Teaching skills in Advocacy with History. Association of Law Teachers Annual

Conference, Nottingham 2013.

Andrew Watson@lawcol.co.uk

Growth of courses at university introducing students to advocacyskills.

In my idea their appreciationand knowledge of courtroom advocacy could be further enhanced by study of what has shaped it over time.

The view from the Tardis:

Advocacy has changed enormously over period studied, the early 17th Century to the present.

Done so piecemeal and at an uneven pace.Result of complex interplay of many influences, most

notably individual advocates, alterations in the lawand broad social factors.

Principal drivers of change:

• Styles and approaches of successful advocates;• Judicial tastes;• Changes court in procedure made by judges;• Reforms of laws of evidence;• Alterations in civil and criminal procedure and

substantive law;

• Extent of press reporting cases in court;• Public and opinion on what are acceptable

limits of advocates’ tactics and oratory;• Advocates’ professional rules of conduct and

extent to which they are followed;• Levels of respect and civility between

advocates and judges;

Principal drivers:

Principal drivers:

• Standing of the judiciary and its power to control proceedings in court;

• Extent to which juries are used in trials;• Social origins and educational standards of

jurors;• Greater education and knowledge of jurors,

making them less susceptible to melodramatic emotional appeals;

Principal drivers:

• Awareness and use by advocates of contemporary language and popular cultural references;

• School education received by lawyers;• Formal teaching of courtroom advocacy;• General styles of public speaking and

discourse in society;

Principal drivers:

• New technology;• Relationship, though not simplistic, between

quality of advocacy and amount paid for it;• Widening the pool of advocates.

Opportunity to draw international comparisons with common law

countries and civil law countries eg the United States, and Japan.

Discussion, debates and moots on issues of modern relevance including:

• Cab rank rule;• Preparing witnesses;• Televising courts.

Similarities and contrasts with courtroom fiction could be drawn.

Visits to courts and Inns of Court.

Pressure of time may require some selectivity, but enough must be conveyed to show that advocacy is fluid and subject to a complex interplay of factors and that they will witness future change, and may even contribute to it.

Whilst imagined as an addition to courses involving skills in advocacy, sufficient material exists for discrete

courses on the development of advocacy at both undergraduate and graduate level.

May, in a modest way, contribute to growing body of external legal history and be of interest , beyond the law faculty, to students of history and other disciplines.

Background to advocacy could be explained at the beginning of professional courses eg. the Bar Professional Training Course.

When tried it receiveda positive response. Many wanted to know more.

David Cairns the preface to his book, firstpublished in 1998, described the history of advocacy as neglected: “no more sophisticated or significant expression of the art of the lawyerhas been studied less.” This inattention, in his view,exemplified the continuing gulf between the worlds of legal scholarship and legal practice.

Geoffrey Robertson QC, in his preface to Sir William Garrow, by John Hostettler and Richard Braby, 2009, criticises legal history’s disdain of advocacy “in favour of teaching the tedious history of contract and landlaw, partly because of the inability of historians to comprehend the dynamics of forensic practice and how this impacts on the rules of the trial process.”

It is submitted that greater knowledge of what has shaped modern advocacy is in itself good and may enhance its quality. Much to be said for the view of Counsellor Pleydel in Sir Walter Scott’s Guy Mannering, “A lawyer without history or literature is a mechanic – a mere working mason; if he possesses some knowledge of these he may venture to call himself an architect.”

Courses informing students of the rich history of advocacy may result in more scholarship on the subject especially by those who become advocates and who will acquire a strong grasp of courtroom dynamics. More awareness of what has formed it may also enhance the quality of modern advocacy. The worlds of legal scholarship and legal practice, seen widely apart by David Cairns and Geoffrey Robertson, may, therefore, be drawn more closely together.

Conclusion:

Poster depicting the development of advocacy: