Sharp advocates drive the development of the law, writes James Wolffe QC
Why does advocacy matter? Fundamentally, it matters because effective advocacy secures the protection and vindication of rights in our system of justice. It matters because effective advocacy secures the rule of law, the protection and vindication of rights and the sound administration of justice.
The rule of law serves two fundamental purposes: it provides the underpinning for a just and economically successful society. And it protects us from arbitrary action. Both of these functions depend on the existence of independent courts in which disputes can be resolved and state action justified and tested in accordance with the law. In any sophisticated system of law, the vindication and protection of rights in the courts depends on the availability of professional lawyers who are willing and able to represent accused persons and civil litigants and to do so with integrity and skill.
So it is that the daily work of the advocate, leading and testing evidence, and presenting argument and counter-argument, makes the rule of law a practical reality. The role of the professional advocate plays a pivotal role in our own system of justice.
Judges do not investigate cases. They rely on the parties to bring the relevant evidence and to present it to them in adversarial proceedings where it can be tested in open court. Our judges also depend on the lawyers before them to provide them with the necessary legal materials to make a sound decision.
The ability of our system to achieve justice depends on cases being properly analysed at the outset and on the necessary factual investigations and legal research being undertaken by the parties or their lawyers. It is, indeed, the presentation of the case by skilled advocates which is the creative engine driving the development of our law.
There is another reason effective advocacy matters – perhaps the most important one. An accused person or a civil litigant generally only gets one shot. Poor quality representation which damages the chances of the accused or a civil litigant can rarely be retrieved. For any litigant, it is an inadequate second best to have to pursue an appeal, far less a professional negligence claim against their lawyer or a complaint to the Scottish Legal Complaints Commission. Litigation is like surgery – it needs to be done well at the time, if one is to avoid possibly serious complications.
Skilled advocates share many skills with other members of the legal profession: knowledge of the law; skill in analysing problems within a legal framework; skill in the formulation of sound advice. And advocates, like other lawyers, must respect the core values of the legal profession – they must act with integrity and independence, avoid conflicts of interest and keep clients’ confidences. But there are particular skills involved in the effective deployment and testing of evidence in a forensic setting and in the presentation of argument, whether in writing or orally, with a view to persuading a court. And advocacy also presents particular ethical issues – because of the advocate’s responsibilities in relation to the administration of justice itself. Advocacy is, in short, a specialist professional skill.
These examples point also to the public purpose which lawyers engaged in professional advocacy serve. All lawyers are obliged to put their clients’ interests first – indeed to avoid conflicts of interest. This is no less true of lawyers engaged in professional advocacy. This is one of the essential attributes of a profession. Those engaged in the advocacy also serve a larger public purpose – namely, the sound administration of justice. The effective administration of the law depends on the ability of individuals accused of crime or engaged in disputes about their civil rights to lay before the court the relevant evidence, to test the evidence against them, and to put forward all the arguments which can properly be made. All lawyers who are engaged in professional advocacy – whether prosecuting or defending, or engaged in civil litigation – serve that public interest.
• James Wolffe, QC, is Dean of the Faculty of Advocates, www.advocates.org.uk