Candour is a weapon in advocacy, a new judicial officer advised at the first of this year’s Modern Advocate Lecture Series (MALS) in Brisbane on Tuesday evening.
Justice Erin Longbottom spoke to early career lawyers gathered at Law Society House about maintaining trust, drawing on her two decades as a barrister before she was appointed to the Federal Court in December.
“When I talk about trust, my comments are not confined to or indeed focused upon the hopefully obvious requirements of ethical conduct,” she said.
“I am instead thinking particularly of the everyday actions that go to establish a reputation as an individual in who confidence can be placed.”
Her Honour said this could “sometimes be trickier than it sounds”.
“It can be incredibly tempting, in an effort to gain favour or prevent embarrassment, to undertake to do something in a time frame that is unrealistic, or to not speak up when you do not understand what you are being asked to do,” she said.
“But do not succumb to temptation. Inevitably, you will come unstuck, and which is worse your reputation will become tarnished.”
Justice Longbottom said her new role at the bench had renewed her appreciation of the criticality of trust.
“It has been said that the advocate and the judge are locked together in a mutual labour,” she said.
“Candour is an integral part of that collaborative process, and it extends beyond the advocate appearing in court; solicitors in the material they prepare and the instructions they provide play a fundamental part in litigation.”
Lawyers were not expected to be infallible, but “don’t try to fudge it”, she warned.
“‘I will have to take that on notice’ is a well-worn phrase used by lawyers appearing in court,” she said.
“When coupled with a solution, be it an answer after a luncheon adjournment, or the offer of a short note after the hearing to address the issue raised, it cannot properly be the cause of serious consternation on the part of the judge.
“But the alternative – a half-baked response, the deficiencies in which become apparent as the judge is forced to come to grips with the issue in the privacy of their chambers – most certainly will be.”
Justice Longbottom spoke about other topics including the value of service, such as pro bono work.
“The court is grateful for the assistance that pro-bono representation can provide, because a lawyer, even one not steeped in a particular area of law, will be able to bring a level of expertise and forensic judgment to a matter that a litigant in person may not,” she said.
“So, it is an excellent opportunity to be involved in a proceeding before a thankful judicial audience.
“That is not to say that you will be successful, but rather that the court, in all likelihood, will be cognisant of the assistance you are providing them that they might not otherwise get.
“Put another way. It can be a safe space in which you can expose yourself to a new and interesting area of the law.”
Her Honour also pointed to the importance of humanity in lawyering.
“Humanity and strength are not mutually exclusive. It is possible to do your job, even an unpalatable one of refuting someone’s credit or putting their claim in issue, in a way that serves your client’s best interests but also does the least possible harm,” she said.
“There is also scope for humanity in the mundane, day-to-day practice in the law. It is inevitable that you will find yourself in a situation where a colleague is vulnerable in a practical sense.
“For example, they are asking your client to agree to an extension where no prejudice flows, or to negotiate a sensible resolution to a practical, inconsequential issue.
“It is surprising how often you see the keyboard warrior take over. Rather than a quick phone call and a follow-up email, a missive comes across your desk replete with some of my favourites such as ‘with respect’.
“Of course, there will be situations where there is no room for agreement, but where there is, avoid the temptation to be difficult, just because your opposing solicitor is, or you are under the misapprehension that compromise where possible is weak – it isn’t.
“Those missives just end up running costs and what’s worse, it leaves you with Buckley’s Chance of getting a concession from the other side when predictably, it is your turn to ask or an indulgence.”
She also pointed to the value of professional curiosity, and the importance of courage.
“I cannot overstate the importance, if you are to have a long and fulfilling career in the law, of finding the tools that give you the courage, not only to survive, but to thrive, and to expose yourself to new and challenging opportunities,” she said.
Her Honour concluded by encouraging attendees to have faith.
“That is not to say that it will always be as you envisaged,” she said.
“But all in all, whatever specific path your professional life leads you to, have faith that if you invest in yourself and your career, it will be something that brings you fulfilment.”
MALS, run by QLS, is in its eighth year and provides junior practitioners with practical advocacy skills directly from the judiciary.
The lecture will be available to members soon on the QLS Shop. Keep an eye out for details about the second MALS for the year on 19 August.
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