Advocacy: A Lawyer’s Fundamental Tool In Court

By Chinemerem Nnawuihe

ABSTRACT

Every year, the Nigerian Law School (NLS) graduates thousands of students from its campuses. Most of these ‘new wigs’ have little or no courtroom experience outside the observation of court proceedings during their mandatory Court Attachment as students of the NLS. They have not undergone the necessary tutelage, which will help them to develop the lawyering skills needed to be good advocates.

There is no short cut to acquiring these vital skills; they are acquired through constant practice and hard work.

This article therefore intends to examine advocacy as an essential/vital tool, which a lawyer must possess while serving the best interest(s) of his client(s) in court.

The article will also examine some of those skills that a lawyer must possess in order to be a good advocate. A lawyer should be able to demonstrate oral communication skills, legal interviewing skills, advocacy skills, negotiation and dispute resolution skills, letter writing and legal drafting skills. These skills are what distinguishes a lawyer in court and makes him present his case to the highest possible standards.

Law students and young lawyers will find this article very useful, as it will set them on the right path of excellence.

INTRODUCTION

Advocacy in legal practice is the act of arguing in support of a client. It is the means by which a lawyer puts his client’s case before the court. It is a special skill and a very critical component of what a lawyer does.

Advocacy does not mean oratory or eloquence as they only form a part of it. However, they are skills that must blend with other necessary skills in order to produce effective advocacy.

A lawyer must possess the following skills for a successful advocacy:

• Mastery of the facts
• Mastery of the law
• Adequate preparation
• Ability to speak eloquently in court
• Ability to efficiently conduct oral examination in court
• A thorough understanding of ethical considerations in advocacy
• Good drafting skills.

These skills are very essential at all stages of litigation. They must co-exist and be mastered simultaneously. For a legal practitioner to be said to possess advocacy skills to plead a case effectively in court, he or she must be guided by the rules, conventions and practices governing advocacy. These rules include, Civil and Criminal Procedure Rules, rules of evidence, rules guiding Alternative Dispute Resolution (ADR) and the general laws in force in a particular jurisdiction.[1]

Mastery of the facts

It is the duty of counsel to examine all the facts available in a case he is handling[2] as they are very essential in advocacy.

The essence of this is the following:

• To identify the cause of action – An action cannot be maintained in any civil proceedings without the existence of a cause of action. Even in criminal cases lack of the mastery of the facts will lead to the duplicity of charges.
• To identify proper parties before filing a suit.
• To determine jurisdiction. Despite the fact that the statute establishing a court confers jurisdiction on it, the facts of a case always provide a guide to the application of relevant statutory provisions.
• To determine Locus Standi.
• Settlement of pleadings. A mastery of the facts will help in the settlement of pleadings because pleadings contain facts and not law.
• Identifying the applicable law.
• A mastery of the facts ensures an effective and efficient cross-examination.

Mastery of the law

A good advocate is not a person who knows all the law but one who knows where to find the law and apply it appropriately.[3] The law is found in primary sources, which are traditionally, case law and statute. A good advocate in studying them will apply the following approach:

• Reading up the whole text of the statute or case law thoroughly. In addition to this, secondary sources such as textbooks and journals should also be read to gain background knowledge of that area of law.
• A thorough review of the case law with a view to match the facts of the case at hand with the decisions under review. A review of case law will assist a counsel to understand what is the ratio or rationes decidendi. It should be borne in mind that, leading judgements contain the ratio or rationes decidendi. Every other expressions or opinions in the concurring judgements are only of persuasive considerations.[4]

Counsel must take note while dealing with precedents that:

• In Nigeria, lower courts when faced with two conflicting decisions of the Supreme Court on a given principle are bound to follow the latter decision of the Supreme Court.[5]
• The Court of Appeal is bound by its own previous decision unless where it has to expressly overrule itself before proceeding to lay down a fresh precedent and it can only do so if its decision is in conflict with a Supreme Court decision on the point or it was otherwise given per incuriam.[6] Where it is faced with two or more of its decisions that are in conflict, it is at liberty to decide which of them to follow.
• A High Court that is faced with two conflicting decisions of the Court of Appeal is free to choose which of the two to follow, having regard to the circumstances that are called into question before the particular High Court.[7]

A thorough reading exposes before hand the relative strength and weakness of a client’s case and also helps in settling pleadings appropriately. It will also help a counsel to understand the realities of modern law practice.

Adequate Preparation

After a lawyer has sufficiently mastered the facts and the law the next step will be to engage in adequate preparation for the trial. A critical part of advocacy is advocacy in the courtroom, therefore a legal practitioner must prepare adequately. This is further provided in the Rules of Professional Conduct.

Preparation for a case entails ascertainment of the facts of the case by interviewing clients and witnesses, examining documents and physical items. It also entails a detailed study of pleadings, charges, proof of evidence and briefs of argument served on the practitioner. When he has ascertained the facts of the case and studied all court processes he must then decide a strategy to adopt in the case.[8] A lawyer must pay close attention to details while preparing for a case; no stone must be left unturned. He must possess precision in analysis and thought. 

Ethical Considerations in Advocacy

A lawyer must have a good understanding of professional responsibilities and ethics and responsibility to his client and the court. He must also possess an understanding of a healthy, professional and ethical approach to the adversarial system. The possession of advocacy skills without a thorough knowledge of ethical rules may bring a lawyer into conflict with the court. Ethical rules interface with the roles of counsel and the court to produce a synergy that delivers a common objective, justice.

In criminal cases for instance it is not the primary duty of a prosecuting counsel to secure a conviction at all costs but to see to it that justice is done. Thus he must not consciously suppress facts or keep away witnesses who are capable of establishing the innocence of the accused.[9]

A defence counsel on the other hand, owes a duty to justice and he is bound to fearlessly defend his client by all fair and honourable means permitted by law, to the end that no person is deprived of life or liberty except by due process of law. He must not devise or provide lines of defence where none exist or formulate stronger points where they are weak. He should take no further part in proceedings where his client has confessed to guilt to him but insist on falsely formulating a line of defence that will exculpate him.

A lawyer must decline to conduct a case that is hopeless or one that is brought merely to embarrass or injure the opposite party or to buy time for his client in order to assist him avoid a civil obligation which he ought to perform. Thus, an advocate should not consciously lend his effort to actions that constitute an abuse of court process.

A legal practitioner has immunity from civil liability for negligence while acting as a barrister in court, although he is not exempted from liability as a solicitor. But, even as a barrister, certain breaches of his duty to the court may result in criminal sanction for contempt of court. Thus, an advocate must do the following in order to avoid being charged for contempt.

• Adopt an attitude of courtesy: respectable, respectful and pleasant manners towards the judge, both in oral and written communication. He therefore must abhor all forms of rudeness, pomposity or impudence. He must not speak while the judge is speaking and must remain standing while addressing the court or being addressed by the judge. He must sit down whenever another counsel is on his feet because only one counsel can be heard at a time.
• He must be prepared to take admonitions from the judge in good faith and endeavour to humbly explain the reasons behind any perceived untoward attitude toward the court, the judge, colleagues, litigants or court officials. There is nothing commendable about attempts to ‘square up’ or ‘get even’ with any judge in open court, no matter how rude or uncharitable the judge’s conduct shows. It is better to humbly and quietly record such conduct or attitude and present it before the Bar Association or the appropriate Judicial Council. Better results are attained in getting seeming differences with judges resolved on the platform of the Bar Association than any individual effort might achieve.
• Counsel must be punctual to court and must attend all sittings of the court, whenever his clients’ case is listed. If he is not disposed to attend, he should write, requesting for an adjournment, giving convincing, good and cogent reasons. However, persistent absence from court sittings will be treated as conduct amounting to interference with the course of justice and held to constitute contempt of court.
• Counsel must be candid and fair in all his presentations before the court. He must always assist the court to work with the truth in all transactions. He must never present himself as an unreliable character before the court on any given occasion.
• Counsel is bound to maintain order, discipline and decorum. Counsel should not read materials like newspapers or magazines at the Bar while proceedings are going on. Mobile phones must be switched off and unnecessary loud conversations that tend to distract the proceedings should not be engaged in.

As a general rule, a person may be liable in negligence for an act done by him in his capacity as a legal practitioner.[10]  Any provisions purporting to exclude or limit such a liability in any contract is void, except in cases in which he gives his service without reward[11] (pro bono).

A legal practitioner acting in his capacity as a barrister is not liable in negligence with respect to the conduct of proceedings in the face of any court, tribunal or other body. This common law rule[12] is embodied in section 9(3) of the Legal Practitioners Act.

In the case of Rondel V. Worsley,[13] Lord Denning M.R. sitting at the Court of Appeal in England explained the reason for the rule by referring to the need for the barrister to perform his duty fearlessly and independently, the barrister’s obligation with respect to accepting a brief, the barrister’s duty to the court and the need to avoid protracted litigation that would arise if a barrister could be sued for negligence.

He stated as follows: “There is, in my judgment, a sure ground on which to rest the immunity of a barrister. At any rate, so far as concerns his conduct of a case in court. It is so that he may do his duty fearlessly and independently, as he ought and to prevent him being harassed by vexations actions………. As an advocate he is a minister of justice equally with the judge……… A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how given to complaining. No matter how undeserving or unpopular his cause the barrister must defend him to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He must accept the brief and do all he honorably can on behalf of his client. He has a duty to the court, which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice… If a barrister is to be able to do his duty fearlessly and independently, he must not be subject to the threat of action for negligence……… If a barrister could be sued for negligence, it would mean a retrial of the original case… Finally, on public policy I would say this: If this action were to be permitted, it would open the door to every disgruntled client…. Every convicted prisoner who blamed his counsel could at once bring an action for negligence. Rather than open the door to him, I would bolt it.”

The House of Lords of England affirmed the decision by the Court of Appeal of England in Rondel V. Worsley that a barrister could not be liable in negligence with respect to his conduct of a case in court.[14]

From the forgoing, it is clear that when a lawyer is acting in his capacity as a solicitor he will be liable to be sued for any form of negligence but he has immunity from negligent liability when he is acting in his capacity as a barrister.

It is instructive to note that, the decision of the House of Lords in Rondel V. Worsley has been overruled by the decision of the House of Lords in the case of Arthur J.S. Hall & Co. V. Simons[15]. In that case, the House of Lords revisited the immunity and found, by a majority, that it was no longer required. This marked a significant change of direction in public policy for the House of Lords. Just over thirty years earlier, in Rondel V. Worsley, that court had confirmed that public policy required the maintenance of the immunity. The House of Lords in overruling itself was concerned that there would be negative public perception of the immunity enjoyed by barristers. They were of the view that the public will feel they are neglecting the interest of the public in favour of the collective self-interest of lawyers.[16]

Ability To Speak Eloquently In Court

The language of the court is English language. An advocate must learn to speak eloquently in court. Whatever his submission, whether embodied in a short address such as an objection in the course of trial or a simple application for an adjournment or a final address, counsel must present his thoughts in good lucid English. Even examination of witnesses cannot be properly accomplished if counsel cannot frame his questions in proper English. He must possess precision in expression and communication.

It is true that in Nigeria English is not the first but often the second language. It is nevertheless, the lingua franca and official language in almost every public transaction. But the fact that it is not one’s first language should not be an excuse for employing rustic accent and poor diction in expressing oneself in it. A lawyer must express himself in clear, respectable and impressive diction when speaking in English, especially on formal occasions such as when speaking in court. The influence of one’s accent in spoken English constitutes a barrier to effective verbal communication, especially when speaking to an unusual audience or when a majority in the audience do not understand the speaker’s first language. In addition to counsel being able to speak eloquently in court, he must possess the following qualities, which will enhance his eloquence:

• Self-awareness,
• Self-confidence and poise and
• The art of persuasion.

Counsel must be able to identify the purpose of a proposed communication, the most effective way of making it, an appropriate communication strategy and the content of the proposed communication. He should present thoughts, advice and submissions in a logical, clear, succinct and persuasive manner having regard to the circumstances and the person or forum to which the communication is made. He must identify and appropriately deal with verbal, non-verbal and cross-cultural aspects of the proposed communication.

Mastery of Drafting Skills

There is a high input of documentary materials in legal practice generally. In advocacy close attention should be paid to court processes because once proceedings commence greater emphasis will be placed on the written word. A carelessly worded or phrased pleading possesses grave implications for the parties and the court because there may be difficulties in assessing the evidence that can be called in support of it. Counsel should use simple, correct English, logically organized into a consistent and coherent story that can easily be relied on by both the court and litigants. Verbose and ambiguous terms should be avoided in order to enhance ease of comprehension.

Other skills, which a lawyer must possess, include the following:

• Reading and Listening – a lawyer must be able to take in a great deal of information. It may be on topics, which they are unfamiliar The ability to listen to clients and understand their unique issues and concerns is also very important.
• Counseling – A critical part of a lawyer’s work is giving legal advice to clients. There are very few ventures that can be undertaken without some understanding of the law. In many cases, a lawyer’s role as a counselor serves to prevent litigation rather than support it. Through their knowledge of the law, lawyers advise their clients about decisions, actions, partnerships and subjects.
• Analyzing – A lawyer must be able to determine the fundamental elements of problems. In every issue, a lawyer must study the relationship between elements in order to arrive at an answer, result or solution. He must spend time to discern the nature and significance of the many issues in a particular problem.
• Synthesizing – A lawyer must have the ability to organize large amounts of material in meaningful, focused and cogent manner.
• Negotiating – This is one of the primary roles of a lawyer. When parties to a proposed transaction disagree, a lawyer acting as a facilitator may be able to help them negotiate to a common ground. Although the client’s interests are a lawyer’s first priority, often those interests are served best after compromise and conciliation have paved the way to an equitable settlement.

Conclusion

A lawyer while discharging his duties, in and out of court must imbibe good ethical conduct and must act professionally in every transaction he is engaged in.

As an advocate he must honour his duty to his client, his colleagues and ultimately the court as a minister in the Temple of Justice. There is no short cut to acquiring good advocacy skills; there must be a conscious effort by a lawyer to develop[17] himself through practice and observance of ethical rules.

1 <http://www.thelawyerschronicle.com> accessed 18^th September 2015.

[2] I.M.N.L. V. Nwachukwu (2004) All F.W.L.R. (Pt. 220) 1216 at 1242.

[3] Montriou V. Jeffreys [2 Car. & P. 113 (1825)].

[4] Abacha V. Fawehinmi (2006) 6 N.W.L.R (Pt. 660) 228 at 322 – 323

[5] Akande V. NASU (1999) 2 N.W.L.R (Pt. 588) 532

[6] Emecheta V. Ogueri (1998) 12 N.W.L.R (Pt. 579) 502

[7] Thor Ltd. V. FCMB Ltd. (1999) 1 N.W.L.R (Pt.497) 35

[8] The lawyers chronicle (supra).

[9] Rule 37(4) & (6) Rules of Professional Conduct

[10] Section 9(1) of the Legal Practitioners Act

[11] Section 9(2) ibid.

[12] Established in the English case of Rondel V. Worsely (1969) 1 A.C. 191.

[13] (1967) 1 Q.B. 443 at pp. 501 – 504.

[14] (1969) 1 A.C. 191

[15] (2002) 1 A.C. 615

[16] See generally, Akintunde olusegun Obilade, The Nigerian Legal System (Spectrum Law Publishers 1993) & Valentine B. Ashi, Basic Skills in Trial Advocacy, 2005.

[17] Section 11(1) of the Rules of Professional Conduct 2007