ADVICE TO YOUNG ADVOCATES.

Here in the street poor Juvenis

May raise his head and proudly trudge

Alongside Judex—judicis

The Third Declension—Judge.

_Pater’s Book of Rhymes._

In England the legal profession has two branches. There is also the

root of the matter, but that is seldom referred to. These two branches

are called—(i.) The Upper Branch, and (ii.) The Lower Branch. In great

affairs the Lower Branch tells the Upper Branch what it has learned about

the case from the client, and the Upper Branch tells the Court what it

remembers of what it has been told by the Lower Branch. The advantage

of retaining these separate branches is that where error occurs it is

difficult to assign responsibility therefor. The Upper Branch learns

advocacy by passing examinations and eating dinners; the Lower Branch

by means of further and better examinations and fewer dinners. Those

rules of advocacy that have not been learned by that method are acquired

afterwards, if at all, by practical experience in the Courts of Law at

the expense of the client.

To offer advice to members of the Upper Branch of the Profession on the

Art of Advocacy would be unseemly, and these hints are intended—merely

as suggestions made in the friendliest spirit—for the Law Student of the

Lower Branch who proposes to take up advocacy in those inferior Courts

which are open to him. Long experience of sitting as Judge in an inferior

Court has led me to believe that it is not necessary or convenient that

the advocacy should also be inferior, and I humbly commend this point of

view to the younger members of both branches of the Profession.

Perhaps the most important Court from the young solicitor’s point of

view is the County Court. A solicitor is allowed to act for a client

in a County Court. When he is acting he has what is called a right of

audience. This does not mean that all he says will be listened to by

the audience, even if it be uttered in an audible voice. Moreover, the

advocate’s right of audience must not be confounded with the rights of

the audience themselves, who are always entitled to leave the Court if

they are bored. For this purpose the Judge is not “audience.” He is

bound to go on sitting, and ought to listen. The commission of Judge is

_oyer_ and _terminer_, but in actual practice in County Courts you will

find that Judges are more ready to dispense justice _terminando_ than

_audiendo_.

Law students who have afterwards risen to eminence in their profession

have sought to practise advocacy in their earlier years by making

appearances at the local Police Courts as defendants. Much of the law of

the motor-car may be learned in this matter—and much that is not law.

The young enthusiast will find, I fear, that the method is an expensive

one, the legal educational value of the magistrate’s _dicta_ is slight,

and the opportunities allowed by the magistrate’s clerk to the defendant

for the practice of advocacy wholly unsatisfying.

Even in later life the young solicitor is not advised to begin his career

as an advocate in the Police Courts. Criminals have very little cash,

and ought not to receive much credit. As to licensing matters, these

are wisely placed in the hands of matured and experienced advocates.

A licensing Bench has always made up its mind—which is divided into

two parts—long before the case is called on, and the advocate’s duty

is to say nothing that could conceivably disturb the considered

judgment of the Court. This is a delicate task not often entrusted to

beginners, and although it is well worth while to study the technic of

some of the masters of the game, yet it is to be remembered that only

with a licensing Bench, and perhaps before some of the more remote

Ecclesiastical Courts, is this style of advocacy required. The young

solicitor will probably find more scope for his abilities as an advocate

in the County Court than before any other tribunal. The Judges of these

Courts are far more tolerant of advocacy and less dogmatic on legal

questions than lay Magistrates, and are neither as omnipotent nor as

omnivorous as Magistrates’ Clerks.

Thus much for advocacy in general. “I will now,” as Lord Chesterfield

says, “consider some of the various modes and degrees of it.” I assume

that you are a young solicitor entrusted by some hopeful and friendly

client with a County Court Action. Your first duty as a solicitor

advocate is to get something on account of costs. Do not omit this common

opening. A gambit here is a mistake. The fact of your client being a

personal friend makes it the more necessary. Many a friendship has not

survived a fourteen days’ order to pay a debt and costs. This sum on

account may prove your real and only solace (_solatium_) when you hear

the judgment.

Always consider yourself before your client. Your client is here to-day

and gone to-morrow, whilst you, I hope, may remain. Proper pride will

instinctively teach you when to consider your own interests rather than

your client’s. Remember Bacon’s saying that “Affected dispatch is one

of the most dangerous things to business that can be.” All dispatch

is indeed alien to the interests of your profession, whether affected

or otherwise, but there are many forms of affectation which you will

find useful to your advancement. I would not have you pretend to forget

the names of the earlier cases you obtain, though I do not advise you

to take cognisance of the Court number of your case. If you knew this

it would save the Court officials trouble, and they are paid to take

trouble. Later in life you will find it well to call the Defendant by

the Plaintiff’s name and _vice versa_. It suggests to the Court and the

audience that you have too many cases to attend to, though it will not

gratify your particular client.

In examining a witness, never let him tell his own story in his own

way. Many a case is lost by this. The leading question is a sign of

ripe advocacy. But do not overdo it; remember over-ripeness is rotten.

The seniors at the Bar are called “leaders” from their habit of using

this form of question unless restrained by quasi-physical violence.

Cross-examination is not merely the art of making the witness cross. If

your opponent’s witness proves nothing against your client, cross-examine

vigorously. By this means the truth is often brought out and justice is

done. During your cross-examination notice carefully whether the Judge is

taking a note of the answers you are obtaining, or writing letters. In

either case do not prolong your cross-examination, for if the latter it

is useless trouble, and if the former it is probable you are eliciting

answers that will be used against you. In re-examination, endeavour to

lead your witness once more through his proof. It is an excellent test of

judicial complacency.

The rules of the County Court are to be found in books, and need not

therefore be committed to memory. Indeed, most law can be found in

books by those who know where to look for it. Yet it is ill to stir the

green mantle of the standing pool of law yourself if you can persuade

another to do it for you. A slight knowledge of the first principles

of elementary law will always be welcome in any Court. You may evade a

detailed study of the more intricate points in your case by insisting

that it falls within the rule laid down in one of Smith’s Leading Cases.

For this purpose, however, you should learn at least the one rule you

propose to quote. After all, the Judge has to decide the law, and ought

to know it. The legal presumption is that everyone knows the law—this

includes Judges. In cases under the Workmen’s Compensation Act, be

careful how you quote a decision of the Court of Appeal. It may not have

gone to the House of Lords, but if it did it is well to find out what

happened to it when it got there. If an appeal to the House of Lords is

pending the current odds against the legal value of the existing decision

will be found in any sporting paper. If, during your argument, the Judge

points out to you that there is a leading case deciding exactly the

opposite of what you are arguing, ask him, with pained irritation, to be

patient, and tell him you will distinguish it presently—but do not try to

do so. Never give yourself away unnecessarily, rather give your client

away, and you will find that generosity of this kind is never forgotten.

Allow the Registrar’s clerks to fill up for you the prolix and difficult

forms in use in the County Court. They are not solicitors, and are

therefore less likely to make mistakes in the work. If, however, a

mistake is made you can always explain to the Judge how it arose, and

you will not be blamed for it. In any case, where the law is really

obscure and difficult, agree with your learned friend to leave the

matter entirely to His Honour. By this means His Honour—if he makes no

objection—will have to hunt up the authorities, and this will save you

and your learned friend much useless labour, whilst the decision of the

Judge will be far more valuable to your client. If you lose your case and

your client loses his temper, blame the Judge, and urge your client to

write to one of the Government departments—it does not matter which—to

make a formal complaint of the Judge’s conduct. Government departments

enjoy correspondence, and will treat your client’s letter with the

respect and attention it deserves. On days when county cricket matches

are being played in the neighbourhood of the Court, and generally on

fine summer afternoons, your arguments will be the more admired if they

are brief and occasionally to the point. If the case you have lost is

for an amount of over £20, nevertheless ask leave to appeal. You do not

want leave, but the Judge may not remember this, and may either grant or

refuse it. In any case it gives you what you are probably longing for at

that particular moment—an effective exit. Finally, remember that however

genuine your contempt for the Court may be, you conceal it until you get

outside—otherwise, seven days.

If the law student will peruse these suggestions and act upon them,

and assuming him to be, as no doubt he believes he is, a young man of

clear, strong, subtle intellect, of sound judgment, quick perceptions

and brilliant forensic abilities, I can assure him that there is nothing

between him and a very considerable and remunerative practice as an

advocate in the County Court in matters which are not of sufficient

importance to “stand” Counsel.

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