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The Devil's Advocate

Updated: Feb 28, 2022

A friend of mine who just finished Bar school recommended this book to me before I started the course. It was great pre-course reading because you have a seasoned practitioner breaking down the art of advocacy quite eloquently. Understanding the fundamentals is invaluable and lets you make the most out of the limited advocacy workshops you have on the course.

 

About the Author

Iain Morley QC is a barrister at 23 Essex Street, practices in criminal law and is an established advocacy teacher. He has practised in all aspects of domestic criminal law. Since 2005, he has become a well-known figure on the international circuit, practising in genocide, war crimes, crimes against humanity, and international terrorism. He has appeared and taught in nineteen jurisdictions.


Book: The Devil's Advocate


The Premise of the Book

An advocacy manual in both the UK and the Commonwealth which sets out the Do's and Don'ts of good advocacy.


The Book in a Nutshell

  • The book bridges the gap between theory and the practical application of advocacy. It outlines techniques and sets out practical steps for advocates to follow.

  • Examination-in-chief (EIC) and cross-examination (XX) are covered extensively, teaching how to question and handle witnesses properly.

  • It explains how to make convincing opening and closing speeches and what underpins a persuasive argument.


Key Ideas

  1. Advocacy is a Skill

Advocacy is the skill of persuasion which is an art, not a science. An advocate does not force someone to agree with them but presents an argument that makes people want to agree with them. Like any skill, advocacy can be learnt (natural talent lends itself to brilliance).


2. Adversarial vs Inquisitorial Systems

The former is not an enquiry into the truth like the latter. Instead, the adversarial system creates a "polite contest" in which:

  • Judges or juries will seek out the truth as best they can from listening to the evidence called by advocates.

  • Advocates use their skills to test the evidence.

  • Advocates use their skills to control the way the evidence emerges.

  • Advocates use their skills to commit in closing on whether a case, having been tested, has proved against the burden and standard of proof.


3. The Hallmarks of a Great Advocate

  • Integrity

  • Invisibility

  • Irresistibility


4. An Irresistible Argument Must Be

  • Reasonable, not emotional

  • Elegantly delivered

  • Common sense

  • Well prepared


5. When Asking Questions of a Witness

Don't fall into the trap of being embarrassed by silence. Relish in it. Use it to create tension. Use it to create command. Don't hide from it.


6. During EIC

What is of paramount importance is that we know clearly what our objective is with each witness. Don't shoot in the dark.


My Favourite Quotes

“Being an advocate is about winning within the rules”
“Advocates are supposed to be selfless members of a quasi-priesthood, not haggling traders in a market: do not sell out – client first, you last”
“The closing speech is the reason advocates exist. It is their weapon, their art, it is the moment for persuasion”

Actionable Takeaways

  1. The Golden Rule

With legal writing "less is more".


2. Prosecution's Opening Speech

Should address:

  • Facts.

  • Law.

  • Burden and standard of proof.


3. Non-leading Questions

Usually will begin with:

  • Who.

  • What.

  • Why.

  • When.

  • Where.

  • How.

  • Please describe.


4. 10 Tenants of XX

  1. Think commando - XX is about going in, getting what we need and getting out

  2. When we’ve got what we want for our closing speech... stop

  3. Never ask a question to which we don’t know the answer to

  4. Always ask leading questions

  5. Never ask the witness to explain

  6. Reserve our comments for the jury not witnesses

  7. Never ask a witness for help

  8. Only ask one question at a time

  9. When putting our case tell the witness he disagrees with it

  10. Bounce for confrontations – like a tennis ball bounce our case off the witness


Impact Statement

“Make the argument irresistible. Be invisible, behind the argument. You are not a gladiator. Never frogmarch the tribunal – instead, quietly show the way”

 

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