Advocacy focuses on written word

The key to advocacy is to recognise that it has changed, Justice David Boddice advised at the Gold Coast Legal Conference on Friday.

His Honour delivered The art of the advocate with Brisbane barrister Jane FitzGerald, at the annual event at RACV Royal Pines Resort at Benowa.

“It has changed in a way where we’re not going to go back to the old advocacy – the primary focus now is written advocacy…and that means that the applicant has to be even more persuasive when they are dealing with the oral advocacy,” he said.

“The way you structure a case now is that you do have to structure it in a way that you accept that the written advocacy is really going to set out the basics and the relevant law and those matters, and your focus in your oral advocacy is going to be way your client should prevail.

“It is a skill set that is very different to the advocacy of days gone by where oral advocacy was the key.

“Government don’t like appointing extra judges, so the increase in the court filings is not going to be met by an increase in the number of judges; it will be met by efficiency and the way that we can change that efficiency is the style of advocacy.”

The session was chaired by Gold Coast Principal and QLS Councillor Mia Behlau, who asked prepared questions and questions from the floor.

One such question related to the differences in advocacy between applications and trials.


Justice Boddice took questions from the floor.

“It needs to be brief, it needs to be persuasive, and it needs to be done in an ordered way which ticks off all the things that are necessary in order for your client to get the orders that they seek,” Justice Boddice said of advocacy in applications.

He also warned practitioners to ensure their case was appropriate for the applications list.

“Nothing is more annoying for a judge than to have a matter that should in fact be on the civil list,” he said.

“That also applies to applications on the papers. Increasingly I am seeing that more and more people are wanting to say that something could be determined on the papers when it plainly couldn’t be determined on the papers.

“If there really is an issue for the judge to exercise their discretion, or something like that, then it’s not an appropriate case to be dealt with on the papers.

“All that happens is that you delay it for your client…”

QLS Councillor Mia Behlau and barrister Jane FitzGerald.

Jane referred to an advocate’s need for preparation, in content and delivery.

“In order to give a skilled presentation, it’s not just about being prepared in terms of content, its about being prepared in terms of how that material is going to be delivered,” she said.

“And that involves understanding of what the court processes are, it involves an understanding of what’s available to you – can you have an audio-visual presentation, for example, as part of your case?”

Justice Boddice was asked to provide tips for an early career lawyer considering a career in advocacy, and he provided three: authenticity, brevity and judgment.

“Authenticity, in that you have to have your own style. You will see people who try to copy styles they’ve seen – it’s not them and it doesn’t work well,” he said.

“You are at your best persuasively if you are authentic.

“Brevity is simply recognising that courts are getting busier and time, therefore, is precious, so you need to be as brief as you can be whilst saying all that you need to say on behalf of the client.

“Judgment is about taking the points that really matter and not worrying about the ones that don’t, because if we take every point, the one that matters will be lost.”


Both panellists shared tips with the audience.

His Honour was also asked about the biggest dos and don’ts in court advocacy,

“The biggest don’t is overstating the position. It’s very unhelpful for a judge to overstate the position whether as to the law or as to the facts,” he said.

“The biggest do is to up-front identify what the ultimate issue is that the judge has to decide.”

He also said practitioners had “fallen into the trap” of having witnesses give evidence remotely.

“I don’t think it actually helps a case, quite frankly,” he said.

He said studies were showing juries engaged more when evidence was given in person.


Jane FitzGerald emphasised the need for preparation.

“Another aspect of evidence that is given remotely is that often reflects on the witness in that the witness doesn’t see the significance of giving evidence in the same way (as in court),” he said.

“They’ll pull off to the side of the road and be on their mobile phone giving evidence – that’s not a witness who is best prepared and (has) settled themselves down to give evidence in the solemn way that it should be given in a courtroom.”

Justice Boddice was among an impressive list of presenters from the judiciary, private bar and local practices at the annual one-day event, which covered practice issues, challenges and latest developments across three plenary sessions and two session tracks.

Keep an eye on Proctor for more conference coverage.