Why advocacy standards must be maintained

'High standards in advocacy are essential to preserving the rule of law and high quality advocacy training is essential to achieving this standard.' This was the message of the first International Advocacy Teaching Conference hosted by the Centre for Advocacy at Nottingham Law School.

At the first conference in the world to focus purely on advocacy teaching, we brought together advocates, judges and legal educators from different backgrounds to share good practice and discuss pressing issues in advocacy training.

The courtroom is the primary location where individuals in society have an opportunity to ensure their rights are protected and the way in which an advocate argues their case protects these rights and ensures they are upheld.

Simplify, not complicate

As Sir Bill Jeffrey commented in the introduction to his Independent Review of Criminal Advocacy: "If prosecution and defence cases are not clearly made and skilfully challenged, injustice can and does result. Effective advocates simplify rather than complicate; can see the wood from the trees and enable others to do so; and thereby can contribute to just outcomes, and save court time and public money."

This applies in all jurisdictions where cases are determined on an adversarial basis. Advocacy is a skill which is developed and refined through a combination of training and observation. Without thorough training and assessment from trainers with experience in advocacy, advocates cannot develop the ability in analysis and clarity in presentation that make them "effective."

With changes to legal funding, the issue of advocacy trainers needing to do more to ensure that these standards are met was also highlighted. There are concerns from the judiciary and practitioners that there has been a decline in the standards of courtroom advocacy from all sides of the profession. One of the major concerns is that with cuts in legal aid and the dramatic fall in the income of criminal practitioners, advocates are feeling compelled, through economic necessity, to accept cases which are beyond their competence.

Financial landscape

This financial landscape is unlikely to improve in the short to mid-term. Advocacy training needs to be sufficiently robust to ensure that in the first place advocates have the confidence and ability to know when to refuse to accept a case, but also to consider whether the standards to which advocates are trained and by which they are assessed as competent to appear in court are sufficiently high so as to maintain public confidence.

One of the areas of concern identified as being in need of review at the conference was the disparity between the way in which advocacy standards are taught and assessed at postgraduate level.

Barristers are required to undergo an intense training regime focused primarily on the skill of advocacy as part of the Bar Professional Training Course (BPTC), whereas solicitors can be assessed as fit to practice advocacy following limited teaching on the Legal Practice Course (LPC) and professional skills course if they successfully complete the higher rights of audience assessment. Although advocates would naturally be drawn towards the BPTC, the high cost and poor prospects of obtaining a pupillage deter many.

There is no doubt that both professions have both excellent and poor advocates, but for the public to have confidence in the ability of their representative, the systems by which they are trained and assessed must be robust and consistent.

Public interest

There are core standards by which the quality of advocacy can be measured and all advocates, regardless of background or regulator, need training in them. Good practice in training advocates has been developed across professions and jurisdictions and it is in the public interest that this good practice is disseminated and developed between all those involved in the training of advocates to ensure that standards are raised universally.

On an international level, the discussions provided a sobering reminder of the challenges that advocates face in some jurisdictions and the important role that advocacy training can have in empowering them to challenge corruption and oppression.

Through organisations such as the Advocacy Training Council, Solicitors' Association of Higher Court Advocates and International Criminal Bar, UK and US advocates have played a vital role in assisting advocates in developing nations and their training can enable overseas regimes to instigate change in their own jurisdiction.

In the experience of some of the speakers at the event, advocates needed to be given the confidence to appreciate that cases should be won by the quality of advocacy and not through bribery and corruption. In other jurisdictions, advocates who challenge the state take their lives in their hands by doing so.

Good advocates learn through a combination of training and observing the practice of others. Where those opportunities to observe others are limited it is all the more important that advocacy trainers are able support them in presenting cases effectively, accurately and persuasively.

The conference marked the launch of Nottingham Law School's Centre for Advocacy which aims to develop scholarship into the practice and teaching of advocacy. Nottingham Law School plan to host the next International Advocacy Teaching Conference in summer 2016. Details of the programmes and slides from presentations can be found online at www.ntu.ac.uk/advocacy

Jeremy Robson is director of the Centre for Advocacy at Nottingham Law School

www.ntu.ac.uk/nls