By David Langwallner
Leonard Cohen’s ‘Tower of Song’ is a short history, and valedictory, to the tradition of songwriting, fusing aphorisms and personal reflections on failure with nostalgia and regret. In this ‘Tower’, like that of Babel, the songsters of history communicate unsatisfactorily:
I said to Hank Williams “How lonely does it get?”
Hank Williams hasn’t answered yet
But I hear him coughing all night long
Oh, a hundred floors above me in the Tower of Song
Cohen also hints at the immortality of his verse:
Now, I bid you farewell, I don’t know when I’ll be back
They’re movin’ us tomorrow to the tower down the track
But you’ll be hearin’ from me, baby, long after I’m gone
I’ll be speakin’ to you sweetly from a window in the Tower of Song.
As advocates barristers, especially those representing criminal defendants, see themselves as part of a great tradition: maintaining a vocation in eliciting the truth, and telling it. We also trade in ambiguity, testing the veracity of an opponent’s case in order to establish reasonable doubt in the minds of a jury.
What sort of qualities should an advocate have? Fearlessness is intrinsic, which does not mean hysteria or histrionics. Flailing arms should give way to precision bombing, and the careful assembly of evidence.
A true advocate is honest, and never misleads a court, or fabricates evidence: offering persuasion within ethical bounds.
Nonetheless, the best bend the rules, leading a witness through examination-in-chief, at least until challenged.
An advocate should be unafraid to criticize the vectors of established authority. Thus Sir Edward Carson, frustrated by the proceedings of a tribunal presided over by a judge, who claimed he was not acting in his judicial capacity, responded: ‘Any fool can see that’.
Another great skill is knowing when to keep shtum. Silence can be golden, and verbosity pointless. This extends to deciding who to call as your witness. The old lawyers’ joke is that your client is your worst enemy. A question too far, when you cannot anticipate the answer, is a journey into unknown, perilous territory.
Advocacy is more art than science, and thus demands a high degree of creativity. It requires nimble thinking, judgment, and a degree of circumspection. This branch of alchemy cannot be taught in law schools, as is assumed in the United States.
It often benefits from non-linear sequences of thought that are the hallmark of a person who is out-of-the-ordinary. This may involve throwing out the rule book for that most devastating of interrogations: the surprise question. This remains the height of creativity in the often gentle, though far from gentile, art of cross examination.
Great advocates have their idiosyncrasies: from the thespian US lawyers, or indeed the late Adrian Hardiman in Ireland, to the blind courage and rhetoric of the aforementioned Carson, who displayed a unique combination of fearlessness and cold judgment.
After being frustrated by a playful deluge of responses from Oscar Wilde on his apparently innocent relationship with boys, Carson asked him about one Graingier, and, ‘had he kissed him’?
Wilde fell for the trap, responding, ‘oh no he was far too ugly’, and Reading Gaol beckoned. Implicitly he had revealed that his relationships with boys was of a different order.
It goes to show that a witness should never be over-confident. A witness box is the last place to send a stage performer, or for anyone who plays to the gallery.
Cross examination involves strategies, ruses, subtle discrediting, and of course laying traps. The strategy should be mapped out in advance, and requires the prosecution’s evidence to be parsed meticulously, in order to be dismantled.
In appealing to a jury, the great advocate often eschews the chronology of a case, instead presenting a fluid and protean account. They often mix it up, and it may not be initially apparent what they are getting at.
Any aspiring advocate ought to study and indeed listen closely to how senior advocates go about their trade. To attain greatness anyone must commune with the dead, and living, and be humble.
Increasingly, I believe great advocates should have a commitment to social justice. Alas, few do. Victory and payment is one thing; serving the community, or that nebulous notion of justice, another. Amidst the scramble for Mammon this often gets lost sight of.
The greater the capacity of an advocate for empathy, the more she will be prepared to do on behalf of her client, though it should be noted that even the best have their foibles.
I am deeply skeptical, from wide experience, about the motivations and funding sources of the human rights industry, and the type of advocacy we often hear that arrives in the form of sound bites. This is safe sex advocacy on politically correct issues such as gender equity, funded by shady organizations like the Ford Foundation, while ignoring far more pressing issues of homelessness, poverty and social exclusion.
The crucial test is whether you are willing to represent the wretched of the earth: including the gangster, the property speculator and the drug baron.
I intensely dislike those who take up causes driven by populist bandwagons. These are not advocates, but politicians in disguise.
The world is full of public avengers, and family lawyers often deserve contempt for the fake outrage and indignation peppering their speech, while they enrich themselves on cultivating misery with contrived, and even state-sponsored, fabrications.
As mentioned, advocacy intersects with creativity, which always contains an element of mystery. As when a tennis players enter the ‘zone’, great advocates are often inscrutable in their methods, and react instinctively. Great, as opposed to good, advocacy cannot really be taught. That ability is innate.
That is not to diminish the value of the science behind the trade: a closing speech should scrupulously assemble the weaknesses of the opponent’s evidence, establishing corroboration, or otherwise, and exposing holes and contradictions.
From his rhetorical palette the advocate paints in mosaic, fusing a degree of passion with calculated mind games.
An advocate should be a psychologist in his approach to keeping a jury as a criminal barrister, or judges elsewhere, on side.
What should be said before a judge, as opposed to a jury, is markedly different. A judge is case-hardened, and less likely to be swayed by the tricks of the trade, unlike a jury, whose affection should be courted.
But trial courts are becoming increasingly like reality television, or beauty contests. It is getting like Crufts, or a horse parade.
As I have indicated, a much underrated virtue is discerning when to leave something unsaid. Evidence that may seem advantageous may remain unexplored in a closing speech for fear it will generate ambiguity, and even implode another argument. But this should not lead to timorousness. Points should be put decisively, which may border on stridency.
I am increasingly of the view that advocacy is a necessary life skill, with application far beyond the courtroom. We all have to sell ourselves and relate to others: our daily lives involve persuasion, and to be too timid in discussion may invite disaster.
It is important to be confident and assertive, but never too sure of yourself. The minute you believe your own hype, or that you are the cleverest man in the room is when you need to get out of there. This unfortunately is often a feature of the ruling class of any country.
Like artists, most great advocates are assailed by doubt. These are complex and ambiguous creatures, whose practice of the dark arts may lead to a perception that there is something of the night about them. Perhaps as a result, the burden, and not just of proof, can be onerous.
In our times public advocacy, not confined to the court room, is in high demand. As Leonard Cohen sang:
Now, you can say that I’ve grown bitter but of this you may be sure:
The rich have got their channels in the bedrooms of the poor
And there’s a mighty Judgement comin’ but I may be wrong
You see, I hear these funny voices in the Tower of Song
The world is completely out of balance and spinning towards the disasters of an economic and environmental apocalypse. The acceptance of neo-liberalism dogma is accelerating the prospect of social and economic collapse.
This has been steered by a diabolic trinity of religious fundamentalism, neo-liberalism, and the post-truth peddling of relativists in the universities: academics who sing for their supper. But there’s a “mighty Judgement comin’”.
Public advocacy from the likes of Naomi Klein, Arundhati Roy and our own Cassandra Voices is rising up.
Where better to learn advocacy than in the criminal and public courts of the Tower of Song? For the advocate is a truth-teller, who exposes bullshit wherever it is found. Real training in these skills is difficult to find. The art is increasingly diminished by failure to engage in adequate self-reflection.
The mark of the truly great advocate is a resolute independence. He is never a dutiful servant of the state: the best would never dream of acting for the prosecution. That is left to careerists, and others who can only dream of advocacy’s Tower of Song.
David Langwallner is a human rights lawyer and founder of the Innocence Project in Ireland. He was previously Dean of Law at Griffith College. He was made Pro Bono & Public Interest Team/Lawyer of the Year at the AIB Private Banking Irish Law Awards 2015.
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