Alternative Law Journal
by Hugh Selby; Oxford University Press, 2000; 91 pp; $35.95.
This is a basic 'how to' book for beginner advocates. The author, Hugh Selby, is described in the cover notes as a practising barrister and as a and junior advocates who wish to learn and to improve their advocacy skills, but also to lay people who find them selves participating in the litigation process as self-represented litigants or witnesses.
The author has made a concerted attempt to keep his language and terminology simple. The book is almost entirely devoid of legalese. Where the author has considered it necessary to introduce a difficult point or principle based on case law or the rules of evidence or procedure, he does so succinctly and then reverts to the simpler style, leaving it to the reader in their own time to consider and read more about the complex point. A good example is the discussion of the duty of fairness and the reference to the application of that rule where the defendant has filed a cross-claim (p.l51). In this way, the author notifies his readers of a potentially complex substantive, procedural or evidentiary issue that must be borne in mind, without sacrificing the accessible style which is the hall mark of this book.
Not only has the author ensured accessibility by avoiding legal jargon; he has also written the book with the self-represented person in mind. Chapter 3 is specifically aimed at litigants who represent themselves. Considering the increasing number of people who are representing themselves before courts and tribunals, this is a welcome addition to the literature on advocacy skills. There is a wealth of practical and useful information in this chapter for the self-represented litigant, which if read by them would help to allay the stress caused by their participation in the litigation process. This would in tum facilitate the smooth functioning of court procedures, thereby performing a useful function for other stake holders as well. This chapter would also be useful for lay people who must go to court as witnesses to give evidence, either in a 'one off situation or
more frequently as police officers or experts. The very practical and useful advice for witnesses in this chapter is
advice that busy lawyers might tend to forget to give- there will be a long waiting time; you cannot come into the courtroom while other people are giving evidence. Also, advocates who are dealing with inexperienced or apprehensive witnesses would do those witnesses a service by recommending this chapter.
Four typical case examples-a dispute between a landlord and tenant, a dispute between a homeowner and a builder, a shoplifting case and a drink-driving case-are introduced on the first page. The author returns to these case examples throughout the book to illustrate and explain the points he wishes to make. The effect at the end of the book is that the reader has had the advantage of seeing four common but varied cases unfolding and has been able to follow them from initial occurrence (in the store, on the road, at the worksite) through the various stages of case presentation to the closing argument. This is an effective technique and enhances the considerable teaching and learning potential of this book.
Most good advocacy books include sample examinations-in-chief, cross-examinations and opening and closing addresses to demonstrate particular points, and this book is no exception. Such illustrations are essential in a book aimed primarily at beginners. In the chapter on cross examination, for example, every main point of instruction or advice is followed with an excerpt from a 'transcript' of one of the four sample cases. The author uses examples effectively, not only to demonstrate good advocacy, but also to demonstrate bad advocacy. The excerpt of a cross-examination at p.82 is an example of this approach.
The usual topics found in a good advocacy skills book are identified and explained, for example, the difference between open questions and closed questions and when each of these is appropriate, the importance of body language during the trial process, the importance of being aware of how the judge is reacting to questions and answers, and how to develop a 'game
plan'. This last point is perhaps the best example of the effective use of the four case studies. In Chapter 2, the author presents a detailed explanation of what the game plan should (and should not) be for each of the four cases. This is something which beginner advocates often find difficult, especially developing the theory of the case, and use of the case studies in this context in Chapter 2 should therefore be especially instructive.
The importance of telling an interesting story and engaging the attention of the judge and jury is effectively conveyed by the author. In Chapter 4 he explains how to present an interesting, succinct story to the audience -judge or jury -in such a way that captures their interest, encourages them to participate as the story is developed, and presents them with an organised agenda of the story in such a way that they arrive at the conclusion before it is explained to them by the advocate. Essential to achieving these goals are preparation, organisation and presentation skills, and all of these skills are explained in detail. The opening and closing statements in this chapter are excellent examples of how to begin with an organised, succinct description of a case that puts it in a context, highlights the strengths and deals with any weaknesses.
Law and legal texts are often criticised for being inaccessible and impenetrable to people not legally trained. Mr Selby has written a book that easily escapes such criticism. Winning in Court, An Introduction to Advocacy is an excellent, perhaps even unique, attempt to write a book about a potentially mysterious and inscrutable pro cess which makes that process accessible to both professional and lay people. This is an excellent book for students or beginner advocates who are trying to learn and improve the basic skills of advocacy. It would also serve as an excellent teaching guide in advocacy classes for law students and new advocates. Most of the important themes that would be explored in advocacy training courses for these groups are made and illustrated with clear, relevant examples. But perhaps its most unique contribution is that the author has succeeded in making the book accessible to lay people who are involved in the litigation process as witnesses or as self-represented litigants.
Camille Cameron teaches civil procedure and dispute management at the University of Melbourne.
VOL. 27, NO. 4, AUGUST • 2002