1. Effective Advocacy FM Joe Harman for the Salvos Lecture Series Sydney 5 March 2011

2. What is effective advocacy? Advocacy:  the act of pleading for, supporting, or recommending; active espousal  The act of pleading or arguing in favour of something, such as a cause, idea, or policy Effective  producing or capable of producing an intended result or having a striking effect  able to accomplish a purpose

3. Basic Rules – a bakers dozen Rule 1: “The Currency of the Lawyer is admissible Evidence” - Justice Peter Murphy  Many jurisdictions including FLA & C&YP(C&P)A do not strictly apply the rules but....  Rules of Evidence are never entirely excluded  The best evidence is probative  Decisions on serious issues require serious proof (see s.140 Evidence Act and Briggenshaw)  Rules of evidence apply from the get go

4. Basic Rules Rule 2: “You can’t improvise until you know and understand the script” – Marlon Brando  Flexible application of rules of evidence (such as Part 7 Division 12A FLA) requires a sophisticated understanding of the rules of evidence  You need to know and understand the cause you are advocating  Challenge and reality test instructions  Use narrative instruction

5. Basic Rules Rule 3: “Be Prepared” – Baden Powell  No amount of intellect, memory or skill is a substitute for preparation  Know and understand the case you are presenting  Gather the evidence you need before the hearing (remember Jones & Dunkell?)  Know the case you have to answer (Don’t be Brown & Dunned)  Always prepare a chronology even if only for you

6. Basic Rules Rule 4: “Advocate Don’t Champion” An effective advocate:  Is compassionate but not passionate  Is empathetic but not aligned  You cannot advocate if emotionally engaged  Advocate a client’s cause don’t adopt it  Recognise and differentiate your personal views  Have no agendas

7. Basic Rules Rule 5: “This what you want this is what you get” – PiL  Ascertain long term goals – what outcome does the client/legislation want to achieve versus what do they say they want? (E.g. s.60CC(2)(a))  Give advice and don’t be afraid to challenge  Give advice about what’s realistic/achievable  Know the relevant literature and use it  Don’t ask questions you don’t know the answers to: what does that mean for lay/expert witnesses?

8. Basic Rules Rule 6: “Why is it so?” – Prof Julius Sumner Miller  Question instructions (respectfully)  Don’t suspend reality  Ask yourself and understand “why” before the Bench does  Understand cause and affect and the impact on a case (and possibly your instructions)  If things don’t make sense to you good luck getting it to make sense to the bench

9. Basic Rules Rule 7: “A pig with lipstick is still a pig” – Barack Obama  Not every case can be successfully advocated  Don’t avoid the hard questions: answer them and do something about them (under the FLA it’s your responsibility to)  If something’s wrong don’t pretend it’s right – it makes it worse (e.g. DV)  If your best answer to a question from the Bench is “those are my instructions” stay home

10. Basic Rules Rule 8 “Know your enemy” – Sun Tzu, The Art of War  Consider the strengths and weakness of your argument and the other party’s  Don’t deal with adverse evidence by hoping no-one else notices  By understanding the case you answer you can better prepare and understand your own case  Acknowledge weaknesses and act appropriately (e.g. negotiate or concede the point)

11. Basic Rules Rule 9: “Encourage Settlement” – Abraham Lincoln  Settlement is for weak & strong cases  Preserve the fruits of your client’s litigation  Be aware of the costs of litigation (financial, emotional and long lasting)  Only fight the fights you need to  Don’t chase rabbits (unless they’re worth chasing)  A good settlement gives parties what they need  Think of the people you don’t represent (erg kids)

12. Basic Rules Rule 10: “Respect all” – Mahatma Gandhi  Do unto others as you would have them do unto you  Use people’s names, ask permission, be polite (you’re representing the profession and the Court)  You catch more flies with sugar than %^!@*  Hearing the message depends on delivery  You’ll be more focused and less stressed if respected

13. Basic Rules Rule 11: “Be issues based and outcome focused”  The first rule is relevance (s.56 Evidence Act)  Tailor outcomes to the dispute  Define issues narrowly and broadly  Work backwards (For this outcome to work what is needed)  Think creatively and beyond the law (at least in parenting proceedings)  “What needs to change to be on the same page”

14. Basic Rules Rule 12: “Submissions are supported by fact not emotion”  This is NOT Hollywood  These are the facts and this is the law – how do they fit?  Accept there is rarely one right answer  Consider the possibilities and know why your proposal is better  History sometimes helps to predict the future  Leave out adjectives, judgements and unnecessary criticisms

15. Basic Rules Rule 13: “When in doubt return to the legislation”  Case law helps but its all in the Act  Use the language of the legislation  Be familiar with “objects” (if present) and their role  If it’s not in the legislation then how can it happen?  Know which legislation applies (it may be more than one piece)  All the answers are usually there

16. Conclusion  The best advocates are not show ponies  Affective advocacy is about the facts of your client’s case not you  Effective advocacy:  is about substance not style  is good marketing  Keeps it simple (and makes the complex seem so)  Builds a good reputation  Your reputation is yours and no one can take it away from you