AGILITY
Ben Katekar interviews Peter Jacobson QC about the attributes of a stellar advocate.
Mr Jacobson was called to the Bar in 1979 (after spending some time at my old firm, Allen Allen & Hemsley, as it was then known). He took silk in 1992 and was the last person appointed Queen’s Counsel in New South Wales.
Mr Jacobson was appointed a Judge of the Federal Court of Australia in 2002 where he served until 2015.
Mr Jacobson is now a mediator. Whilst I have not had the opportunity to retain Mr Jacobson as a mediator, I have heard repeatedly and on impeccable authority that he is absolutely superb. Mr Jacobson was a leader at the Sydney Bar and was an outstanding jurist before whom it was a pleasure to appear.
Mr Jacobson’s view is that an outstanding advocate is agile. Trials are often unpredictable and the stellar advocate is able to adjust seamlessly and rapidly to the changing landscape.
Peter Hely QC’s first rule of litigation
The journey to achieving agility starts with Peter Hely QC’s first rule of litigation.
The overriding consideration is brevity. You must be able to put the essence of your argument succinctly and clearly.
To achieve this, Mr Jacobson recommends that you adopt Peter Hely QC’s first rule of litigation: get yourself away from all the mass of paper and the detail and write down in one to one and a half pages the essence of your argument.
You may not use the document at all – although you may in opening – but creating it enables you to transcend the detail and put the essence of your case with brevity and precision.
Ability to change path at moment’s notice
An advocate has to be able to adjust to the changing landscape of the trial. This requires the advocate to have flexibility.
Once you’ve worked out your opening, how you’re going to examine or cross-examine particular witnesses and run the trial, you then need to be able to stand back from it. You can’t put yourself in a position where you are locked into a particular script because as sure as anything your opponent will throw a hand grenade into the arena and your chosen path will have been exploded.
You have to be able to move with these seismic shifts as they happen – and they happen frequently.
The “Peter Hely rule” of collapsing your case theory into 1½ pages helps you with this because you will have the essential components of your case at your fingertips, right at the forefront of your mind.
In order to achieve agility you first need to be fully prepared and have a clear idea of where you are going, what evidence you expect to get from the witnesses and how you plan to present it in closing. You must then transcend that path and carefully refine and think through your case theory. Then you will be in more of a position to react swiftly, effectively and with precision to the customary but unexpected explosion in the Court room.
Master the detail
Being brief does not mean “dumbing it down”. It is critical that you are across the intricacies and the detail.
Brevity and clarity are a reflection of thorough preparation plus the application of critical thought and judgment so that the true essence of the case can be presented.
There was a time when judges read nothing before they came on the Bench and had to rely on counsel to explain it to them. Even then, although it would take a lot longer to explain the case to the judge, you would still need to be able to express it in the most clear and succinct way you can.
This requires assimilation of the detail so the issues can be broken down in a sensible manner. Explanation against a set of clear issues will help make it digestible.
Engagement
Engagement with the Bench is terribly important. Your task is to explain the matter, and your argument, to the judge so that it is fully understood. A debate with a judge will assist the judge in understanding your case, and assist you in understanding what the judge is thinking and where he or she is leaning. Failure to engage deprives you of the opportunity to move the judge, which is at the heart of oral advocacy.
For a judge, it is very important to be able to rely on counsel. If what you say is not digestible, you run the risk of losing your case. If an advocate stands up and waffles, the judge will stop listening. Then the judge is more likely to listen to the other side. You have done your client a disservice.
It is very difficult to engage if you are still “lost in the paper”. This brings us back to Peter Hely’s first rule.
Appellate advocacy
David Jackson QC is a great appellate advocate – one of the greats. Mr Jacobson had the pleasure of appearing with him as a junior in trials and once on appeal. What struck Mr Jacobson the most about David Jackson was his brevity, his ability to express his propositions clearly and at the same time engage with the Court.
The keys to effective appellate advocacy overlap with the points already made: be brief, have a concise case theory, be flexible and agile, master the detail and engage with the Bench. Although there are less surprises in appeals – if there is a surprise it’s usually because your opponent is desperate.
Engagement with the Bench is critical in appeals. Mr Jacobson has often seen advocates reading from appeal books, reading from cases, lost in the papers because they do not have the right things at their fingertips and haven’t transcended the material. This robs the advocate of the opportunity to engage and, in turn, persuade the Bench on the critical issues. It displays a lack of preparation.
And of course, brevity and clarity are essential.
David Jackson QC is a master of this art. He always has his cases prepared to the nth degree and has his path set clearly before him. He engages with the Bench; looks at them and talks to them. He tells them where he is going and tends not to get taken off track.
Crunch the appeal books
One of the secrets of good appellate advocacy is to “crunch the appeal books”.
You have to be able to get the Court into the material as quickly as possible.
In a typical appeal, there are three or four volumes of appeal books. Most judges now come onto the Bench having at least read the judgment below and the written submissions. But they will often not have read the material in the appeal books.
So as an appellant, the clue is to get the Court to understand the points you want to make. Identify where the Court below was wrong. Show the reasoning process and explain what you say is wrong with it.
Then you need to take the Court to the critical pieces of the evidence in the appeal books. The judges are unlikely to have read the transcript, the exhibits or the affidavits. Show the Bench those parts of the appeal books that are germane to your case.
It’s critical to do this briefly and with the utmost clarity. You don’t run through the judgment below then start reading the affidavits; it’s not a re-run of the trial. You need to articulate the points you contend for and take the Bench to the parts of the material that make out your case.
As a respondent, the Court should have been taken to all the relevant material before you stand up. It’s always a mistake for a respondent to try to go back over it – you will lose the attention of the Bench.
Instead, you must respond quickly to the material that’s put against you.
As a respondent, you can usually see which way the wind is blowing from the questions given to the appellant’s counsel and the knowing looks of the judges.
You need to zero in and address the concerns of the Bench. Get as quickly as you can to what you think is troubling the Court, or what you think are the good points of your opponent’s submissions.
As appellant, use your advantage
An appellant has the advantage of being able to attack your opponent’s weakness. Cut them off if you can.
Questions from the Bench
The “Peter Hely rule” is helpful when handling questions from the Bench. When a judge addresses a question at you, your 1½ page case theory can give you the ability to recall the force of your case quickly without having to waffle around the point and regurgitate what’s in your written submissions. It helps you stay on track and relate your answer to your case theory.
There are two views as to handle questions from the Bench that take you “off track”.
One way is to deal with the question in full then and there even though it takes you off the path you’re on. As David Bennett QC says, a question from the Bench can be a gift, and it is best to address it squarely. The difficulty you then get presented with is getting yourself “back on track”.
The second way is to give the Court an answer. Give the essence of your answer as quickly as possible and say “I was going to deal with it later. Would that be sufficient? I may need to expand upon it later. Can I come back to it then?” This can be an effective technique but may not always work. David Jackson QC can always get away with it but many others will not.
Mr Jacobson thinks this second way is the ideal way – so the thread of your argument is not diluted. The art of achieving this is to be able to deal with the question as effectively as you can by giving a direct answer that you can connect to your overall case theory with precision. Then indicate to the Bench that there’s a lot more to it than what is needed at that point of the argument.
Mr Jacobson does not recommend responding: “I will get to that later”. It tends to irritate the Bench.
A question is not always a gift
When Mr Jacobson was a junior he was led by Alec Shand QC in a trial (although Mr Jacobson recalls doing a lot of the hearing as Mr Shand never used to stick around for very long as he was always doing lots of other cases). His opponent was an eminent QC who was later a Court of Appeal judge – who for the purposes of the story shall remain nameless. This QC was leading Tom Jucovic (now QC) and various others. The judgment was delivered after a very long delay and once issued seemed to have a number of difficulties with it. Mr Jacobson had lost but they appealed, one of the grounds being that there were insufficient reasons.
The appeal Bench was John Lockhart, Trevor Morling and Ian Shephard. Justice Lockhart asked the QC “If a litigant loses a case, is he entitled to know the reason?”, to which the QC responded “Oh yes of course”. Justice Lockhart replied “Isn’t that the problem here? The judgment doesn’t tell Mr Shand’s client why he lost.”
Mr Jacobson won the appeal. Justice Lockhart had set the QC a trap. The QC wasn’t quite ready for it. Perhaps he should have been. Such are the demands on an appellate advocate.
The superlative advocate
Mr Jacobson considers that what sets an advocate apart is his or her ability to deal with surprises – from the Bench, from your opponent or from a witness.
The outstanding advocates were always able to deal with that and deal with it in such a way that made the answer to it seem easy and straightforward. No groping around for an answer.
It requires a huge amount of preparation plus an agility of mind. To be able to think on your feet.
Mr Jacobson recalls that the best cases he ran as a barrister were those in which he was able to “get his head out of the paper”
Mr Jacobson’s favourite Peter Hely story
Mr Jacobson considers that few advocates compare to the late Peter Hely QC.
Mr Hely was appearing as junior to Tom Hughes QC. Mr Hughes was cross-examining a witness who was being particularly intransigent. Mr Hughes was not able to elicit the concession he was seeking – concerning whether or not the witness had voted in favour of a particular resolution at a meeting, or against it. This guy was juggling around, tippy toeing, dancing around the issue. Mr Hughes was getting frustrated and the tension in the Courtroom was immense.
Mr Hely took out a small Post-It note and wrote a question on it – in his tiny but perfect handwriting.
Mr Hughes took the Post-It note and theatrically held it out in front of him at arm’s length. The question was: “Do you usually vote in favour of a resolution to engage in a course of conduct with which you do not agree?” The answer was, of course, “no” and Mr Hughes had what he needed. Bang: on the floor with one punch.
So simple, so concise, so deadly. A brilliant piece of advocacy.
Life as a Judge
After Court each day Mr Jacobson would review the evidence of the day including the transcript. But it’s virtually impossible to read all the transcript every day. So Mr Jacobson would make notes during the day and, when reviewing the transcript, try to find those passages. He would then highlight them. He would use the highlighted passages when writing his judgment – he would not re-read the transcript.
This applied to both trials and appeals.
This is a reminder to all advocates that the Courtroom is a theatre. The judge is more likely to remember things if they are communicated in an engaging and persuasive way.
For your critical points, it will help you to ensure that you have the judge’s attention. This will maximise the prospect that the judge will remember the event, make a note and highlight the passage in the transcript – so it won’t get lost when it comes time to write the judgment.