the ranks of barristers this was not an easy thing for most solicitors to do. If you do decide to appear in the Higher courts you will find that it is probably necessary to have a second person there in any event to take notes as it is impossible to cross examine and take notes at the same time. It may therefore be that we will always need a set of persons who are Advocates (not necessarily barristers) and another set of persons who will spend more time in the office and who can attend these Advocates in court. Young barristers coming through at the moment seem to be all very well trained, eager and competent but no doubt the same can be said about our young solicitors. Therefore I would urge all of you to practise some Advocacy in at least the District Court and I guarantee that after your first successful day you will want to do little else in Law in future.