Advocacy in United States

“Advocacy is the art of persuasion”

Advocacy may be a promotion of a cause or point of view. It is also a general term related to a legal professional (advocate) who represents a client’s interests in the courtroom; this term has no particular standing in English law, but is used in South Africa, Isle of Man, Belgium, India, Scotland, Israel and other legal system as an alternative to Barrister. See Advocate, Lay Advocate (a representative who is not an attorney. Some lay advocates, such as certain paralegals, specializes in representing persons in administrative hearings) and Judge advocate.

In relation of the activity of a lawyer, we speak about court room advocacy (present evidence and argument in court). In this case, the aim of the law schhols in teaching advocacy is to prepare practitioners and law students to practical aspects of litigation including the nature of the adversary process, the role of the advocate, skills in the context of a trial including presentation, strategies and ­conceptualisation of a case (how the case will be run), opening and closing address, examination in chief, cross examination, general communication skills.

Some definitions and remarks about advocacy:

• “There are two distinct parts in the lawyers work in Court. The first is the presentation  of evidence on direct, cross and redirect examination, a great art in itself,  but the evidence alone would often fail to attain full significance without the other  phase of the advocates work-skill in forensic persuasion which enables him to  make the most of the evidence. These matters are the heart of the lawyer’s work. (Arthur T Vanderbilt, Forensic Persuasion, The 1950 John Ralph Tucker Memorial Lectures, Washington and Lee University).
• “[I]t is peculiarly essential that the system for establishing and dispensing justice
  be developed to a high point of efficiency and so maintained that the public shall
  have absolute confidence in the integrity and impartiality of its administration.
  The future…depends upon our maintenance of justice pure and unsullied. It cannot  be so maintained unless the conduct and motives of the members of our profession are  such as to merit the approval of all”…(Lloyd Paul Stryker, The Art of Advocacy (Washington, DC: Zenger, 1954).
• The art of advocacy lies at the confluence of forensic skill, judgment and reputation…… These, then, are the  commandments of advocacy: practise forensic skill, exercise sound judgment and strive to be of good reputation (The commandments of advocacy, Richard C.C. Peck).
• “The Art of Advocacy Is Not a Science” (2006, L Greenspan, 41:3 International
  Society of Barristers Quarterly 418)
• “[A]dvocacy is plainly a method of persuasion; a method
  which relies primarily on words, though gesture and tactics play their part as
  well.” (CP Hervey, The Advocate’s Devil (London: Stevens and Sons, 1958) at 2).
• “Advocacy is “the outward and visible appeal for the spiritual gift of justice” (3. EA Parry, The Seven Lamps of Advocacy (London: T Fisher Unwin, 1921) at 13).
• “[T]here are many more factors to be encountered in a  court of law than one would imagine” (JW Ehrlich, A Reasonable Doubt (1964) at 21).

Lawyers who practice advocacy shold develop the skills necessary to develop persuasive argument and submissions and conduct an effective defense including the presentation of evidence. They should have an advance understanding of the logical relationship between issues of law, fact and evidence in the application of the proof and the case, and demonstrate correct Court procedure, etiquette and protocol.

Content

Structure of the Case
Court Procedures
Objections to Evidence
Defended Advocacy
Forensic skills
Reputation
Preparedness

Judgment
“Judgment equates with discernment. It is the ability to perceive the situation
at hand and make the correct choices. It is a critical tool for the respected
advocate. It operates at the levels of both the general and the particular. It
begins with seeing the main chance and then crafting, and applying, the
workable theory of the case in pursuit of that desired goal.”(The commandments of advocacy, Richard C.C. Peck)

“It is doubtless of great moment that an advocate should appear to believe in his
case, as he is then more likely to convert others; but I think that most counsel
would be better advocates did they content themselves with simulating the belief
instead of actually embracing it. The manifest appearance of a believer is all that
is wanted; and this…will not interfere with that calmness of judgment which it is
well to preserve in the midst of uncertainties” (The Hon Mr Justice Darling, Scintillae
Juris (London: Stevens & Haynes, 1919) at 90.)

Further reading:

•Stuesser, Lee, An Introduction to Advocacy, Law Book Company, 2nd ed. 2011 – highly recommended
•Mauet, T & McCrimmon, L, Fundamentals of Trial Techniques, LBC Information Services, 2011.
•Howie, R N and Johnson, P A, Annotated Criminal Legislation NSW 2010 – 2011, Butterworths, 2011
•Odgers, S, Uniform Evidence Law, 9th ed., Thomson Reuters, 2010.
•Palmer, A., Proof and the Preparation of Trials, Law Book Co., 2003

•Andersen, J, Williams, N, Clegg, L, The New Law of Evidence 2nd ed. 2008
•Curthoys, J & Kendall, C., Advocacy – An Introduction, Lexis Nexis Butterworths, 2006
•Glissan, J L, Advocacy In Practice, 4th edition, Butterworths, 2005
•Heydon, J D, Cross on Evidence, 7th ed., Lexis Nexis Butterworths, 2000
•Howie, R N and Johnson, P A, Criminal Practice and Procedure NSW, Vols 1-4, Butterworths
•Redfern Legal Centre, Lawyers Practice Manual (NSW), Law Book Co.
•Ross, David, Advocacy, Cambridge Uni Press, 2005
•Selby H. & Blank, G., Winning Advocacy, Oxford Uni Press, 2nd ed., 2004
•Wells, William, Evidence and Advocacy, Butterworths, 1998
•NSW Young Lawyers A Practitioners Guide to Criminal Law 3rd ed. 2004
Lawyer as Artist: Using Significant Moments and Obtuse Objects to Enhance Advocacy

J Eyster – 2011

Integrating Mindfulness Theory and Practice into Trial Advocacy

D Zlotnick – 2012
A Modern Legal Ethics: Adversary Advocacy in a Democratic Age. By Daniel Markovits, Princeton and Oxford: Princeton University Press, 2008.

The Lawyer as Gatekeeper: Ethical Guidelines for Representing a Client with a Social Change Agenda

M GARCIA – Geo. J. Legal Ethics, 2011

Beyond Advocacy Alone: Incorporating Social Work into Legal Aid Practice

MT Block… – Clearinghouse Rev., 2011

Advocacy Revalued

GC Hazard Jr… – U. Pa. L. Rev., 2011

Advocacy

Leading Case Law

Among the main judicial decisions on this topic:

In re Discipline ofEicher

Information about this important court opinion is available in this American legal Encyclopedia.

References

See Also

• Legal Profession
• Duties
• Lawyers

Advocacy & Support (Conspiracy)

This section introduces, discusses and describes the basics of advocacy & support. Then, cross references and a brief overview about Conspiracy is provided. Finally, the subject of Civil Rights Law in relation with advocacy & support is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.