BEASTLY ADVOCACY IN MOTION

BEASTLY ADVOCACY IN MOTION by Alexander W Street SC Version XVI1I: 9 May 2014

Table of Contents A. Nature of the Beast B. When is the Beast unleashed? C. Recognising the Beast D. Training the Beast E. The hallmarks of the Beast F. Know the Beast G. Anticipating the opposing Beast H. Grooming the Beast I. Feed the Beast J. Taming the Beast K. Advantages of a script for the Beast L. Colouring in the Beast M. Framing the Beast N. Beast in battle O. Beast biting the statutes P. Anatomy of the Beast Q. The Beast in Court R. The chameleon nature of the Beast S. Beast on the line T. The Beast and the Paint U. The Beast on show V. The Beast in context W. The winning Beast X. The Beast in opening Y. Beast’s harness in opening – Criminal Z. Beast’s harness in opening – Civil AA. Own the Beast BB. Beast in perspective

A. Nature of the Beast • The art of persuasion • Compelling use of logic • Effective communication • Intellectually appealing propositions • Interesting rational argument • Identified objectives within the paddock of strategy • Inoculated by integrity and ethics

B. When is the Beast unleashed • There is a role for advocacy from the moment a dispute has crystallised in which a resolution is to be achieved by a decision maker or by consensus • This means that the first correspondence should be enhanced by the art of the advocate • Wherever there are persons to be persuaded, be it decision makers or the opposing party’s clients/team, the artistic work of the advocate should be employed

C.1 Recognising the Beast • Advocacy is not simply oral presentation. There are some senses that for reasons of decorum the advocate excludes • Advocacy is the combination of skilful and economic communication that engages and persuades the target mind(s) • Advocacy includes the unstated impact of learning, command, style and presence • Silence can be effective advocacy

C.2 Recognising the Beast • The advocate paints with voice, body and appearance, trying to capture through eyes and ears the mind of the listener, or where in writing the mind of the reader • Measured sincerity and conviction can be infectious. • Determination, within ethical constraints, to succeed • Confidence and polish without arrogance • Humility dominating hubris • Calm and likeable • Engaging and responsive • Conversational in manner

D. Training the Beast • As this is a dynamic art the quality of the work can only be improved by trying to master and refine your comprehension of the key principles and tools of advocacy • Constantly endeavour to improve the efficacy of brushstrokes that you wield • No great artist ever sees the conquest to excel as being over or the capacity to improve as being exhausted • The mirror revealing our own weaknesses or deficiencies in the creation of the artistic work of the advocate is always seen by others and the desire to self-improve should be constant.

E. The hallmarks of the Beast • Integrity (which includes candour) • Clarity • Logic • Brevity

F. Know the Beast • Preparation • Reflection • Refinement • Lineal progression • Critical / reflective / creative / lateral / abstract thinking • Forming issue judgment – techniques, methodology, theories, interpretation, assumptions, accuracy • Research (law, facts, expert areas, witnesses, court)

G. Anticipating the opposing Beast • Identify the opponent’s strengths • Prepare persuasive answers • Anticipate, if appropriate, how those opposing contentions can be dismissed • Anticipate, if appropriate, those opposing contentions that require evidentiary / pleading answer

H. Grooming the Beast • Appearance and control are important • Avoid distractions of style, depiction of disorder, flustered surprise, or team panic • Have the papers properly organised • Have the passages or paragraphs readily accessible (copies for opponent) • Have the books and passages readily to hand • Quality not quantity

I.1 Feed the Beast • Master the whole of the factual material • Read and re-read the critical documents • Identify the real problem and the real issues • Identify the ambiguities of meaning, inferences, specialist terms, matters of practice • Distil issues into fact and law • Consider any conclusions of fact that must be dissected • Identify any other currently omitted potential decisive issue

I.2 Feed the Beast • Formulate and check form of orders-within power, properly framed as final or interlocutory, certainty and consequences • Work up a sound and clear comprehension of the legal issues • Work up and prepare the potential evidentiary issues • Work up and reflect upon the adequacy of the pleadings, particulars where applicable, damages components and appropriateness of relief sought • Review whether new causes of action or defences should be added or replies amended • Reflect on res judicata, issue or Anshun estoppel

J.1 Taming the Beast • Prepare the salient facts – chronology – dramatis personae • Prepare the written outline of selected winning topics and sequential propositions • Prepare a statement of issues summary • Prepare a list of objections • Prepare the intended final address • Prepare in writing the oral opening

J.2 Taming the Beast • Prepare the for the unexpected by reflecting on the merits and how they might be shifted • Prepare for the opponents evidentiary gaps and weaknesses to be cured by devising the next line of attack • Prepare for curing your opponents objections • Prepare the preferable order and sequence of witnesses and tender • The two “can” prinicples

J.3 Taming the Beast • Collate the documents for tender • Prepare for each witness’s evidence in chief • Prepare your witnesses • Prepare for each witness in cross examination- constructive/destructive • Maintain the housekeeping list

K. Advantages of a script for the Beast • Focus • To avoid repetition • To avoid omission • To enhance flexibility • To return to structure of the argument • Preferably point form • Monitor/ mark off

L.1 Colouring in the Beast • Remember in words you are painting a picture • Give attention to the detail of the scene that lends emphasis to the perception you wish to convey • Reflect on competing larger pictures – superficial dangers • Test critical steps in reverse • The clearer the image, the clearer the message • Disarming simplicity

L.2 Colouring in the Beast • Be selective in the use of colour, florid jury openings and grandiloquence can pitch the case too high and by the very nature of the width of proposition open up avenues for material attack • Eschew humour – except in enthusiastic acknowledgment of that from the bench • It is submissions on behalf of the client that you are developing – not personal opinions or at large revelations as to your dull thinking process

M. Framing the Beast • We think metaphorically • Unpack the unconscious conceptulisation • We perceive issues by frames of value and content • Frame the issues – episodic or thematic – to shift understanding

N.1 Beast in battle • Engage the listener • Listen to the listener • Eye contact • Welcome the judicial intervention and use the opportunity to provide both a responsive answer and rebuild the essential proposition • Avoid repetition on the basis of your ineptitude and try to reformulate • Avoid disengaging conduct • Selective and well thought out use of analogy or extremes

N.2 Beast in battle • Syllogistic logic. If … then • Inductive logic. Why … because • Deductive logic. Assume … therefore • Metalogic. What are the logic system components or properties • Shift the equilibrium – by refining the vision of equivalence through synonyms and antonyms • Flawed logic-empty legal rhetoric – by opponent • Address real issues-forensically distinguish material/immaterial

O.1 Beast biting the statutes • Identify the relevant version as at the applicable date • Master the history of the amendments, their commencement date and transitional provisions • Consider the potential competing interests • Identify the purpose- the public interest – the balance • Consider the policy implications • Identify any supporting secondary material • Consider the provision as a whole, the preamble and work in the relevant definitions

O.2 Beast biting the statutes • Consider surrounding provisions • Consider the structure of the statute as a whole • Unlikelihood of absurd or no meaning • Consider other provisions within the statute using the same language • Consider the relevant Interpretation Act provisions • Identify the leading authorities • Identify analogous statutory provisions and the leading authorities

P. Anatomy of the Beast • How can you label the parts, being the essential issues in contest • Is there a higher level of useful description • Is there a narrow definition of forensic advantage • Is the relevant organ in the nature of an issue of substance, form, process, procedure, practice • How can you start from an interesting level of legal principle or insightful suggestion of competing cause – that drives your case forward and stalls your opponent’s • Is there a theme that weaves credibility / destruction

Q. The Beast in Court • Extract and copy into each brief and comply with the applicable Practice Notes / Directions • Identify the statutory source or rules applicable to each category of relief claimed • Keep in mind any statutory duties – imposed on the court, the legal practitioners and/or the client (see s56(2), (3) and (4) of the CPA; Federal Court of Australia Act s37M – s37P) and sanctions (see s99 of the CPA) • Work with the Court (as far as practicable) and respond to the judicial breeze

R. The chameleon nature of the Beast • Versatility of style and substance is essential • Flexibility is an adornment • Avoid the monotone or the lecturing martinet • Fearless and forceful persuasion is achieved by the power of cogent reasoning • Fight the issue, not the person • Conflict at the Bar table is unendearing • Avoid insolence by expression or otherwise • Leave scope for witness escape where the wound will suffice

S. Beast on the Line • The golden thread of the law – a just and fair line • The collected strands of thought into the strong twine of clear sequential propositions • The line of legal process – from pleading to final orders • The line of the advocate – upon which reason its compelled to follow to success • The distraction of breaks, or branches, in the line • Unravelling the opponent’s knots or cutting opponent’s line • The shortest line to resolution – the straightest

T. The Beast and the Paint • The blobs of paint in inches of paper and trolleys of folders • Reduce the blobs to the critical picture, where is the gold • Don’t mix the blobs of paint in Court • Select the Mona Lisa – discard the etchings • Let the painting dry

U. The Beast on show • What are the material incontrovertible facts • What are the critical contemporaneous records • What are the critical consistent facts • What are the critical inconsistent facts • What does common sense dictate • Weigh the competing interests of justice • Assist in the case management

V. The Beast in context • What is the surrounding context • Are there intertwined relationships or relevant earlier history • How does surrounding context impact on: • probabilities • Motives / interests / weaknesses • credibility • absurdity- irrelevance, gratuity, ridicule, mockery (dangers and advantages)

W. The winning Beast • Keep the object in mind • Revise and adapt the strategy • Concede where necessary • Select the best points • Exercise sound reasoned judgment • Be deliberative and constructive in the just resolution

X.1 The Beast in opening • Introduction – what I am going to say – say it – what I said • Distil the contentious key issues of fact or law • Identify preferably in a single pithy sentence the nature of the dispute • Interesting, chronological and structured • Time lines, critical milestones, star bursts, charts, graphs, diagrams, photographs, video, samples

X.2 The Beast in opening • Convey the merit – merit maketh the case • Avoid unnecessary contentious issues and minimise the chance for interruption until completion of the opening (mark for identification) • Can a view or other real evidence yet to be tendered assist • Explain the likely areas of conflict – gloss with the competing probabilities and improbabilities • What increases the likelihood of truth

X.3 The Beast in opening • Highlight the smoking gun, the alarm bells, red letter day or other salient features • It was a Victorian practice to read the pleadings in opening and should remain so • Weave in the contemporaneous records or documents that are supportive / destructive • Convey the confidence of complete command of the case • Diminish or demolish the pertinent contrary contentions • Advantages in defining or redefining real issues

X.4 The Beast in opening • Tie in the diary, book entries, correspondence or other record to be used to lead or refresh your witnesses • Build or destroy witness credibility • Is the credit issue influenced by the taint of joint discussion, power of suggestion, displacement, reconstruction, fabrication, concoction • Convey an enthusiasm to assist the Court in its task • Present material and submissions in a way that will facilitate ease of adoption in a judgment • Consider lowest levels of credit attack and attractive escape paths for concession without destruction

X.5 The Beast in opening • Ensure audible with a respectful tone and pace • Watch the Court and adapt as required • Listen attentively to the Court • Does the opening accord with pleading and particulars (consider amendments), the intended evidence, instructions and ethical constraints • How will this opening impact on the prospects of settlement and tactical conduct of your case • What is the impact of the adverse use that may be made of the opening • Assist the Court in judging the beast by time estimates and sequence of performance

Y.1 Beast’s harness in opening Criminal • Prosecutor duty to conduct the case fairly and honestly: King v R (1986) 161 CLR 423 at 426 • Must not press for conviction beyond full and firm presentation of case: R v MWR (1999) 113 A Crim R 308 at 309; R v Roulston[1976] 2 NZLR 644 at 654; Wood v R [2012] NSWCCA 12 at 574, 577-579. Bar Rules in particular 21,35, 37, 62-71 • Disclosure of material that may be exculpatory – duty to call all witnesses who may give relevant evidence: Richardson v R (1974) 131 CLR 116 at 119, 122; Whitehorn v R (1983) 152 CLR 657 at 573-577, 682-683; R v Kneebone (1999) 47 NSWLR 450 at 457-461

Y.2Beast’s harness in opening Criminal • “… the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor’s own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.” – Queen v Tran [2000] FCA 1888 at [130]

Y.3Beast’s harness in opening Criminal • The prosecutor is not to address a jury in language which is intemperate, inflammatory or overzealous in nature. • “In opening for the Crown it is highly undesirable to use unnecessarily emotive language which, on any view, can only excite the sympathy for the victim or prejudice against the accused in the minds of a jury” • No part of the duty of counsel for the Crown to excite passion or bias • “Although there are no formal pleadings, as such in criminal trial, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case” (supra at [133]).

Y.4Beast’s harness in opening Criminal • “The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.”, R v Tangye (1997) 92 A Crim R 545 at 556. • “If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final address”: Tangye at 556.

Y.5Beast’s harness in opening Criminal • “Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed”: Tran at [148]; Robinson v R [2006] NSWCCA 192 at [142]. • Must not convey to the jury the Crown Prosecutor’s own opinion, Livermore v The Queen (2006) 67 NSWLR 659 at [33] • No exploitation public rumour or innuendo to compensate for inadequate evidence of motive • Obligation limited to pressing Crown case “to its legitimate strength” by reliance upon credible evidence

Y.6 Beast’s harness in opening Criminal • Careful use of rhetoric, Libke v R (2007) 230 CLR 559 at 600 • Inappropriate to ask questions of the jury contrary to the presumption of innocence or to give impression onus on the accused, Wood v R [2012] NSWCA 21 at [604]-[605]; Lane v R [2013] NSWCCA 317 at [122]-[123] • No submission on material not in evidence • No comments that belittle or ridicule defence case and no impugning credit Crown witness not given opportunity to respond

Z.1Beast’s harness in opening - Civil • “The object of an opening is to give the jury a general notion of what will be given in evidence. Counsel in opening states the facts of the case, the substance of the evidence, he (she) has to adduce, and its effect in proving his (her) case and remarks upon any points of law involved in the case”: Valeriani v Gibson (1963) NSWR 1430 at 1435 ( Halsbury’s 3rd); Bar Rules 21, 35, 37 • “Judicial obligation to afford a party a reasonable opportunity to present or meet a case is thus vital to both the reality and the appearance of justice”: Ucar v Nylex Industrial Products Pty Ltd [2007] 17 VR 492 at 512

Z.2Beast’s harness in opening - Civil • “While much emphasis can be placed upon the right of a party to open their case, the circumstances of a self-represented litigant who is to rely almost entirely upon their own evidence brings into play a number of difficult considerations for a trial judge. The right of that litigant to introduce the nature of their case, including the substance of the evidence that they intend to adduce, can so easily become blurred with giving that evidence from the Bar Table.” • “The trial judge is not required to remain an impassive listener, regardless of the length and content of an opening. When the trial judge discerns that the purpose of the opening is being abused, is misunderstood or is unhelpful to the party or the judge, he or she is required to intervene”: McWhinney v Melbourne Health [2011] VSCA 22 at [32]

AA. Own the Beast • Prepare your own summary as to the essence of the art of advocacy. • Revise and update your own summary. • Observe and learn from both the skilled, the unskilled and the understated. • Be insatiable in your appetite for the truths of advocacy.

BB. Beast in perspective • Supremacy of rule of law • Constitutional balance and Parliamentary powers • Justiciable controversy – jurisdiction of Court • Duties as officer of Court – administration of justice – servant of the rule of law • Ethical obligations and Bar rules • Statutory duties – cost estimates, fee agreements, reasonably arguable • Statutory matrix – just, quick, cheap – resolution/end • Scope of retainer, alternative resolution, need for and compliance with proper instructions • Duties owed by client

BEASTLY ADVOCACY IN MOTION