The Future of Advocacy
Advocacy is the means by which a barrister puts their client’s case to the court and may be both written and oral. It is a specialist skill, the quality and excellence of which distinguishes the Bar from other providers of legal services. Whilst it acts in the best interests of the public, the court, and the profession that barristers present their cases to the highest possible standards, we can question whether the era of advocacy is ending.
John Mortimer is indicative of the long held view that advocacy is not a skill one learns, but rather an innate talent that one possesses. However, such performance skill of advocates to address the court persuasively and concisely, presenting their cases in a manner which is clear, well organised and efficient is not as clear cut as Mortimer once depicted. Within the courtroom stage, one does not merely hire a lawyer, one hires an actor. A lawyer’s education is mostly about the law; but the practical application of law requires research, practice, experience and some knowledge of speech and acting skills. Some students are even drawn to law as they dream of being centre stage in a real-life courtroom drama, executing their flawless closing speech, as seen in shows such as Law & Order and Suits, which depict exciting, but not necessarily realistic, courtroom scenes. However, Lord Birkett, in his book Six Great Advocates, observed that:
“The advocate no longer plays the part in our public life that he once did. The fashionable divorce suit, the sensational libel action, the great murder trial – they are no longer the dramatic events that once occupied public attention to the exclusion of almost everything else. The television star and the film actor or actress, idolized by millions, now take pride of place.”
In a society governed by the rule of law, lawyers are a society’s gateway to the justice that their population is entitled to. However, as is put forward by Jeremy Robson, as society changes, so too must advocacy.
The study commissioned by Lord Thomas of Cwmgiedd, the Lord Chief Justice, said hearings should take place in cyberspace to free courts from the “stranglehold of paper”. Online courts are proposed to resolve claims of up to £25,000 and such internet-based dispute resolutions systems should mimic that of eBay’s. Each year on eBay, around 60million disagreements amongst traders are resolved through online dispute resolution (ODR) and it is arguable that such radical overhaul is appropriate for the digital age (you can read more about this on our post here). Around 80% of the UK population are estimated to be internet users, with only 3% of the adult population with no one who can help them go online; ODR may possibly be the way tomorrow’s lawyers resolves his or her client’s disputes. The ability to be heard in a large courtroom will be replaced with the ability to make oneself audible over a video link and thus the rehearsal room nature of advocacy is to be stripped of its essence.
In light of a series of dramatic reforms, reducing court time and the expansion of IT, it is clear that the current system is too costly, complex and slow. If we are to follow other jurisdictions, such as Holland and Canada, we are to reflect on these more sophisticated online justice systems for the future. While the advocate of the future may be as much a technician as a performer, his or her role as a champion of the rule of law will remain paramount as a mouth piece in society. ODR will move justice away from being accessible to some to being accessible to all and, although the profession may lose its romance, it will never lose its function.