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The Devil's Advocate

May 26, 2006

Advocacy is a skill that can be taught. Up to a point. So says our author. In a series of very short sentences. The purpose of advocacy is often to achieve short sentences, at least where acquittal is not possible.

So the style makes sense. Good advocacy is punchy, and the style of a book of this kind should reflect that.

The idea that one might be taught advocacy was not current when I trained for the Bar. The first jury trial I ever saw featured me as defence counsel. I won. I had suggested to my client that he might plead guilty before we started, and his graceful speech of thanks featured the memorable sentence: "It's a good job I took no notice of you, you idiot."

Now, however, Bar students are trained in advocacy, and methods have been designed for doing this. Iain Morley is a distinguished criminal barrister (a useful oxymoron) who gives his time to teach trainee advocates how to do the job. He has now published this tract to make his methods more widely available. The advice is good, and the whole thing can be read in an hour or two. At the end of it, the reader will have insight into how the advocate works and in the methods that should usually be deployed.

Readers who are not advocates may chiefly be surprised by the cautionary nature of the advice. Of cross-examination he says: "The general rule here is DON'T DO IT." Of re-examination it is: "In general DO NOT DO IT." It is as well that he allows examination in chief, or the witness would not be allowed to say anything at all.

There is useful advice about presenting legal arguments: "GET IT RIGHT", and the remarks about the closing speech are practical and sound.

Perhaps this controlled approach to advocacy is one that works best when defending guilty criminals with poor defence cases. In such cases, it is fatal to allow witnesses to say more than they need to, but since failure is usually inevitable whatever one does, keeping them quiet is often equally unsuccessful.

The aim of advocacy is not simply to be able to visit the defendant in the cells afterwards and to say: "I did not make things any worse." The aim is to try to make things better, which may involve some risks. There are cases where a witness needs to be confronted with material designed to discredit him, which involves a sustained and detailed attack. One example is the cross-examination of a defendant giving evidence in a complicated criminal trial. In those cases where you, as advocate, are trying to get the witness to reveal himself to the jury so that his true nature will emerge and discredit him, you cannot control the situation. You can land your blows, but you know you will take some back.

This book is a fine primer to good advocacy sense. It does not, I think, tell you how to be seriously good, but it does tell you how to be competent. As such it has a value to all of us. However good we might think we are, we all have bad days, and bad moments in good days. The bad moments live longer than the triumphs, and cautionary advice on how to avoid them is never wasted. The true advocate knows when he has to take risks, and how to take them. You cannot learn that from books, but what you can learn from books can be learnt from this one.

Andrew Edis QC is a practising barrister.

The Devil's Advocate: A Short Polemic on How to Be Seriously Good in Court. First Edition

Author - Iain Morley
Publisher - Sweet and Maxwell
Pages - 235
Price - £12.95
ISBN - 0 421 91480 7

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