An Introduction to Trial Advocacy

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Introduction to trial advocacy The history of trial advocacy cannot be correctly elucidated without a good understanding of trial advocacy. Formalists like Terence F McCarthy believe that trial advocacy entails the mechanism by which advocates become effective in trial proceedings.[1] They essentially limit the conception of trial advocacy to the formal teaching of courtroom forensics.[2] Yet on the other hand there are those who adopt a wider comprehension of trial advocacy to entail the daily skills of legal practice including the means of acquiring them. Trial advocacy as explained by Jeffrey S Wolfe covers not only the skills demanded of a lawyer in a courtroom but also the means of acquiring those skills, since ultimately those means contribute to the effectiveness of the advocate in the court.[3] Development of trial advocacy from the adversarial justice system Trial advocacy traces its roots from the confrontational adversarial justice system where advocates were expected to defend their clients zealously with utmost devotion and tactic.[4] Initially, defendants were not allowed to be represented by advocates in court. The adversarial system was introduced through section 1 of the Treason Trials Act 1696 where persons accused of treason were allowed limited legal representation.[5] Although there was no formal legislation allowing legal representation other than in treason trials, courts nevertheless allowed advocates to represent clients in court, hence the beginning of informal trial advocacy. At the same time, self representation quickly weakened because of the costs, technicalities and lack of legal knowledge. Thus, trial advocacy started to grow as a profession but the respect and economic prospects of a practitioner was pegged on his effectiveness to win trials in courts. To regulate the surging trial advocacy, White Clock in 1648 (then Law commissioner) laid down three main duties of trial advocates: fidelity, secrecy, and diligence to their clients. To illustrate these duties, Stephan Landsman depicted William Garrow as the advocate who quite justifiably defended clients “…with zeal and vigor, and used brutal and nasty tactics to advance a client's cause.”[6] Perhaps a better illustration of the then practice of trial advocacy is put by Henry Brougham in his narration that an “advocate had a sole duty to defend his client by all means, hazards and costs without regarding the anguish or devastation so caused to other persons, the society or even the state…”[7] In 1836, the Prisoners’ Counsel Act was enacted which formalized legal representation, hence underscoring the need for trial advocates. It is safe to conclude that trial advocacy at that time was inconsiderate to the advocates duties to the administration of justice. Sadly, several court decisions accepted this system of trial advocacy.[8] The rise of criticisms against trial advocacy Not so long after formal adoption of trial advocacy, several criticisms were raised and the role of trial advocates was doubted. George Sharwood for instance began by attacking the logic of Lord Brougham, stating that it is ethically wrong for a trial advocate to defend a client’s wrongful or immoral conduct-a view he shared with David Hoffman in his Fifty Resolutions in Regard to Professional Development.[9] Sharwood and Hoffman also influentially argued that the foremost concern of any advocate should be his duty to the court. They noted that trial advocates are officers of the court and their main concern should be to administer justice. In a similar vein, Lord Cockburn explained that trial advocates should endeavour to reconcile their multiple duties towards the client and the court but where such balance is too delicate to strike then the latter should prevail.[10] Another criticism raised was that nascent trial advocates were not only unethical but also incompetent and ineffective in trial advocacy. Several reasons for these defects were given. Expressing concerns over the growing trial ineffectiveness, Mr. Justice Clark blamed the haphazard trial-and-error learning of the law.[11] Likewise, Professor Tauro was disgusted that trial advocacy had been reduced to a “hodge-podge of learning experiences lacking overall logic, form, or direction.”[12] He regretted that the system of apprenticeship only served to transfer the errors to young trial attorneys. Further, he dismissed the case method of teaching law arguing that it overly focused on the abilities to think and analyse but with negligible attempt on how to apply the acquired knowledge. From the foregoing, a general consensus emerged that trial advocacy was jumbled with incompetence, unethical practices and confused duties of trial advocates which were founded on the erroneous methods of learning the law. Trial advocacy compelled judges to bear with ineffective trials and the public to consume poor legal services. It is for these reasons that changes in the art of trial advocacy became inevitable. The following part illustrates the modern trends of trial advocacy. Modern trends of trial advocacy Having described the general discontent in trial advocacy, we now turn to some of the key changes made in the United Kingdom. First, the law has been reformed to regulate trial advocacy. The Legal Services Act of 2007 established the Legal Services Board whose task is to ensure that the legal profession conforms to set professional standards of legal practice and that the law is practiced in the public interest with consumer rights at heart.[13] Also, the Solicitors Regulation Authority has enshrined competence standards for trial advocates. It provides for accreditation guidelines, quality assurance, and continuous professional development [14] To discourage the trial-and-error method, law school curriculums now provide practical skills through clinical education, judicial attachments, court simulations, moot courts, among others. Additionally, trial advocacy is now a key competence factor for all professional advocates. This has become a course taught in law schools. At the bar, continuous legal education is increasingly adopted. Law firms are now conducting trial advocacy trainings not only to their young attorneys but also as refresher to the seniors. Law Societies also demand that all advocates undertake continuous legal education in order to acquaint themselves with the new trends. [15] Conclusion In this essay, we have defined trial advocacy to entail not only the formal teaching of courtroom forensics but the overall lawyering skills that contribute to effective advocacy in court. We have traced trial advocacy from the development of the adversarial justice system where trial advocates were mainly focused on winning cases no matter the tactic. This led to several criticisms especially the multiple duties of a trial advocate, professional ethics, competence and the method of learning trial advocacy skills. As a result of these criticisms, several changes have been put in place including legal reforms, establishment of regulatory bodies, provision of practical learning methods to learn trial advocacy in law schools and the adoption of continuous legal education. Bibliography Clark, ‘The Continuing Challenge of Advocacy’ (1977) 16 Washburn LJ 243, 248 Landsman S, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’ (1989-1990) 75 Cornell Law Review 496-609 Langbein J, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors’ Faculty Scholarship Series Paper 529 (Yale Law School 314-265, 1999) <http://digitalcommons.law.yale.edu/fss_papers/529> Accessed 11 Feb 2015 McCarthy T, ‘The History of the Teaching of Trial Advocacy” (Keynote Speech, Stetson University College of Law’s dinner, 16 November 2007) Rogers S, ‘The Ethics of Advocacy’ (1899) 15 Law Quarterly Review 259-280 Smith T, ‘Zealous Advocates: The Historical Foundations of the Adversarial Criminal Defence Lawyer’ [2012] Law, Crime and History 1 Wolfe J, ‘Exploring Trial Advocacy: Tradition, Education, and Litigation’ (1980) 16 Tulsa LJ 209 <http://digitalcommons.law.utulsa.edu/tlr/vol16/iss2/3> accessed 11 February 2015
[1] Terence F McCarthy, ‘The History of the Teaching of Trial Advocacy” (Keynote Speech, Stetson University College of Law’s dinner, 16 November, 2007) [2] According to them, trial advocacy never existed in the ancient times because it was not formally taught as a branch of knowledge. In fact they refer to the early advocates not formally trained in law as masqueraders who only specialized in rhetoric. [3] Jeffrey Wolfe, ‘Exploring Trial Advocacy: Tradition, Education, and Litigation’ (1980) 16 Tulsa LJ 209 <http://digitalcommons.law.utulsa.edu/tlr/vol16/iss2/3> accessed 11 February 2015 [4] A comprehensive account of the pros and cons of the adversarial system is provided in Cristina Arguedas, ‘Duties of a Criminal Defence Lawyer’ (1996-1997) 30 Loyola of Los Angeles Law Review 11 < http://digitalcommons.lmu.edu/llr/vol30/iss1/2> accessed 11 Feb 2015 [5] John Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors’ Faculty Scholarship Series Paper 529 (Yale Law School 314-265, 1999) <http://digitalcommons.law.yale.edu/fss_papers/529> Accessed 11 Feb 2015 [6] Stephan Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’ (1989-1990) 75 Cornell Law Review 496-609 [7] Smith T, ‘Zealous Advocates: The Historical Foundations of the Adversarial Criminal Defence Lawyer’ [2012] Law, Crime and History 1 [8] Queen v O’Connell (1844) 7 Ir.LR 261; Kennedy v Broun (1863) [9] David Hoffman, ‘Fifty Resolutions in Regard to Professional Deportment’ [1836] < http://lonang.com/commentaries/curriculum/professional-deportment/> accessed 10 February 2015 [10] This debate is comprehensively discussed in Showell Rogers, ‘The Ethics of Advocacy’ (1899) 15 Law Quarterly Review 259-280 [11] Clark, ‘The Continuing Challenge of Advocacy’ (1977) 16 Washburn LJ 243, 248 [12] Tauro, ‘Graduate Law School Training in Trial Advocacy: A New Solution to an Old Problem’ (1976) 56 BULR 635, 636. He equated the ridiculously incompetent attorneys to dentists who could aptly identity a cavity but have no hint on how to fix it, hence putting the integrity of the legal profession at stake. [13] The Legal Services Board < http://www.legalservicesboard.org.uk> Accessed 12 Thursday 2015 [14] The Solicitors Regulation Authority <http://www.sra.org.uk> Accessed 12 Thursday 2015 [15] Ordover, ‘Law Firm Training Programme: Avoiding Trial and Error’ (1979) 5 Litigation 16, 17
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