Week Nine Flashcards
(22 cards)
Advocacy definition
Advocacy is: the role of a legal advocate is to assist the client in continuously reassessing what they need and want (and why), in light of what is possible and what the costs may be, and then to advance that goals.
effective advocacy- preparation
- Be prepared
○ Know the facts
○ Know the law
○ Explore the range of options and avenues for actions
○ Develop a clear and logical argument.
○ Collect relevant evidence
○ Know the other side’s case and what arguments they might have.
effective advocacy- engagement
- Be engaging
○ Be mindful of the audience
○ Engagement is the key to persuasion.
○ Get the audience to participate in the process of communication, they are understanding, and they are actively considering and responding to your argument.
effective advocacy- written advocacy
- Written advocacy
○ Be short
○ Be direct
○ Be persuasive
written advocacy- logic
- Be logical
○ Conclusion must be supported by arguments
Each argument needs to be supported by evidence
written submissions allow the reader to…
○ See the issues in sharp focus
○ See the issues in full context
○ Consider the arguments ahead of oral argument and identify vulnerabilities.
○ Contextualise oral arguments
○ ‘provide a buttress in maintaining the structural integrity of argument during oral presentation’ - Margaret McMurdo.
advice for written submissions
○ Should be carefully proof read. Avoid sloppy punctuation and unnecessary complicated sentence structure.
○ Submissions must be accurate, succinct and grammar correct.
○ KISS (keep it simple)
○ ERR (edit, review and refine).
○ Statements of law and facts need to be accurate.
○ Acknowledge the alternative arguments.
○ Do not quote large passages
○ Do not paraphrase statutory language, keep the word and phrases of the act precise.
○ State the legal principle relied upon, cite the authority and explain its relevance to your argument.
○ In discussion of cited cases it is ordinarily unhelpful and poor advocacy to set out the facts of the case at length.
Make sensible concessions.
how to improve oral advocacy
- Don’t be boring
- Engage the audience
- Know the audience
- Don’t be dramatic
- Use humour and narrative where appropriate
- Speak clearly, logically.
- Stay on point
- Ensure you are clear and concise
- Be physically present
- Be confident
- Use your voice
- Pace yourself
- Use silence strategically
- Make eye contact
- Be interesting
Harness emotion
adversarial advocacy
- Premised on winning
- Characterised by position taking, focus on legal rights, maximising victory.
Generally only used in litigation
- Characterised by position taking, focus on legal rights, maximising victory.
non-adversarial advocacy
- Characterised by
○ A deeper relationship with the client
○ Helping the client engage in their conflict and coming up with strategies to manage.
○ A focus on negotiation
○ Considering the interests of the other side
○ Understanding the best outcome
An adversarial role that appreciates relational, emotional and psychological issues.
lawyers as advocates
- Advocate on behalf of the client
- Need to refine the way the argument is presented based on the situation.
- To do so
Learn a variety of important advocacy skills
advocacy and a positive professional identity
- Advocacy can support a positive professional identity for lawyers because
○ Legal advocates help people who don’t have the knowledge, or expertise.
○ Advocates negotiation and argue for people, we speak, act and write on their behalf.
○ We help people pursue their needs and interests, legal rights and entitlements.
○ We support them in addressing their concerns and in achieving dignity through empowerment.
there is knowledge that overlaps in adversarial and non-adversarial advocacy
- understanding the law and legal rights
- understanding procedure and client roles
- preparation and gathering of relevant information
- understanding of the client
- communication skills
- following client’s instructions
discrete negotiation skills
These include
- preparing an ,effective opening statement in negotiation or mediation, which. adopts ‘a firm yet: not overly positional tone;
- matching the appropriate informal process to the case; displaying confidence and openness; and thinking outside the “box” of conventional, legal. solutions in developing creative problem-solving skills
conflict resolution advocacy
- Conflict resolution advocacy is about focusing more of counsel’s energy on the creation of good settlements rather than good positions, and developing new knowledge and skills to support this new and enhanced focus of their work. (22)
- Conflict resolution advocacy is less about aggressive posturing and game playing and more about working with the client to diagnose their needs and priorities, and staying open to the creation of new pathways to meet these.
conflict resolution advocacy builds on some traditional skills and knowledge, notably information assimilation, legal research, effective oral communication, strategic planning, and insider knowledge, which ‘are core elements of effective trial advocacy
- Conflict resolution advocacy is less about aggressive posturing and game playing and more about working with the client to diagnose their needs and priorities, and staying open to the creation of new pathways to meet these.
non-adversarial advocacy characterisation:
○ A deeper and closer working relationship with the client
○ Helping the client engage with their situation.
○ Coming up with strategies that focus on negotiation.
○ Considering the interests of the other side and potential interests external to the matters.
○ Understanding what the best outcome might be
○ Appreciates relational, emotional and psychological issues.
opening statement features
- Opening statement should be clear and should outline the argument. Should be well-structured and focused. Should present both your case and the cases that are to be used in support (precedent).
examination-in-chief
- In the examination-in-chief, there is a chance to ask questions to your own witness. Witness should give clear evidence and speak with confidence and assurance. Leading questions are not allowed.
cross-examination
Cross-examination is an opportunity to ask questions to the opponents witness. Chance to undermine the case, often a very adversarial form of advocacy.
tips on cross examination
○ Keep it to four points
○ Strongest points at the beginning and end
○ Anticipate the answer before you ask the question.
○ Do not write a script
○ Do not argue with the witness
○ Do not ask open questions
○ If the witness says something favorable to your case in examination-in-chief, ask them to repeat in cross-examination.
○ Put your version of the case to the witness and have them accept or deny.
closing statement
Closing statement should summarize the evidence and law that support your case
legal practitioners have a duty to
○ Obey the law
○ Obey their client
○ And obey the courts and proper administration of justice.
- A lawyer cannot break the law, or breach their duty to the court. - If a conflict arises between their duty to the client or the court, the court prevails.
