Despite its name, The Advocate has nothing to do with advocacy. It is not a part of any law school. It publishes the poetry, fiction, and artwork of undergraduates, before they grow up. At that point, a lack of food and shelter forces many of them to become lawyers. Such was my fate.
But why should literary pretension ever yield? As poetic types enter the legal field, American law might take on a certain literary quality.Writing–written advocacy–is the norm in American civil litigation. Oral arguments are short, if judges hear them at all, lasting only 30, 20, or even 10 minutes per side. Trials almost never happen. We win cases on the papers, tilting at one another in these invented literary forms: briefs, motions, memoranda. Their rhythm of sources and rhetoric, their aesthetic of authority, lies somewhere in the space between high art and Harvard hubris.
I knew no higher form of argument until this past spring, when I became a guest of the Pegasus Scholarship Trust as one of two American Pegasus Scholars. Now, I was surrounded by a very different kind of advocate. Now, the writing was secondary–secondary to hours of rhapsodical disputation, the turning over of each stone, the look at every facet of the gem. Written submissions may be “moving in an American direction,” as I was told, but they still need human breath.
What is it about in-court argument that captivates English lawyers? What makes it possible, and what is it for?
The faith of the court
In the course of my six-week visit, I came closer to understanding what sustains the English tradition of live argument. My first clue took the form of a word, a single, simple word, “Yes.” It is a word that many judges will repeat as you begin your submission: “Yes…yes…yes…”
To an American ear used to the American mode of oral argument, this word comes as a shock. Over here, we hope our judges believe us and agree. But in my experience in private practice and as a law clerk to federal judges, we do not expect them to tell us straight out. I see too much tension between the American bench and Bar for that sort of openness. It is a tension that is hostile to live encounters. It is hostile to prolonged encounters.
This word alone, “Yes,” might signify the deep trust between the English bench and Bar. That trust is one of the best features of the divided profession that exists in the U.K. Separation from the client promotes candor and objectivity in the courtroom. When oral advocacy becomes too tendentious, it ranges into fallacy, it ceases to be counsel, and no court would want to hear it.
Not only do longer arguments require trust–they foster it. English advocates stand by their points for hours at a time. They are held to account at every turn. This system would soon break down if the advocates lost the faith of the court.
Toward a clearer persuasion
That is not to say distrust guides the American profession. There are many good reasons that we rely on written briefs. American legal research is complex, with endless variation among fifty state legal regimes and dual federal-state court systems. Adherence to a written constitution creates analytical challenges that verge on the medieval. Our mazes of statute and precedent are easier to trace out on paper. And on paper, it is easier to expose abuses, mischaracterizations, and miscalculations of the law.
But intricacy is not anyone’s goal. There is much to be said for the confidence to isolate and argue the thing to be decided, to argue it directly, essentially, which oral argument cultivates and which I saw many barristers do. Too much exegesis will cloud both advocacy and judgment. Our late Justice Robert Jackson, a man celebrated for his legal writing, once said, “When the Supreme Court moved to Washington in 1800, it was provided with no books, which probably accounts for the high quality of early opinions.”
In this sense, the strength of the English oral tradition is a valuable reminder that the law is not a computer. Persuasion is not a closed proof. Logic must at some point yield to judgment. The best advocacy, like the best judging, must grasp the law in a literary way--more than literally. And to this, it should not matter whether the form is oral or written.
The author sends special thanks to his hosts in chambers at 7 King’s Bench Walk and 5 Raymond Buildings
John DeStefano, Snell & Wilmer LLP