Barrister for a day: I learned court advocacy

It’s not often I start the day with the words “May it please the court, my name is…” but, last Friday, I did. And then I spent the rest of the day trying to get an over-zealous Managing Director off charges of workplace bullying. The plaintiff was accusing this Managing Director of being aggressive and even violent towards him, making unreasonable work demands of him, and generally making his life a misery at work. And I was given the unenviable job of defending her in court. Or, at least, I was pretending to.

It was all an elaborate roleplay I was participating in as part of my Practical Legal Training course at the Queensland University of Technology, which law students in Australia complete after their university studies in order to be eligible to be admitted as legal practitioners. Last week was my first week of the course, an intensive week of learning practical lawyers’ skills like interviewing, negotiation and, yes, the court advocacy skills of barristers.

We were assessed throughout the week on small interviewing and negotiation exercises, but the week was leading up to our big, intense advocacy assessment on Friday, which was done through the medium of a mock trial to provide us the fullest possible experience of actual court advocacy. Actual practising barristers were bussed in from their busy city chambers to play the part of judges, to make sure we were doing the thing properly.

I don’t think any of us participating in this course were very coy about being utterly petrified of the prospect of having to get up in front of an actual barrister – who was assessing us – and argue a case like we were in court for real. Give me my Equity exams and criminal law essays, but please, O, please don’t make me embarrass myself in front of a barrister!

As it turned out, it wasn’t… actually… that bad… Now you mention it, it was actually rather fun. Cross-examining a witness is actually really fun. And the barrister who was presiding over my “hearing” was probably one of the chillest dudes I’ve ever met. Obviously very intelligent, but chill as anything, and put me and my fellow nerve-wracked students supremely at ease. I didn’t expect to have a good time on Friday, but I really did.

Sure, it would have been very easy to embarrass myself up there. We were given a lot of material for this mock case — witness statements and expert reports and documentary evidence — that we needed to be on top of. To stand up at the (mock) bar table and acquit ourselves satisfactorily, there was a lot of preparation we had to do. But, really, what we had to work with was minuscule compared to the volume of material actual barristers have to be on top of for their cases. If you were prepared enough, knew the material, and knew how you were going to argue your case, the only thing standing between you and advocatorial success on Friday was nerves.

Because it isn’t really as daunting as it looks — as long as you’re prepared. There’s a trick to doing it that takes a bit of time to get the hang of, but it’s not actually that difficult.

Ironically, I found most difficult the aspect of advocacy that requires the least amount of work on the part of the advocate: examination-in-chief. That’s where an advocate examines their party’s own witness. It’s about allowing the witness to recount what they saw, heard or experienced. But the thing about it is that you’re not allowed, as an advocate, to lead the witness in any way. You need to ask open questions which the witness can choose to answer in any way they like. If they don’t volunteer, in response to an open question, the information you’re trying to get out of them, then that’s it. You’re not allowed to “lead” the witness to the answer you want. You’ll just have to carry on without that information in evidence. I got called up a couple of times by my “judge” for trying to lead my witness (i.e. another student with the witness’s mock statement in front of them) when they didn’t give me the information I wanted from them.

I was much more comfortable with the other aspect of advocacy, cross-examination. That’s where you’re examining the opponent’s witness and trying to extract concessions from them that weaken their evidence. You’re allowed to ask leading questions in cross-examination, and in fact good cross-examination consists of nothing but leading questions. It’s about telling the witness something that contradicts their evidence and putting to them a series of closed questions, Socrates-style, that forces them to agree with you. I’m not exactly sure if it’s something I should take pride in, but I’m someone who’s always been very good at arguing, so I found that cross-examination came very easily to me. I was flattered to hear my judge praise my cross-examination technique, even if I was the only one he had to admonish for being too argumentative with the witness. I mean, I guess at least that’s better than not being argumentative enough?

Something I wasn’t surprised to discover about doing court advocacy is that it requires an ability to be flexible, to be adaptable, limber, lithe, supple, springy, malleable. In the words of the barrister who taught us our advocacy techniques, it requires having “soft knees”. That is to say, it requires being comfortable with the unexpected happening and being able to roll with it. Your witness doesn’t say what you want them to say — you need to work with it and carry on with your case without that evidence. Your opponent’s witness isn’t giving you the concessions you need — you need to plough on and find another line of argument to get them to concede something.

We were repeatedly told that, while writing out all the questions we wanted to ask a witness so that we could churn them out verbatim on Friday might be a reassuring safety cushion for avoiding choking on the day, it was inadvisable because a witness often won’t say what you want them to say and we needed to be prepared to change track when that happened without getting flustered. It happened to me a number of times — I’m sure it happened to everyone.

As it happened, I was quite comfortable with this. I’ve always been the kind of person who’s more comfortable with improvising and allowing myself the space for flexibility over planning to the last detail and risking being discombobulated when something scuppers my careful plans. It’s how I used to approach exams and essays in university. It’s how I like to write: I never start writing a blog post with anything more than the vaguest plan of what I’m going to say, and it never stops me from piecing together upwards of 1,000 words that I — as they say — make up as I go along. Hell, it’s how I approach life itself. I’m just that sort of person — an improviser rather than a planner.

All in all, I thoroughly enjoyed Friday. I don’t think there was anyone who didn’t end up enjoying playing at being a barrister on Friday on some level. I was pleasantly surprised to find that, not only did I enjoy it, but that I was actually quite good at it — even if my examination-in-chief technique still needs some work. I wanted to study law originally because I wanted to become a barrister. My ambitions now aren’t as simple as they were when I was 17, and I’m questioning whether I even want to pursue a career in law at all. But that said, from this experience, this nibble-sized taste of being a barrister, if my whimsical teenage dream of being a wig-toting QC in the High Court were ever to come to pass, I’d like to think I’d have a good time doing it, and that I have what it takes to be quite good at it, too.