Sharing the advocacy

In March 2024, the Supreme Court issued a Practice Note encouraging leading counsel to give active consideration to whether junior counsel appearing with them should have a speaking role, and requiring confirmation that that consideration has been given.

The benefits for the junior in terms of exposure and experience are obvious, and that’s the framing offered by the Practice Note. But lawyers must make all their decisions about the conduct of the case in the best interests of the client, subject only to countervailing professional obligations, and the Practice Note doesn’t modify that. We want to argue that the best interests of the client will be well-served by sharing the advocacy more often than might be obvious -- especially to KCs and senior juniors who like to think of themselves as irreplaceable.

The Supreme Court, of course, is talking about appellate advocacy. We’ve only been working together for about a year, so far almost entirely in the employment tribunals, so we risk being thought previous in offering our insights on the subject. But we spent something over eight weeks in hearings in three different cases in the course of 2025, and it’s been an interesting learning curve on both sides.

The first point is that if you’re working properly as a team, you’re sharing the advocacy anyway, even if the junior doesn’t say a word in court. They will still draft bits of cross-examination and oral submissions and will likely hear some of their lines spoken verbatim. There was a less orthodox way we shared the advocacy in one of our cases, a story we can only tell in our separate voices.

Naomi:

One of the witnesses on the other side had given some rather technical (or at least technical-sounding) evidence on a subject on which there are a lot of practised obfuscations in circulation. I was worried the tribunal might be blinded with science, and particularly keen to make sure the cross-examination landed, so I decided to role-play it the day before, with Charlotte playing the witness.

The first practice run didn’t go well. Charlotte made an infuriatingly slippery and plausible witness. I went back to my hotel room and spent the rest of the evening rewriting my questions, tightening them up and blocking off escape routes. The second attempt — and then the third, with the witness herself — went much better.

Charlotte:

I enjoyed this exercise. I’d played witnesses before, of course, in advocacy training exercises. But it had a new level of immediacy doing it in the course of an ongoing hearing, where the witness was a real person we were going to meet tomorrow. Seeing how Naomi adapted her questioning to deal with my evasions and then seeing how well that worked with the real witness was one of the most satisfying and instructive bits of the hearing for me.

Delegating cross-examination

Witness-handling lends itself particularly well to dividing up the advocacy. It’s inherently episodic, and some witnesses will be more important than others. So any nervousness about the junior taking on the speaking role can be managed by starting with one or two minor witnesses.

But more than that, there may be an important positive benefit in delegating relatively minor witnesses. Suppose there are seven witnesses on the other side, and suppose five of those seem to be the most important. If the leader is going to cross-examine all seven, inevitably the five she regards as the main event will absorb most of her attention. There’ a risk of missing something important lurking in the evidence of one of the minor witnesses. But if she delegates the two most minor witnesses to her junior, those two will hog the junior’s attention. The leader may have many years or even some decades more experience, but even so it’s easy to see how the net result may be more effective than if she’d cross-examined all seven.

It’s not just attention, of course. In a long trial, there’s also fatigue to contend with. Cross-examining makes intense demands on attention, recall and multi-tasking. Cross-examining for days or weeks on end is relentless: even in an orderly trial where all relevant documents have been disclosed in good time and presented in the bundle in a tidy chronological sequence, today’s evidence will need to be assimilated and questions for tomorrow’s witness tweaked overnight. Too often, documents have to be wrung out of the other party piecemeal, the bundle is a repetitive and ill-organised mess, the chronology and case theory are moving targets, and cross-examination notes have to be radically rewritten overnight and cross-referenced to new material.

The transition from one witness to the next can be particularly challenging if the next witness is speaking about a completely different topic from the last. It can be like sitting two exams in different subjects on the same day. And of course, you can never be quite sure how long any given witness will take: there’s an ever-present danger that you may find yourself cross-examining today a witness you weren’t expecting to meet until tomorrow. Again, there’s an obvious benefit in switching between a team of two.

There’s some scope for dark arts. A witness who’s been listening to the leader cross-examine all the other witnesses and thinks he knows what to expect may be thrown off his guard or made complacent by a sudden substitution. And then there’s the simple fact that the court may have been listening to the leader for days. Particularly if it is finding the case or aspects of it unattractive, a change of voice, face, rhythm and style may be helpful in themselves.

Closing submissions will be more readily divisible in some cases than others, but in a complex case it’s likely there are one or two bits of the argument for which the junior has more enthusiasm than the leader. As with minor witnesses, any advantages of seniority and experience may be outweighed by a combination of the benefits of reducing the breadth of demands on the leader’s attention, playing to the junior’s strength in presenting an argument she finds more persuasive than the leader does, and an intense focus of her attention on a relatively narrow issue.

The cases we’ve done together have all been in the area of the ‘gender wars’: the cluster of issues arising out of the clash between gender identity theory, which holds that gender identity trumps sex, and a man is a woman if he says he is, and sex realism (or gender-critical belief), which holds that biological sex is binary, immutable and important. These cases tend to attract intense press attention, and they are often live-tweeted, and avidly followed and picked over on Mumsnet. We’ll leave the last word to one of the Mumsnet analysts, ‘Fifer’:

‘Ah telt ye they’d gie the young team a run oot. Never been rang yit… here is the path doon the gairden, let me lead you by the haun. She’s guid. NC is no even needing to raise a finger.’