Nigel Pascoe QC – whom I have been proud to call a colleague for more years than I care to remember, which is still only a fraction of the time that he has been at the height of his profession – adopts Norman Birkett’s definition of advocacy:
“Harnessing your personality in support of a cause.”
His advice to young advocates is the not uncommon advice given to nervous interview candidates: “be yourself.”
“If you try to be someone else,” says Pascoe, “it will sound phoney. It is phoney.”
I am not so sure. Being yourself works very well if you have the personality of Pascoe: warm, open and sympathetic to almost everyone. It is hard to imagine that he could have any enemies.
Other advocates, I fear, have done very well from being phonies. George Carman, acknowledged in Pascoe’s book as one of the greatest advocates of modern times was – if we are to believe the account of his son Dominic – an insecure, frequently drunk, violent, sexually inadequate womaniser. His was a personality best kept concealed.
Like many very good people, Pascoe may occasionally have difficulty in detecting or believing anything but the best about others. I remember attending a court centre intermittently over the course of many months where he was involved in a seemingly interminable case, the details of which are (fortunately) of no consequence. One of his opponents was particularly gritty and determined, and was given to somewhat dubious techniques; the sort who hands you a 20 page skeleton argument 15 minutes before the court is due to sit, and then does the same thing the next day. And the next. And then two skeleton arguments the next day. During the first two or three weeks Pascoe shrugged off these flaws as minor peccadilloes and could not have been more effusive in his praise for his opponent:
“Brilliant legal mind … superb cross-examiner … future Lord Chief Justice.”
After 6 weeks he had been worn down:
“Very determined … rather stubborn …a little inclined to miss the wood for the trees.”
Finally, after the trial had all but ground to a halt under the weight of his opponent’s abuse of process arguments, a rare flash of impatience suddenly appeared:
“That [name and very mild expletive deleted], can be rather tiresome at times.”
Other advocates would have been swearing and cursing by the second day, but that is emphatically not Pascoe’s style. As a result, he is one of those rare people who is liked by everyone he meets, and that, I am quite sure, includes jurors and judges.
Unless you share such a personality simply being yourself may not take you very far, but don’t worry because the rest of this slim volume is full of practical hints that will.
He is good on organising your papers, a dull task indeed, but one that almost all exceptional advocates excel at. Nothing is more important in preparing a case than than being able to find the vital document, and nothing is more irritating in court than to be unable to do so. Rightly, he makes the often overlooked point that a chronology is an essential part of any serious case preparation, and he sets out a simple and easy to understand system that any young advocate would be well advised to follow. Pascoe was an early enthusiast for voice activated software, and his enthusiasm has not dimmed:
“It is astonishingly useful for advocates and I do not understand today, when it really works, why more of them do not use it.”
Important skill though it is, the young advocate needs to know a lot more than organisation of the ring-binder, and Pascoe’s book helps, though whether every piece of advice always works if you don’t share his sunny personality may be arguable.
Do not, he advises, suggest to complainants in sex cases, “You’re lying about that.” Instead advocates should politely ask the “more courteous and effective ‘I do suggest that on that point you are not right / correct.’” I’m not so sure this is always sound advice: courtesy has its place in advocacy, but so, on occasion, does bluntness. Asked that question by the transparently decent Pascoe perhaps a few witnesses will say “Now you’ve put it as politely as that, you may well have a point, I’m really not at all sure it is correct.” The bigger gain, though, is that a courteous approach is less likely to lose the sympathy of the jury.
Sometimes, though, an over-polite approach is disastrous: I can think of at least one case in which a scrupulously polite cross-examiner framed all her important questions to the complainant in a rape case in this courteous style, studiously avoiding use of the word “lie,” even though lying was the only plausible reason why her account could be untrue. Maybe Pascoe could have carried it off, but with this advocate courtesy felt like cowardice; like a diver on a rock, going to the edge but never quite plucking up the courage to jump into the heaving water below. Worse still, it created a dilemma for her client when he came to give evidence – if he chose to be as polite as his counsel, why was even he afraid to accuse the complainant of lying? If he did accuse her of lying, why then had his barrister not done so?
In a short and largely practical book, Pascoe does not go into great detail about the ethics of advocacy. Integrity, he rightly says, should be at the top of the list of the qualities of an advocate, something that members of the public sometimes fail to grasp, given that of necessity a barrister spends much of his or her working life trying to persuade people that things that have happened haven’t, or vice versa. Pascoe emphasises that integrity is a practical as well as an ethical virtue: in order to persuade an advocate must be trusted.
Of course, says Pascoe,
“there is a clear distinction between glossing over the more difficult aspects of your submissions and misleading a court. For example, in a plea in mitigation, it is not your duty to put forward every daft suggestion of your client. Many a sex offender actually believes it is important to tell you that the child led him on assault. It is, of course, utterly wrong, completely irrelevant and counter-productive. That sort of admission against interest can be left in the backsheet and need not see the light of day.”
All well and good; but how about if the same client has told you something along those lines that flatly contradicts what he told to the writer of the pre-sentence report? Does the honest advocate allow the judge to sentence on the basis of the remorseful penitent described in the report, knowing that it is in fact a false picture. Advocacy has a habit of throwing up difficulties of this sort that do not admit of easy, or necessarily comfortable answers.
Indeed, the whole notion of one advocate being better than another – and whatever the ideal may be that often happens – is rather uncomfortable for the concept of justice. Why should a court’s decision depend at all on the quality of the advocates? There are two possible answers. First, to prevent a person from putting forward their case as powerfully as possible would be itself to create an injustice. Secondly, and more fundamentally, the better the advocacy, the more likely it is that the court will arrive at the correct decision; but that is only the case if the advocates themselves are honest and fair and observe the same rules.
Pascoe is known as a jury advocate par excellence, and he is disarmingly – and quite misleadingly – modest about his effectiveness in front of the Court of Appeal. He writes about “the Reading factor,” a sinking feeling that those Grounds of Appeal that looked so unanswerable at Taunton tend to look threadbare by Reading. The key to effectiveness, he advises, is to ruthlessly pare Grounds of Appeal down to the minimum. That is certainly true, as is his equally important, and easier to practise, point that you should always use a large font. Some judges have become remarkably, testy about font size and in recent years rules about fonts have even started to creep into Practice Directions. 12 seems to be the generally accepted minimum, but 14 is easier to read.
Pascoe is also right to warn against the infuriating tendency of some advocates to number their paragraphs 1.1, 1.2 etc (and sometimes with an even more complex system), instead of a simple 1, 2, 3, 4 etc. Advocacy is a difficult art, but it is possible for even a beginner to get that right, and common for the experienced to get it wrong. Simplicity, whether it be in plain numbering or clear unadorned language will get you a great deal further in advocacy than oratorical ornamentation, although (as Pascoe acknowledges) there is occasionally scope for a few judicious linguistic flourishes. But the best advocates are almost always those who somehow make everything seem simple. They make it look easy, even though it isn’t.
Pascoe’s book won’t make advocacy easy, but it will give young advocates plenty of guidance. It demonstrates his own point that brevity can be a virtue: you should be able to finish it in half an hour, including the extract from Julius Caesar in the final few pages (which might have been made even more interesting with Pascoe’s annotations of the rhetorical techniques deployed, as he says, in “unforgettable and glittering form” in Mark Anthony’s famous speech). But the value of a book is not to be measured by its length. Pascoe’s short primer is a classic. At just £5.99 – or £1.99 as an e-book – every aspiring advocate should read it.