Episode 1 - Introduction to how to become a better advocate

Welcome to Advocacy in Court, a podcast to help you in your preparation for and then your performance in a court or tribunal room where you're acting for a client. This is a spoken only podcast so you can listen to it when, where and as it suits you. In this first episode I'll be covering, is this podcast series for you? What do we talk about in these podcasts? How are these podcasts structured and the framework within which our advocacy takes place? This podcast draws on my experience for over 40 years as an advocate and as a teacher of advocacy. My name is Hugh, that's my given name, my family name is Selby. Turning then to the first question, is this podcast series for you? The answer is yes if the following applies. First, that you're starting out on your advocacy career and you're looking for some useful guidance. Next, that you're open to critical self-reflection and that you'll use that process to develop your own appropriate style for the techniques that it discussed in this series. Next, that you accept that advocacy is a practical skill and that it's acquired by a combination of talent and well-informed practice by which it's meant a lot of repetition. And finally, that you never underrate the importance of luck that will sometimes come to your aid and sometimes to that even reprimand. But when luck does appear that as a good advocate you'll be able to respond well in the moment. Be that to embrace a win or on the other side of the coin reducing the loss being suffered by your client. Let me turn briefly to the topics that will be covered in this podcast series. We're going to deal apart from the framework within which our advocacy takes place in this first episode. Later on we're going to deal with these topics. First, dealing with the stress that you inevitably feel every time you're about to go to a hearing. Then related to that, the stress that your clients and witnesses will always feel despite your best efforts to prepare them. From there we look at the interview that you conduct with a client and other witnesses, recognising that such an interview is just another form of examination in chief. Having done that, we turn to how you turn the interview in preparation into a successful examination in chief at the hearing. Having set up that questioning basis, we then have a look at what you think about when you're trying to structure a case and how you always look at the two sides, one side being the whole as in the entire WHOLE and the other side being looking for the gap or the whole just HOLE. Having worked out your structure, we then turn to what steps you take to make the setup in the hearing space as positive for you and your witnesses as it can be. Having done that, once you start in the case, what are you trying to achieve if you make an opening statement? That done? We look at ejections, how to make them, how to reply. From there, we go to cross examination, what's behind it, how you do it, what are the pitfalls. Then we have a look at those situations where it really helps to pre-patter, practice a pattern of questions or statements because there are circumstances where in order to do something at a hearing, you require the leave of the decision maker and you need to have the pattern down pad. We then go to nailing it in re-examination, that's when you have a second go with your witness. And finally, how to make your closings actually matter. Going then from what are the topics to be covered, what is the structure of these podcasts? Well, first and foremost, I'm getting tips combined with explanations about why those tips might work for you. The plan is that each podcast should be at most 15 minutes and probably rather shorter. Such a length, reflex not only in convenience, but most people's attention span. Now, to focus upon the development of technique, I will refer repeatedly to a very simple background story. That being the well-known nursery mind in Western culture, particularly English-speaking culture, which goes as follows. Jack and Jill went up the hill to fetch a pale of water. Jack fell down and broke his crown and Jill came tumbling after. Now, whether or not you are familiar with that age-old nursery rhyme, please take the time before you listen to the second episode in this series, Tintanette searched the rhyme under Jack and Jill and you'll find a number of YouTube videos of the rhyme being told to children. Have a look at those YouTube videos and ask yourself, what cultural values are either explicit or taken for granted in the way this rhyme is being told. During the course of this series, if you find that there's some pressing question to which you think I might have the answer, then by all means email me. Here's my email. It's no breaks. HuHUGHM for Melbourne, Selby, [email protected]. By the way, for more detail about what we're talking about in this podcast and some structured examples, get my short and fortunately very cheap book which is available on Amazon Kindle. The author is HuHUGHSELBY. The title is Advocacy in Court, Preparation and Performance, just like this podcast. Finally for this episode, what is the framework within which our Advocacy in a courtroom or a tribunal takes place? For many people, particularly those starting out, there is a focus upon, oh, how do I ask the questions of my own witnesses? How do I ask questions of the other side? But that's actually a secondary consideration because all of our advocacy takes place within a framework that has the following components. First, what are the legal issues that define the problem that is to be resolved within the hearing space? Secondly, what are the procedural rules that dictate how this competition will be played out? Third, what are the relevant principles of evidence in my jurisdiction? What facts are allowed and what facts are not permitted? Next, in light of those considerations of legal issues, procedural rules and relevant principles, what will be the admissible facts, meaning those to which the decision-maker will pay attention? And then, very importantly, turning one's mind in every case to what are the atmospherics in which I and my client are conducting this case? The atmospherics is a term that we use to describe that combination of what are current public interests or beliefs. What sort of media attention is the focus these days? What is the reputation of a party or the parties or witnesses? Now let's take the Jack and Jill context as a good example of this. It's a good example because depending on where you live and your background, the character's Jack and Jill will likely look like you, where clothes like you or those warm-buyer ancestors will climb a hill that is something like what you expect and will reach a well for getting water that in some way looks familiar to the environment in which you've grown up. But it just so happens that for each of those features, depending on where you are in our world, there's a lot of possible variation in all of those descriptors. It's for that reason that I asked you a little while ago to have a look at the various YouTube videos because you will have found to a greater or lesser extent that what you see and hear on those YouTube videos are the matches or is very distinctively different from your expectations. Now within any legal context, there's similarly a range of atmospherics that change over time. And we can use Jack and Jill as we will during these episodes for both a civil case and a criminal case as follows. So just bear this in mind in later episodes. A civil case that can arise from the Jack and Jill nursery home, where it's run, is that both Jack and Jill are suing their employer for causing them to fall over and be injured in breach of workplace safety laws. To get into a criminal possibility, Jack and Jill have been charged with attempted or completed theft of water and possibly also a pale to take the walker away from the well. If Jack is the principal, then Jill is at least an accomplice to what has happened. Now as a part of the atmospherics, in any case, you will consider from when you first encounter the case the following questions. When I say you will consider, that's what I'm recommending. First, who is or are the decision makers? What are their objective needs? What are the subjective wants? Who do you ask to find that out if you don't know? Secondly, how do those needs and wants of the decision makers influence the way in which you will decide to run the case? For example, in a judge alone case, typically one expects the Lord to be front of mind and that will then be applied to the facts. Whereas, if you have lay people deciding in case whether they're called jurors or assessors, then you should expect the facts to be front of mind and the Lord then be applied to those facts. In other words, the roundabout. But apart from that council of perfection, one also needs to recognise that within all decision makers, there are both positive and negative traits. Positive traits will help you. But where there are negative ones such as prejudice and bullying, then you have to call that out. Calling out bad acts in a court or a tribunal takes guts. And those guts require a lot of experience. While you're requiring that kind of experience, there's an awful lot of stress when you're trying to do the right thing. And it's to stress yours, that of your client and that of the witnesses, to which you'll return in the next episode. Meantime. Thanks for listening.