BY JENNIFER CORRIN CARE
SCHOOL OF LAW;
UNIVERSITY OF THE SOUTH PACIFIC
Title: Advocacy in Practice
Authors: Glissan JL and Tilmouth SW
Published by Butterworths: Australia, 1998
ISBN: 0 409 30974 5
pp: 232, xxi
Advocacy in Practice is the third edition of Glissan’s Cross Examination: Practice and Procedure. It is a book by lawyers (both authors are QCs) for lawyers. It assumes a working knowledge of procedure and evidence and is consequently unsuitable for undergraduate students or non-lawyers. This edition takes a different approach to the 1985 and 1991 versions, so much so that the authors regard it more as a new work. Reflecting the increasing time spent by advocates on preparation of written and oral argument, this edition contains a chapter dedicated to preparation and case analysis. The authors have endeavoured to move away from an Australian perspective, concentrating on adversarial techniques that transcend jurisdictional barriers. However, the legislation referred to is all Australian and most of the case authorities cited are Australian or British. Similarly, examples given are largely Australian and certain sections, for instance those on addressing the bench and citing other judges, are written from an Australian perspective.
This book is not, and is not intended to be, a ‘beginners guide’ to advocacy. It is presented in a very different style to the skills manuals available for graduates who are at the start of their legal career. These generally contain simulated case materials for use as a framework for presentation of the skills in question, without which a novice cannot get the best out of the text. Whilst the material is not presented in the context of practical, lifelike situations, the narrative is interwoven with examples, many of which are in a readily comprehensible question and answer form. It is well written, in short, easily digestible sentences. It also contains a large amount of information in a convenient list form.
This book is mainly concerned with advocacy at first instance, but also contains a useful chapter on appeals. It also includes a chapter on etiquette and ethics of advocacy. This covers formal rules of etiquette and behaviour in court and chambers. It also provides a list of ethical principles. The particular duties applicable to prosecutors are also highlighted. Although this list is in broad terms, it serves as a useful reminder of the fundamental principles, which are all too easy to lose sight of under the pressure and demands of advocacy today. The chapter contains a useful section on language, including the following exchange, which is provided as an example of the importance of clarity and simplicity of language, and how slang can sometimes have its uses:
Counsel: Bouncers at this place are pretty keen on giving troublemakers a bit of a hiding aren’t they?
His Honour: Please, Mr Bloggs, could you use the Queen’s English?
Counsel: (with heavy irony) is it your practice to offer some form of physical chastisement to those patrons of the establishment who engender in you feelings of personal antipathy?
His Honour: Can we please have that in language the witness might have some chance of comprehending. His occupation is as I recall doorman not professor.
Counsel: All right, why do you go the knuckle when you do the nana? I don’t.
As the authors comment, ‘The witness understood. So did the jury. Hopefully, so did the judge.’ (p.222)
The book’s 238 pages are divided into ten chapters. Each is prefaced on a light note, by lines from the Lord Chancellor’s Song by WS Gilbert from Iolanthe. The chapters cover preparation and case analysis, opening, examination, cross-examination, re-examination, rebuttal and reply, objections, closing address, appeals, etiquette and ethics, and elements. Each chapter is divided up under major headings and sub-headings. These short, descriptive headings help to break the content down into easily digestible pieces. Each chapter concludes with a summary of its main points in bulleted form, under the heading ‘Elements of…' Unfortunately, some of these sections are confusing as they raise points that do not appear to have been dealt with in the main part of the chapter. For example the last point in Elements of Preparation and Analysis is ‘Develop the closing address before the case begins’. The final chapter is repetitious. It contains nothing more than the final bulleted section of each chapter, which loosely summarised that chapter’s content.
Something has gone awry with the short Table of Cases. Out of ten references checked only two were on the pages given. Also, although most cases in the list are followed by citations, some are not. In some instances this would appear to be because they are the names of fictitious cases, given as examples in the text, which should not be in the case list at all. On others it appears to be because they are names of famous cases and trials from which examples and quotations have been taken. Again, it is arguable that these should not be in the Table of Cases at all.
There are no footnotes or endnotes. Instead references are included in the main text, usually after a colon. The bibliography states that it contains full publishing details of works referred to, which are given in abbreviated form in the text. Unfortunately some works referred to in the texts have been omitted from the bibliography, which could be very irritating for the reader if it is a book that the reader is unfamiliar with, such as the Dictionary to the Uniform Evidence Acts 1995, referred to at p. 35.
As a ‘skills’ book, and particularly one where the authors aim to ‘instil a non-jurisdictional emphasis’ this work may be of use to practitioners in the University of the South Pacific region. However much of this book is based on the assumption that trial will be by jury. This is not the case in civil or criminal trials within the region, except in Tonga (where there is a right to request a jury trial in certain civil and criminal cases, but this right is rarely exercised). The right to a criminal trial by jury was abolished in Fiji in 1961 (Criminal Procedure Code (Amendment) Ordinance (No 35 of 1961)). Additionally much of what is said envisages a divided profession, whereas the profession in the countries of the USP region is fused. Like all skills books, this text is not a substitute for practical experience, but it is a useful guide for practising advocates who wish to hone their skills, and a convenient summary of the elements of certain techniques and practices.