The Keys to Winning Advocacy

There are a handful of principles I wish I had known at the beginning of my career.

Like most young lawyers,I thought that winning in court was in my hands. I believed that all I needed to do was show the judge the blazing righteousness of my case, the overwhelming weight of authority in my favour, the crushing preponderance of my evidence, and of course, my eloquence.

And then I learned two things.

First, I quickly learned that justice was not in my hands, it was in those of the judge. The second took somewhat longer to learn.

Eventually I came to see that not only was justice in the hands of the judge, but that those hands were frail human hands just like yours or mine. The court was not a machine, no mechanical array of levers and buttons for me to manipulate, but rather a human place filled with people just like me– noble-minded yet frail, sincere yet distracted. The presiding judge, the decision maker, had an entire life beyond the details of my case.

Nearly every judge I’ve ever known has been frighteningly clever, personable, reasonable, patient, perceptive, thoughtful, and fair. But every one has also had personal issues just like you and me. Some drank too much, some had bad marriages, some had dysfunctional adult children, some made bad investments, some had life-altering health issues. Every one was sworn to uphold justice, and every one honoured the dignity and majesty of Her Majesty’s court. But every one of them had a whole bunch of other things competing for their attention. After my case, the judge still had to consider and sign twenty endorsements, read thirty briefs, consider some law for next week’s jury trial, run a pretrial for two out-of-control, self-represented divorce parties, then go home to find out why her kid was expelled from school. Again. You get the picture.

So what I learned is that the success of my advocacy lay in making a righteous outcome the easy and obvious choice for an overworked judge. This meant laying out four things, clearly and simply:

1. Exactly what brought us here today. No more, no less.
2. Exactly what the court is able to do for us, should it choose. No more, no less.
3. Exactly why it is right that the court should give us the relief. No more, no less.
4. The exact mechanics of the relief sought. No more, no less.

In the crazy world in which judges live, something clear, simple and reasonable shines like a rare jewel. This simple formula succeeds far more often than not. Even when it does not, you will have gained the respect and favour of the court, and that’s never a bad thing.

Of course, the perceptive reader will say, “Hey, that stuff applies no matter the audience!” And, of course, you’d be right.