Advocacy as an Art

“He must not merely look to principles, but must have them in readiness to act upon them; not as if they had been taught him, but as if they had been born in him.” – Quintilian

“Some people think that a lawyer’s business is to make white black; but his real business is to make white white in spite of the stained and soiled condition which renders its true colour questionable. He is simply an intellectual washing machine” – J. Bleckley

1. Introduction

Justice is the great interest of man on earth. It is an oft quoted saying of Daniel Webster that, deep as foundations of society, almost as wide as human thought itself, “Justice”, in all generations has been “the great interest of the man”. If justice be the great interest of a man on earth, then assuredly those who make it a special study and by whose efforts its great ends are measurably attained, must occupy in our infinitely complicated modern society a position of pre-eminent usefulness, power and honour.

As law is essentially “applied morality”, the lawyer in enforcing its principles without litigation does more to promote justice between man and man than any other profession. He rarely can secure absolute right, because absolute right in a complicated state of human society is rarely attainable. Many a disappointed litigant has had a poor opinion of the law, and therefore of lawyers, either because he has not obtained full absolute justice, or because he is a victim of those general rules of human society, such as the statutes of limitations, which thought they work hardship in individual cases, are most necessary and salutary as rules of general application. The public before condemning the legal professional should always appreciate that the administration of justice is necessarily but an approximation toward that ultimate and absolute justice which may come with the millennium, but never before. There is between the justice of the courts and absolute justice”. Moreover, the average case is a tangled skein of disputed facts, in which the lawyer necessarily accepts his client’s version. In the average litigated case, no one side is wholly right. Upon the court, and not upon the lawyer, rests the ultimate responsibility of determining the law and the facts, and even then it must be said of legal justice.

2. Art of the Advocate Generally

The advocate is a representative but not a delegate. He gives to his client the benefit of his learning, his talents and his judgements, but all through he never forgets what he owes to himself and to others. He will not knowingly misstate the law, he will not wilfully misstate the facts, though it be to gain the case for his client. He will ever bear in mind that if he be an advocate of an individual and retained and remunerated often inadequately, for valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice and there is no crown or other license which in any case or for any party or purpose can discharge him from that primary and paramount retainer.

“In its widest sense advocacy is the art of convincing others, that is to say, the art or persuasion. It is a valued accomplishment in many departments of life, such as commerce and finance, labour relations and politics, as well as in law. In its legal context, advocacy is the art of conducting cases in the court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury, as the case may be”.

3. Equipment of an Advocate

Honesty, Integrity and Character: – An advocate is to be honest and a man of integrity and character. An advocate who is straight forward and is possessed of these three jewels is appreciated by the court and the client alike. These three virtues go along way towards the success of an advocate.

Patience and Perseverance: – Nothing pays in this profession more than unremitting industry. Even mediocre men go far ahead in the profession than those who are better than they by sheer dint of industry. On the portal of the temple of law is written a specific inscription; ‘only those capable of labour, with maximum patience, self-confidence, and faith are welcome. Let none with a defeatist and pessimist mentality and irresolute mind enter it’. To such person only shall the great portal swing open, and his feet be set on the path.

Legal Learning: – I expect an advocate to be well equipped in legal learning. He should study the law and not merely read it. I wish to stress the need for studying a thing not once, but many times. The law should be studied in a spirit of enquiry. The enquiry must be in a spirit of doubt. The spirit of an advocate should be spirit of unsatisfied research. It does mean that he should come to no conclusions of his own or desist from presenting them. As an advocate he has to present conclusions with force, even when he is in doubt. He should never take anything for granted, but examine it and satisfy himself what it is or is not.

General Education: – An advocate should not only be well versed in legal lore, but he should also be a man of wide culture. He should have full acquaintance with history, with economics and with other sociological sciences. His general ability and knowledge of international law also should be up to date. There never was a time when the profession of an advocate was of greater importance or responsibility than today. He should be fully alive to the great obligation that lies upon him to play his part in shaping the life of the community and the country. The profession of law, therefore, calls for greater knowledge or greater intellectual grasp. The magnitude and intricacy of many of the trials in this decade of ours call for the highest mental capacity.

Memory: – The next point I want to emphasize is the cultivation of memory. An advocate should possess tenacious memory. It is no use of gathering treasures, if you cannot store them. It is equally useless to learn what you cannot retain in the memory. An advocate may have in memory many cases, but if he has not the skill to use them they are of little benefit to him.

Study of Law Reports: – an advocate should keep himself in touch with the growth of the law by reading the current law reports. It will be greatly helpful to an advocate if he draws up headnotes for the reports that he studies, as that will clarify his ideas and give him accurate knowledge.

The Use of legal phraseology: – An advocate should use legal phraseology in legal parlance. Just as poetry has a structure and phraseology peculiar to itself, so has law a form a language of its own. The effect which is produced by using legal phraseology cannot be obtained by using any other common expression. The elegance and dignity of arguments in court are enhanced if the language employed is correct.

Manners in Court: – More important than intellectual equipment is moral equipment. An advocate is always expected to maintain calmness and self-possession and a pleasant humour. He should be respectful to a court. He owes this duty note for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. He can be deferential without being abject, and independent and fearless while being respectful.

Presentation of Case: – An advocate should first present his best point. He should not be in hurry. He should be cool and calm so as to be able to arrange his thoughts in proper sequence without confusion. To no one else is self-possession of greater value and productive of better results than to the advocate. An advocate should avoid the bad habit of using inaccurate expressions. A lapse into inaccuracy or deliberate mis-statement of fact, any one of these easily creates an unjust impression upon the court. An advocate should not conceal adverse points.

4. Examination of Witness

As to examination-in-chief, the first requisite is a firm grasp of the main lines of the evidence and its place in the unfolding of the case. The ideal advocate does not examine from his proof but has absorbed the essentials of the story, so that the evidence is alive for him and comes out effortlessly. The second requisite is skill in the use of words, so as to be able to guide the witness in the right direction without leading him. It has been said that the essence of successful examination-in-chief is ‘to lead, without appearing to lead’. The true technique is to guide the witness without leading hi.

Throughout the evidence-in-chief, the examiner must be in control, able to deflect the story in the right direction and away from the irrelevances: he must be ready to check a loquacious witness, and to encourage one who is timid or hesitant.

The aims of cross-examination are to destroy the material parts of the evidence-in-chief; to weaken the evidence, where it cannot be destroyed; to elicit new evidence, helpful to the party cross-examining; and to undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge.

5. What is Advocacy?

Advocacy is a skill. When a legal advisor put forward a particular argument to a court with a view to persuading the court to come to a decision favourable to their client, is advocacy.

However, advocacy can be both written and oral, and it actual fact it encompasses a whole range of skills which are invaluable to lawyers. Advocacy encompasses a range of abilities including case analysis, drafting and using skeleton arguments, making oral submissions, cross-examining witness in criminal trials and being able to put forward a strong persuasive case.

Advocacy begins when you meet a client and continues as you research the case, prepare documents for trial and finally present the case in court. It is often said that oral advocacy in particular is an art rather than a science. It is best done when the advocate says the true to their personality while putting forward a strong argument.

The advocate must have a quick mind, an understanding heart, and charm of personality. For he has often to understand another man’s life-story at a moment’s notice, and catch up overnight a client’s or a witness’s lifelong experience in another profession; moreover, he must have the power of expressing himself clearly and attractively to simple people, so that they will listen to him and understand him. He must, then, be histrionic, craftly, courageous, eloquent, quick-minded, charming and great-hearted. These are the salient qualities which go to make a great advocate.

Great courage, independence and presence of mind are essentially necessary to make a successful advocate. A timid person will never shine at the bar or win the confidence of the client and the judge. Witnesses have broken down, unexpected difficulties have cropped up, things look back from every quarter and yet the advocate has to keep his head cool and rehabilitate himself and regain the lost ground by coping with such extraordinary situations. The tide has to be turned back by devising remedy from the resource of the moment.

6. Lawyer’s Role in Society

We looked upon law as the very life-breath of a civilized society. Its study and application were essential for the maintenance and progress of society. We therefore believed that the best law is that which is based on the firm foundation of the ethical values of justice and equity and that it is the lawyer’s chief function to see that this basis of law is not maintained but strengthened.

The preservation of mutual good relations and individual freedom demands the voluntary compliance by each person with the restraints imposed on his activities by the general interests of society as a whole. The sanctity of obligations has to be recognized by the parties concerned.

The lawyer has a special responsibility to discharge within the framework of society as an agent who plays such a large part in the administrative mechanism of justice. He can, if he so chooses, stimulate the social conscience to attain a high standard of moral conduct, a condition essential for all corporate progress in any branch of life whatsoever.

7. Advocates duty towards Client An advocate owes a duty towards client in several ways like:-

• He must give a patient hearing to the client.
• He must examine all his papers.
• He must after discussing the case with his clients, advise him
• He should account for the clients’ money strictly and return the unspent amount to him.
• He must represent his client in court with undivided fidelity and not divulge his secrets or confidences.
• He should not appear for two clients whose interest conflicts.
• He should not in any way encourage an illegal transaction.

8. Conclusion

In the first place there is the technique involved in the speeches and the formulations of arguments. This is the art of oratory, which has been studied since before the time of Aristotle, with the result that it is well understood. In the second place it is necessary to know how to ask questions in examination-in-chief and in cross-examination. This is the art of interrogation, and plainly there is a technique for this, though it has not been analysed as fully as the technique of speaking. Finally, there is the question of strategy and tactics in the conduct of the entire case. There is a little technique in this because it is mainly a matter of practical judgement, but at the same time there are some useful lines of approach which can be suggested.

We conclude that the profession of law is a great calling, and to discharge the responsibility the member of this profession must make himself equal to the task. Law is a great profession of talents and calls for great knowledge, high mental capacity and wide culture. It is bound to make headway through any vicissitudes of circumstance, and through any reversal of fortune.

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Warm Regards

Adv. Dinesh Verma