“Solicitors prepare; barristers present” was the maxim within the legal profession for many years. As recently as the 1970s few solicitors appeared in the courts as advocates. Those who did appear usually restricted themselves to minor criminal offences in the magistrates court. Even though solicitors had a right of audience in other courts and tribunals, advocacy was undertaken by what was considered the elite performers at the Bar. Quite often solicitors obtained their first practising certificates knowing little or nothing about the rules of evidence and how to appear in court. The solicitors examinations did not cover this subject, presumably because it was a practical irrelevance. After all, barristers would be instructed to undertake any advocacy.
Has the situation changed over the years?
The Legal Practice Course often covers skills in advocacy but only at a basic level and usually only in the fields of criminal and civil law. For those planning to practise family law, a trainee’s first encounter with any form of court advocacy is when they are sent off to court “to sit behind counsel”. They pick up the workings of the court by observation and follow up on that experience when they are sent on another court hearing a few weeks or months later. Only after this does a trainee have the opportunity to consider whether court advocacy is for them. Some may be sent to court to represent a client on the basis that the attendance is “only a directions hearing”. By the time trainees qualify as solicitors they often have little information or experience to make up their minds on the extent of their future career in family law. The newly qualified solicitor is frequently given their first real court encounter on the basis that they will “either sink or swim”. Some law firms are conscientious in training their young family advocates, but many are not. Prospective advocates often hold back in gaining further experience due to a lack of confidence, sometimes caused by a shortage of training and mentoring during their early years. Instructing counsel is by far the easier option. Some solicitors even question the need to undertake their own advocacy at all.
Here I set out four reasons why solicitors should seriously consider being a family court advocate:
- Many firms expect their family lawyers to attend court as advocates as the financial rewards for the firm are greater. In legal aid cases fees are proportionately higher for advocacy than the amount allowed for preparation. Usually, one fee is paid for attending a court hearing and this goes to the advocate. Keeping advocacy fees in-house (as opposed to paying a barrister) is often the preferred option. The same principle applies to privately paying work. Most clients can’t afford to pay for both solicitor and counsel. There may be other reasons to instruct a barrister but financial reward is high on the list of reasons to consider doing it oneself.
- Familiarity with the case and the client. Advocates quite often deal with their family cases from the beginning. They see their client to give initial advice and follow this through to a court hearing. The solicitor becomes very familiar with the facts of the case and develops a close connection with their client. They should be the lawyer who is best placed to present their client’s case to the court. Furthermore, their client has had consistent dealings with the solicitor and has gained their trust and confidence. To pass the hearing to another lawyer, especially at a late stage, can be a disappointment to the client.
- Fulfilment. Once the advocate has acquired the necessary skills and experience in attending court as an advocate, the professional satisfaction can be enormous. To deal with a case and a client from beginning to end gives great satisfaction to the solicitor and also the client. This can be true whatever the outcome of the court hearing.
- Future career. Solicitors move on to other firms to gain further expertise and prospects. Many prospective employers consider advocacy skills and experience a highly valued commodity and an important asset to their firm. They will often give substantial credit to those who are able and willing to undertake their own advocacy. Job adverts in the legal press reflect this position.
Getting started as a family court advocate
It is undeniable that the more you appear in court, the more capable you become as an advocate. To coin a phrase, “practice makes perfect” comes into play, at least in theory. However, the well-used approach of sink or swim carries its dangers, not least for the client who is being used as an experiment in the art of advocacy.
Practice and preparation must be key to a lawyer becoming a better advocate. There are ways a potential advocate can prepare themselves for the task ahead and at an early stage. But what sort of preparation?
I have the following suggestions:
This can begin as a trainee and also after qualification. The obvious example is when you attend court with counsel or an experienced member of your firm. Ask or even beg to be taken to court so as to give you the opportunity to observe what happens before, during and after the hearing. Familiarise yourself with the case so you will know something about the facts. Watching negotiations whilst at court can be an excellent way of learning how things are settled or otherwise. Take a note of what is said by the parties, advocates and the judge who hears the case. The court hearing is likely to be in private so the chance to experience this will be limited. Ask questions of the advocates as to why things happen and the reasons for their actions. Ask why the judge has said what they has said. Be interested and inquisitive. Observe the words and actions of the opposing parties. Think through the case and ask yourself whether you (even with your comparatively limited knowledge) would have arrived at the same conclusion. Try to have a debrief after the hearing to clarify points you don’t understand. You could explore the possibility of sitting with a District Judge for a day. That would be an ideal way of seeing how the court system works and have input from a real expert.
Shortly after qualifying as a solicitor I met with an experienced lay magistrate to seek his advice. I asked him “What do you expect to see and hear when being addressed by an advocate in court?” He spent the next hour or so giving me his own personal views and observations as a magistrate. I went home and made a list of all the things he said. They were invaluable in my early years as an advocate and I still try to practise them today. I would recommend that you try to repeat this exercise. Many new to advocacy often have an abundance of colleagues around them who will readily share their own experiences. It is only a matter of asking them to help. Most will share their own stories with successes and failures and the odd horror story. You can learn so much from others for the price of a cup of coffee.
Know the process
When you arrive at court it will be assumed that you are conversant with the relevant law and procedure. Any gaps in your knowledge should be filled by you during your preparations. That is not to say you have to be encyclopaedic, but your understanding of the court process for your application is vital. Being familiar with the Family Procedure Rules (which apply in all family courts) is a starting point. The Red Book is an excellent authority which assists in most areas of family law and covers the law, procedure and case law.
Know your Case
Preparation is vital. This applies to all hearings: short or long, agreed or contested. Read the papers a couple of times and ask yourself the following:
- What order are you or your opponent requesting the court to make?
- Does the court have the power to make this order and what are the authorities?
- Do you or your opponent have the evidence to support the case in hand?
- How does your opponent’s case fit with your own case and where do they clash?
Having gone through this exercise, talk the case through with an experienced colleague. Have you missed anything? Take on board the wise advice given to you.
Your first appearance in court may be stressful and you will walk out of the court building feeling relief that the ordeal is over, but there will also be a great sense of satisfaction and achievement. And it gets better as time goes on.
Following the hearing, discuss the outcome with the same colleague as before. What could you have done to improve your performance and avoid the same mistakes?
And do the same next time.
Remember: An expert in anything was once a beginner.