In England the legal profession has two branches. There is also the root of the matter, but that is seldom referred to. These two branches are called—(i.) The Upper Branch, and (ii.) The Lower Branch. In great affairs the Lower Branch tells the Upper Branch what it has learned about the case from the client, and the Upper Branch tells the Court what it remembers of what it has been told by the Lower Branch. The advantage of retaining these separate branches is that where error occurs it is difficult to assign responsibility therefor. The Upper Branch learns advocacy by passing examinations and eating dinners; the Lower Branch by means of further and better examinations and fewer dinners. Those rules of advocacy that have not been learned by that method are acquired afterwards, if at all, by practical experience in the Courts of Law at the expense of the client.
To offer advice to members of the Upper Branch of the Profession on the Art of Advocacy would be unseemly, and these hints are intended—merely as suggestions made in the friendliest spirit—for the Law Student of the Lower Branch who proposes to take up advocacy in those inferior Courts which are open to him. Long experience of sitting as Judge in an inferior Court has led me to believe that it is not necessary or convenient that the advocacy should also be inferior, and I humbly commend this point of view to the younger members of both branches of the Profession.
Perhaps the most important Court from the young solicitor’s point of view is the County Court. A solicitor is allowed to act for a client in a County Court. When he is acting he has what is called a right of audience. This does not mean that all he says will be listened to by the audience, even if it be uttered in an audible voice. Moreover, the advocate’s right of audience must not be confounded with the rights of the audience themselves, who are always entitled to leave the Court if they are bored. For this purpose the Judge is not “audience.” He is bound to go on sitting, and ought to listen. The commission of Judge is oyer and terminer, but in actual practice in County Courts you will find that Judges are more ready to dispense justice terminando than audiendo.
Law students who have afterwards risen to eminence in their profession have sought to practise advocacy in their earlier years by making appearances at the local Police Courts as defendants. Much of the law of the motor-car may be learned in this matter—and much that is not law. The young enthusiast will find, I fear, that the method is an expensive one, the legal educational value of the magistrate’s dicta is slight, and the opportunities allowed by the magistrate’s clerk to the defendant for the practice of advocacy wholly unsatisfying.
Even in later life the young solicitor is not advised to begin his career as an advocate in the Police Courts. Criminals have very little cash, and ought not to receive much credit. As to licensing matters, these are wisely placed in the hands of matured and experienced advocates. A licensing Bench has always made up its mind—which is divided into two parts—long before the case is called on, and the advocate’s duty is to say nothing that could conceivably disturb the considered judgment of the Court. This is a delicate task not often entrusted to beginners, and although it is well worth while to study the technic of some of the masters of the game, yet it is to be remembered that only with a licensing Bench, and perhaps before some of the more remote Ecclesiastical Courts, is this style of advocacy required. The young solicitor will probably find more scope for his abilities as an advocate in the County Court than before any other tribunal. The Judges of these Courts are far more tolerant of advocacy and less dogmatic on legal questions than lay Magistrates, and are neither as omnipotent nor as omnivorous as Magistrates’ Clerks.
Thus much for advocacy in general. “I will now,” as Lord Chesterfield says, “consider some of the various modes and degrees of it.” I assume that you are a young solicitor entrusted by some hopeful and friendly client with a County Court Action. Your first duty as a solicitor advocate is to get something on account of costs. Do not omit this common opening. A gambit here is a mistake. The fact of your client being a personal friend makes it the more necessary. Many a friendship has not survived a fourteen days’ order to pay a debt and costs. This sum on account may prove your real and only solace (solatium) when you hear the judgment.
Always consider yourself before your client. Your client is here to-day and gone to-morrow, whilst you, I hope, may remain. Proper pride will instinctively teach you when to consider your own interests rather than your client’s. Remember Bacon’s saying that “Affected dispatch is one of the most dangerous things to business that can be.” All dispatch is indeed alien to the interests of your profession, whether affected or otherwise, but there are many forms of affectation which you will find useful to your advancement. I would not have you pretend to forget the names of the earlier cases you obtain, though I do not advise you to take cognisance of the Court number of your case. If you knew this it would save the Court officials trouble, and they are paid to take trouble. Later in life you will find it well to call the Defendant by the Plaintiff’s name and vice versa. It suggests to the Court and the audience that you have too many cases to attend to, though it will not gratify your particular client.
In examining a witness, never let him tell his own story in his own way. Many a case is lost by this. The leading question is a sign of ripe advocacy. But do not overdo it; remember over-ripeness is rotten. The seniors at the Bar are called “leaders” from their habit of using this form of question unless restrained by quasi-physical violence. Cross-examination is not merely the art of making the witness cross. If your opponent’s witness proves nothing against your client, cross-examine vigorously. By this means the truth is often brought out and justice is done. During your cross-examination notice carefully whether the Judge is taking a note of the answers you are obtaining, or writing letters. In either case do not prolong your cross-examination, for if the latter it is useless trouble, and if the former it is probable you are eliciting answers that will be used against you. In re-examination, endeavour to lead your witness once more through his proof. It is an excellent test of judicial complacency.
The rules of the County Court are to be found in books, and need not therefore be committed to memory. Indeed, most law can be found in books by those who know where to look for it. Yet it is ill to stir the green mantle of the standing pool of law yourself if you can persuade another to do it for you. A slight knowledge of the first principles of elementary law will always be welcome in any Court. You may evade a detailed study of the more intricate points in your case by insisting that it falls within the rule laid down in one of Smith’s Leading Cases. For this purpose, however, you should learn at least the one rule you propose to quote. After all, the Judge has to decide the law, and ought to know it. The legal presumption is that everyone knows the law—this includes Judges. In cases under the Workmen’s Compensation Act, be careful how you quote a decision of the Court of Appeal. It may not have gone to the House of Lords, but if it did it is well to find out what happened to it when it got there. If an appeal to the House of Lords is pending the current odds against the legal value of the existing decision will be found in any sporting paper. If, during your argument, the Judge points out to you that there is a leading case deciding exactly the opposite of what you are arguing, ask him, with pained irritation, to be patient, and tell him you will distinguish it presently—but do not try to do so. Never give yourself away unnecessarily, rather give your client away, and you will find that generosity of this kind is never forgotten.