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Episode 01
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Barristers’ Skills Professional Skills
The View from the Bench – Tips for Aspiring Advocates
Law as stated: 13 August 2020
What is this?
This episode was published and is accurate as at this date.
The Hon Justice Lucy McCallum JA gives some guidance to aspiring advocates, for both first instance and appellate advocacy.
Barristers’ Skills Professional Skills| What area(s) of law does this episode consider? | McCallum JA shares her advocacy tips, gained from her own broad and deep experience at both Bar and Bench – from preparing a case, to appearing at first instance and on appeal, to handling the disappointment of losing a case you expected to win. |
| Why is this topic relevant? | Advocacy is the core skill of every barrister, and an essential skill for most solicitors who are litigators. But no one is born a brilliant advocate, and the best advocates prepare for their appearances meticulously, rather than ‘winging it’ on some innate natural talent. In this episode, you will learn specific techniques and systems to prepare for an appearance and have a more complete understanding of your case before you rise to your feet. |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Judge Carlton Reeve’s sentencing of the three men who killed James Craig Anderson Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2020). |
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. The Honourable Justice Lucy McCallum, now a judge of Appeal of the Supreme Court of NSW, has had an unusually diverse career in the law. From administrative law, defamation, environmental law, torts, competition, consumer law and crime for both the Crown and the accused, inquests and Royal Commissions, and now most recently as a trial judge and then a judge of appeal. Since we so often hear the conventional wisdom that advancing one’s career in the law is all about obtaining ever more granular specialisation as a niche to carve out for yourself, it’s refreshing to read about a leader in the legal profession with such breadth of experience. Justice McCallum and I will be talking about the benefits of broad experience in one’s legal career, as well as the advice that her Honour can share with young advocates from her own broad experience. Justice Lucy McCallum, thank you so much for joining us today on Hearsay! |
| Justice McCallum: | Thank you for having me. |
| DT: | Now let’s start with your tips on advocacy. In your swearing in speech you recounted the late Justice Peter Hely’s golden rules of litigation, and one of those rules is that ‘there’s no argument worth putting that can’t be reduced to a page of written argument.’ Which is an idea that I just love, I love this idea that brevity is a virtue. Tell us more about that virtue of brevity and how our listeners can reduce their arguments to their essence? |
| JM: 2:00
3:00 | Peter Hely was a God. He worked hard, he would work on shedding the chaff and serving up only the wheat in a legal argument and he would refine and refine and refine and by the time he got to court, he had the judges hanging on every word because every word he said was worth listening to and worth absorbing and mulling over. I guess there are a number of virtues of brevity, one is that you have to know your argument very well to that Peter Hely level in order to be able to reduce it to a page of written argument. TIP: Peter Hely QC was a giant of the Bar and Bench, one of the most prominent commercial silks of his generation before his elevation to the Federal Court of Australia where he served from 1998 to 2005, when he tragically died at the young age of 61. He was renowned for his clarity of expression, his work ethic, and his meticulous preparation. One technique Hely used was to start by writing a list of all the legal propositions that were likely to come up in a case – for example, that a contract requires offer, acceptance, mutual consideration and intention. For all the ones that supported Hely’s case, he chose a single authority to support them, and for all the ones that went against him, he chose an authority that explained the limits of those propositions. Then he would write down a list of all of the facts that needed to be proven to make those propositions true in the present case – going back to the essential elements of a contract for a moment, that a contract was accepted by part performance for example. That sounds like an effective, and concise, blueprint for a case, and one that would certainly help in getting an argument down to its essence. You have to have turned it over and looked at it from so many directions that it’s probably going to be a sound argument once you’ve got the capacity to distil it to that level. |
| DT: | I can’t remember who said it but the old quote is that ‘advocacy is the art of persuasion but preparation is the tool of the artist.’ |
| JM: 4:00
5:00 | Yes absolutely and that was one thing I was going to come on to say in answer to your question how listeners can reduce their arguments to their essence and that is preparation, preparation, preparation. Brevity is a function of knowing the case back to front and knowing the law back to front and knowing the context, around the argument. Whether you’re delving into a controversial area of jurisprudence, whether you’re appearing before a conservative judge with a radical argument, that kind of context as well I think is part of it. But just coming back to why it’s important to be brief, I mean it saves court time, Civil Liability Act puts that duty on you to be just, quick and cheap and not to spend, not to incur too many costs in preparing arguments because you’ve got your requirement in section 60 of proportionality. But it also saves judicial boredom. I mean judges are people too and not necessarily the best kind of people, some of us are impatient and petulant, some of us can lose concentration easily and if you get your feet and present a well-refined, brief summary of your argument, I think you’re likely to be more persuasive than if you get to your feet and begin with the name and address of the plaintiff and the car she was driving and so on. |
| DT: | I think that point about judges being people too is a good one, and it’s one we often forget. This is something that’s sometimes said in the context of discovery that sometimes people treat the bench as a bit like a computer that you just feed in all of the material you possibly can and expect the perfect result from as much material as you can give. But I think the analogy is probably equally apposite here. |
| JM:
6:00 | I think that’s right. One of my former colleagues from the 6th floor, Guy Reynolds is a very refined advocate as well, used to refer to that as the ‘dump truck’ brand of advocacy where you just throw all your evidence and authorities onto the back of a truck and reverse it up into the Supreme Court and tip it into court 11A and hope the judge will absorb it. And it’s not a very helpful method of advocacy to overwhelm the judge with too much material. |
| DT: | Do you think it’s sometimes a case of adopting the old saying from creative writing that you have to ‘kill your darlings’? |
| JM:
7:00 | Yeah, I love that. In fact Caroline Simpson when I first came to the court, puts it the same way but she says ‘you have to be prepared to kill your babies’ in a judgment. And that applies just as much to judges in judgment writing as it does to advocates in writing submissions. Quite often you can work up a point and just really fall in love with it because you’ve, you know, thought of it yourself, ego comes into it I guess, and you need to have that ability to stand back from the submission and look at that beautiful paragraph and you might think that’s for another day, you might save it somewhere, but you need to know when to cross it out, you know, that’s not for this case, I don’t need that today. |
| DT: | Yeah and both of those points really, right? That there’s sometimes a carefully crafted or constructed argument that you’re very wedded too, but it can also just be a matter of expression. I mean I know sometimes that you write submissions and you think ‘what a wonderful turn of phrase, I really want to say that,’ but it’s not… |
| JM: | Not the right place or the right time. It’s a discipline I do need to apply to myself often. Killing my babies. |
| DT: | Now another of Healy’s golden rules is that ‘there’s no such thing as a case that can’t be lost’ and I certainly am familiar with that rule, I think everyone can think of a time where they’ve been subjected to that brutal truth. Can you tell me about a time that you were reminded about that rule in your own practise? Perhaps before coming to the bench? |
| JM: 8:00
9:00 | I had to think hard about this one because there’s such a rich choice. But some people might not count this as a case I lost because it’s a story about a criminal sentence proceeding but I think anyone who has practised in criminal defence law would accept that even when your client pleads guilty, to get a bad result after a sentence hearing really does very much feel like losing a case. So the story I want to tell is a case I did in my early years at the bar, a legal aid case and my client pleaded guilty. We went before the District Court judge who gave us what was then called a Griffiths remand, which is now reflected in section 11 of the Crimes Sentencing Procedure Act, which is where the sentencing proceedings get deferred to give the offender an opportunity to undertake rehabilitation or such like. And it’s as close as a judge can come to telling you that they’re not going to send your client to jail. So I walked out of court thinking that was a good result we can’t lose this case, he’s not going to jail. And unfortunately in the intervening six months of the Griffiths remand, there was a case, a similar case where the offender had been given I think a suspended sentence, and there was, and the court of criminal appeal had overturned that sentence and increased it and put him inside. So when I went back, the judge felt bound to sentence my client to a term of imprisonment when we had not been expecting that at all. And I just remember feeling absolutely devastated by that result in that case. And I guess the thing, the lesson there is that things can change and change quickly. And one thing that can change is the law while you’re preparing for a case and…but all sorts of things can change. So I guess to guard against surprises you just need to work on the basis that you need to be prepared for every contingency. |
| DT: 10:00 | I mean that experience must have been so frustrating because you had been to the hearing and it had felt like such a win. I think sometimes you go to a hearing and you know even if judgment is reserved, you have a good feeling about whether or not it went well, but that that must have been very difficult to handle that extraneous circumstance kind of resulted in that outcome. Do you have any advice about handling the disappointment of an unexpected loss? |
| JM:
11:00
| Look I think it’s extremely important to stay connected with friends and probably preferably to have a couple of good friends who are lawyers. I mean friends and partners who aren’t lawyers can always be comforting but I think it’s good to go and talk after you’ve had a bad result to someone to who you know understands the sort of mechanism of what happened and what you’re talking about at a legal level. I’m very lucky to have some very good female friends who can always be counted on to listen if I’ve had a bad day and really kind of put things in perspective for me and I think it’s important to do that. Also just to remember that you’re part of a system, you’re part of an organic system where things can change and things can go very differently from how you expect. You might find that in your preparation you thought that an area of the law was very clear but it wasn’t. You might find that you’ve appeared before a judge who’s got a particular interest in that line of jurisprudence and wants to change it, so you find yourself suddenly thinking the law was well established here and it’s actually changed. You might find that a witness who was very relaxed and seemed very confident in your chambers, when you go to court has burst into flames and run out of the witness box with their arms on fire. Speaking to people about the fact that it’s you know, you can control how you prepare for a case but you can’t control the result. I think that’s an important message and friends can share that with you. I also think it’s important to keep yourself healthy, you know physically and mentally. So just switching off and going and doing something completely unrelated to the loss in the case is a good way of getting over it. |
| DT: 12:00 | I think sometimes it’s a bit easier to go down on the facts, isn’t it? Because particularly if you feel that your witnesses are well prepared for court, you almost feel as though you could never have predicted that happening. But your point about being part of an evolving system, a common law system where these decisions are changing and advancing the law is an interesting one. And one I haven’t thought about before because I think sometimes where we’re unsuccessful because of a point of law, it can feel like a personal failing. That that was an area that I was supposed to be all on top of and I must have missed something in my preparation of the case, but I suppose that’s a particularly important point in appellate advocacy. |
| JM: 13:00
14:00
15:00 | Yes and I think also at first instance I think again coming back to that fact that you often forget which is that judges are people, we, I mean you’re likely to, we judges obviously we bring impartiality to our work. But at the same time it’s unlikely that the judge you’re appearing before or a magistrate doesn’t have a particular view about some issues. And so you’re going to find that there’s cases where you experience pushback where you didn’t expect it. TIP: One effective way to minimise this unexpected feedback is to research the judge you are going to appear before. Find a swearing-in speech, if you can – in the Supreme Court and the Federal Court, transcripts of the swearing-in speeches for all currently sitting judges are available online. A swearing-in speech will give you an insight into the judge’s areas of practice when they were a barrister or solicitor – the area they specialised in, maybe some of their better-known cases, and the things they particularly value – like keeping your list of authorities brief or not taking every objection (though you’ll be well-served by doing both those things in front of every judge). Now we’re not saying that judges have biases based on their past lives in practice, we’re just saying that it helps to know your audience and that the force of an argument can be improved by tailoring it for that audience. I mean an example is, you think of all of the jurisprudence around standard non-parole periods. For however long it was, the decision in Way[1] told judges that the way that they used a standard non-parole period was to start with the standard non-parole period for the case in the middle of the range, and then sort of oscillate around that point. High Court in Mudlrock[2] said ‘no that’s wrong. That’s not what the section says.’ So leaving aside the fact that many people got sentenced by a method which turned out to not be being sentenced according to law, for a long time judges were entitled to read Way, a decision of the Court of Criminal Appeal, and think that’s the approach I have to take. And it took a sort of evolving idea put forward by some clever barristers, probably from Forbes chambers, and a sort of open-minded High Court to change that. Well that’s the situation you’re talking about where you might go into court thinking ‘I know what the law is here, I know what I need to submit,’ judge is perfectly entitled to rely on a decision of the Court of Criminal Appeal, but all subsequently be held to have been getting it wrong for a long time. So that’s the kind of thing you just can’t foresee really. |
| DT:
16:00 | Another advantage that more established or more experienced advocates can draw on is that they can find that their reputations sometimes precede them and that those reputations assist them because judges trust their arguments and trust what they say about the law, or they can be relied on to get that right most of the time. But less experienced advocates can’t really rely on their reputations to shore up or to support their interpretation of the law or a submission that they’re making. What’s something that less experienced advocates can do to help win the trust of the bench early on in appearance to show that you know ‘I have prepared, I do know what I’m talking about when it comes to this case?’ |
| JM:
17:00
18:00
19:00 | I think there are a number of things. I mean one comes back to the rule I said before preparation, preparation and preparation. Nothing undermines the court’s confidence more than an advocate who can’t answer a question that they should have the answer to at their fingertips. So a simple question about the background to the case, or where a particular document is to be found in the papers, you just should have a complete mastery of your brief and the circumstances in which the proceedings were brought and what you want. I guess that actually, that leads me to another point, knowing what you want. Quite often I think young advocates stand up and make a bit of a speech about the case and how we got there and how we got to where we are today and the judge is just thinking ‘what orders do you seek?’ I’ve heard that question repeated by increasingly irritated judges. ‘Oh my learned friend hasn’t complied with their discovery and we’ve written to them seven times and we’re really annoyed’ and you go: ‘what orders do you seek?’ So I think knowing what you’re asking for and why, but being able to present it quickly and using the courts’ time efficiently. Obviously at the moment I’m talking about mentions or arguing notice of motion that kind of thing. Don’t run stupid points, don’t overly explain, don’t apologise for things that aren’t your fault just get to the point, say what you’re there for today and why you should have the order that you seek today. But at the same time I would want to encourage advocates, while still being well prepared and respectful and using the time efficiently, not to be too sycophantic and not to let yourself be bullied by very experienced judges. And I’ve seen it happen particularly in, I suppose in the appellate context because I can see it because I’m sitting with two other judges. But you might hear an advocate putting what might be a perfectly respectable point and it’s just an argument that a particular judge might want to shut down. And you see people in the face of a judge sort of saying ‘well that’s not right’ sort of backing off and becoming a bit timid to run the point and thinking ‘oh, well I must be wrong or they don’t want to hear about that.’ I would urge you if you’re well prepared and if you’ve looked at the cases and you think you’ve got a respectable argument, don’t let the first reaction of a judge necessarily put you off. I’m not saying, you know, hold onto a point like a dog with a bone never let it go until the judges are red in the face with irritation, but don’t necessarily think that because the judge’s first reaction to your argument is not a positive one that you should let it go. You have an entitlement to robustly present your arguments in the best interests of your client. |
| DT:
| And I guess particularly in the context of appellate advocacy I suppose you have to remember that you’re making that argument not just for the benefit of one judge on the bench who might have taken an initial adverse view of that argument, but for the benefit of all of the other judges of appeal who are listening to that argument. Also on the subject of appellate advocacy, I suppose sometimes there’s a situation there isn’t there, where at first instance you might have to make an argument that you know isn’t being received well, but you nevertheless have to make it fully for the purposes of the appeal later on. |
| JM: 20:00
21:00 | Well you can, if it’s a question of there being a binding principle, you can say ‘I appreciate that your honour is bound by this case but I make the formal submission that that case was wrongly decided.’ You can put it that simply. But yes certainly if you’re wanting to pave the way for an appeal. Another context in which you have to have that kind of courage is if you think a judge in a jury trial has misdirected the jury or made a wrong decision about the admission of evidence. This is not the occasion to go into the question of rule 4 of the criminal appeal rules. Some people take the view that it’s a rule that can’t derogate from the right of appeal in a proper case, but that’s not today’s debate. But in a criminal appeal, if you haven’t raised the issue with the judge, then there’s a risk that you’ll be excluded from running the argument on appeal. So you have to have the courage to stand up in front of a judge and say ‘sorry with respect your Honour has misdirected the jury on this issue, I seek a redirection.’ And that can take courage and that, I mean I know from personal experience that’s probably the one thing where judges get quite snaky, or can, if they’re feeling a bit sensitive about their own summing up but if you say ‘well you got that wrong, and you got this bit wrong and you’ll need to do that again’ doesn’t always get greeted with the warmest response. But it’s a situation where as an advocate you’ve just pulled on your asbestos suit and have the courage to say can, ‘would your Honour redirect the jury because it’s been done incorrectly, with respect.’ |
| DT:
22:00 | Always. You’re right it is hard to disagree with the bench. I think particularly for young advocates there’s a fixed mindset that more senior practitioners, more senior judges of course, always in every case know better than you and you want to be careful about disagreeing. But one area where junior advocates seem to have no problem disagreeing at all is with the order in which they should make their submissions. I think this comes back to a point you were making earlier, that often a judge might ask a question of a young advocate about the case that they’re making or the evidence that they’ve just read, and the advocate will decline to answer that question because they’ve got a very rigid script that they want to stick to. Do you have any tips for handling that situation? |
| JM:
23:00
24:00 | I think the reason advocates do it is because they’re, as you say, they’re wedded to the script and they might be worried that if they go off script, they’ll forget to come back. Again it comes down to preparation. You should know your case back to front so that you can be distracted and answer a question and then come back to where you were. If you’re worried about being, forgetting where you were, you can just put a little mark in your notes, but answer the question when it’s asked because the hearing of a case can be a very productive, Socratic process. But that it takes two to have a Socratic exchange, so, and I think that’s the point that you’re making. That if a judge asks a question, they’re going to be deciding the case. It’s, if they’re asking you a question it’s because whatever point of your submissions you’re at, they’ve come to the point of being interested in this particular issue and potentially thinking that this is going to be the issue that decides the case. So for heaven’s sake answer it immediately. Or, if you’re mid thought, say ‘I’ll answer that, I just want to finish this point’ and then come to it sort of immediately after finishing the point that you’re in the middle of, if you’re being interrupted. Very important to take those tips where you can. The other thing I sometimes see young, well not young, young and old experienced advocates doing is sort of insulting the judge if the judges’ question is a silly one and you sort of think ‘mm not so persuasive to respond to a question from the bench by saying ‘well you’d have to be stupid to ask that question,’ you’re thinking ‘well!’ So I guess that, and there is a lot of ego on both sides in court. You do get judges I’ve seen enough, sorry to say it, but I’ve seen judges being unnecessarily stern and bordering on rude with advocates and I’ve seen advocates being unnecessarily rude to judges. It should be a respectful, intellectual exchange that’s what it should be all about. Working out, you know, what the correct result is. |
| DT: | And I like the way you phrase that, that you have to take those tips where you can because those questions are guides aren’t they? They’re useful information, useful feedback, about what is being received well and what is perhaps not being received well. |
| JM: | They can be trojan horses, be careful! Some judges will ask a question to secure an admission, and an unwitting barrister might offer it thinking that they’re being helped but yeah I mean it should, the exchange should tell you where the judge is focusing his or her attention. |
| DT: 25:00 | I suppose there’s also that situation where entirely innocently, particularly in an urgent application, that there is a question that might be very salient to most matters of this type, but it isn’t for this particular one and it’s really then your job to still respond immediately to that question being asked, but to explain, politely of course, why that isn’t relevant in the present case. Speaking of urgent applications and duty applications, that’s often an area where readers and other young barristers often cut their teeth. Preparing for those sorts of applications can be a luxury that you don’t often have. I remember having an application that I had an hour to prepare for and then at the conclusion of that one, I learnt that the same applicant was making another application in the court next door to which my client was also a respondent and I had 20 minutes to prepare for that one! When appearing at that level of short notice, what’s the most important thing that an advocate can do to prepare? |
| JM: 26:00
27:00 | I think there are two important considerations and they probably compete with each other. One is obviously to do the best possible preparation you can in the time that you have available and that probably requires you to take command. Not to let the solicitor tell you what you’re doing, but you tell the solicitor ‘no we can’t go to court until we have evidence of ownership’ or ‘we need evidence of service.’ So taking command in a way that shows a bit of leadership and saying what we need to really run this application. Barking orders if you have to, just making sure it happens. But the flipside of that is knowing when to say ‘no’. Saying no to other barristers in chambers who might be giving you a bit of a hospital pass, but also standing up to clients. A client might come to you and say… ‘this is an outrage and you know we’ve got to get an order restraining the assets or something.’ You can’t take that kind of brief and make that kind of application until you’ve had an opportunity to satisfy yourself that there’s a reasonable course of action. And if you’re not being given enough time to do that, you just need to say ‘look I don’t think we’re ready to run this application yet, we don’t have the evidence.’ Or ‘what you’ve told me doesn’t disclose a course of action.’ So that you have that, you are the intermediary between the client and the Court and you need to develop that confidence not just to stand up in front of the Court and also to stand up and front the client and have the courage to say when you think that the case looks like it might be hopeless or isn’t yet sufficiently prepared to have a prospect to getting the orders that you seek. |
| DT: 28:00 | And I suppose an important point to make there is that you can take that same approach if you’re the respondent to an urgent application, can’t you? Because, provided you can obtain those instructions, you can give an undertaking to preserve the status quo until you are prepared. |
| JM:
29:00 | Sure, sure, that’s a really important point actually and I was on the wrong end on a failure to do that once. I was appearing against a much more experienced barrister and I had asked him before we went to court whether a particular issue was going to be raised and he said ‘no.’ And then when we got to court he raised it. And I just didn’t have the confidence to say to the judge ‘we spoke about this yesterday afternoon, I was told that issue wouldn’t arise, I’m not ready to argue it.’ Somehow I felt as though I needed to pretend I was ready to argue it, or as if it was embarrassing for me that I had been tricked in that way, I don’t know. But it’s a cautionary tale for a young advocate to, if you’re taken by surprise, whether or not it’s your fault and if it’s your fault say so, say ‘I’m sorry your Honour I should have anticipated this issue but I didn’t.’ But in the situation I was in, certainly I should have said ‘I was told this wouldn’t be an issue, I’m not ready to argue it today, can we please, can I please have some time?’ Now sometimes the judge will say no you can’t, but then at least you’ve got it on the transcript that you asked for time. And so, if it, if you want to run an argument about not having been given procedural fairness, you’ve paved the groundwork for that. |
| DT: | It is funny that we have that real sense of shame or embarrassment about being less than completely prepared, even if it’s an extremely urgent short notice application. |
| JM:
30:00 | Exactly, even as a judge, I never have any qualms, if a barrister says ‘your Honour would you be familiar with such and such case’, if I’ve never heard of the case or if I can’t remember what it’s about, I say so. And I think that’s another area where barristers might get caught out, they might sort of feel too embarrassed to say ‘I’ve got no idea what that principle that my learned friend has just referred to is.’ So instead they go along with it and then don’t present the best possible argument. If you get caught short, even if it’s being done deliberately to humiliate you, if you get caught short not knowing what principle people are referring to, say so. Because otherwise it can only go pear shaped from there. |
| DT: | Yeah absolutely. It’s funny this topic has come up before actually, this pretending to have a complete knowledge of matters you might not have. In the context of a different episode about understanding your client’s industry and your client’s business TIP: I’m talking here about our interview with Chris Gingell and our very own Araceli Robledo about business development for lawyers at all experience levels, and how to build a personal brand. I think having an encyclopaedic knowledge of the law or of any other field of human endeavour is a great thing, but it’s not always possible. And I think in circumstances where you don’t have that knowledge, being curious is a much more desirable trait. |
| JM: 31:00
32:00 | Absolutely, absolutely. And having the confidence, really it does come down to confidence, to be very open about your areas of ignorance. Just say I don’t remember that case, can you please remind me?’ Or ‘I don’t think I’ve ever read that case, what does it say?’ I mean we’re not expected to have read every case. I was briefed once by a big large law firm to go along to the federal court for ASIC and intervene in proceedings to which ASIC wasn’t a party. And it was being led by Bernie Coles and he’d sent me along for this mention before Cathy Branson. TIP: That’s Catherine Branson AC QC. She was a judge of the Federal Court of Australia from 1994 to 2008, and after that she was President of the Human Rights Commission until 2012. And the first thing she said when I got to my feet applying for ASIC to be joined or to be granted leave to intervene, she said ‘which particular section of the ASIC Act gives ASIC the power to do that Ms McCallum?’ And I was able to duck the question by the cunning device of not having the ASIC Act with me at the time. I was better prepared at the next directions hearing, I made sure that Bernie Coles was available and I wasn’t, but, you just need to have that confidence to say ‘I’m not ready to argue this. I should have anticipated the question but I didn’t, and can we do this properly when I’m properly prepared?’ |
| DT: | Really owe it to the client to do that. |
| JM: | Yeah absolutely, absolutely. |
| DT:
33:00 | Now today of course we’re talking about younger advocates, junior lawyers, readers and barristers in their first few years of practise and appeals and appellate advocacy isn’t a huge part of their practise. As we were saying earlier, it tends to be more of the interlocutory matters, but a junior advocate might still appear in an appeal from NCAT or the local court directly to a single judge at the Supreme Court, or perhaps being led in the Court of Appeal. For advocates who are less experienced in appellate advocacy, what do you think the most important things are to remember when preparing for an appellate appearance? |
| JM:
34:00
35:00
36:00 | I think it’s important to remember that in the nature of things, a case should become more refined as it goes up in the system of appeals. So in the local court or NCAT, you probably would’ve been very focused on the facts. As it’s going up in the system, you’re probably more going to be concentrating on some legal point. Absolutely critical when appearing on an appeal from an earlier decision is to understand the nature of the appeal. And you’d be surprised how often people haven’t looked that up. We have a large number of statutory appeals in the Supreme Court and in the District Court. You need to know the section that gives you the right of appeal and you need to know what kind of appeal it is. Is it an appeal by way of re hearing? Is it an appeal in point of law? Is there no appeal available and you are stuck with judicial review? TIP: Let’s take a quick break to discuss those three types of appeal:
And focus on the way you’re going to put your argument by reference to that standard of review that is raised. I think I’d also say preparing for an appeal that really your work is going to be done in your written submissions, and written submissions are extremely important in that context. Again I would commend brevity, if you can put together, you know, 5 pages of concise, compelling submissions, it can be more persuasive than 20 pages of gumph. You can assume the judge will have read the decision under appeal, you don’t need to rehearse it in your submissions, you need to go to it to the extent necessary to establish your arguments, but you don’t need to spend 10 pages recapping the case. And especially if you’re the respondent, you don’t need to spend 10 pages recapping what the appellant has recapped in their submissions. Just get to the point, keep your submissions concise. And if you can prepare your written document, your work will be done for you once you get to your feet. |
| DT: | A common paragraph that you read in some appeal judgement is that there were twelve grounds of appeal and notice of appeal and at hearing two were pressed. This is such a common problem that grounds of appeal are refined often the morning of the hearing… |
| JM: | Well that’s better than not being refined. |
| DT: | That’s true. |
| JM: 37:00 | And sometimes when you’re first looking at a case you know you’re thinking at the time you have to file a notice of appeal, you’re thinking this probably isn’t as developed as it is by the time you argue it. So that’s OK as long as you do take the effort to shed the gumph, that’s the important part. But for preference let people know in advance. So once you start preparing your written submissions, send an email to your opponent and the court to say ‘grounds 3, 4 and 5 won’t be pressed.’ |
| DT: | I suppose there’s a practical reality to address there, isn’t there. That you only have so long to serve your notice of intention to appeal and then serve your appeal after that. And it might be that you don’t have the time to devote the level of intellectual inquiry to narrow those down. |
| JM:
38:00 | I mean in an ideal world you would. But we don’t live in an ideal world and those requirements to sort of refine your argument well in advance of a hearing, don’t really understand the power of adrenaline as a performance enhancing drug. But as I say, the important thing is as you do start preparing if you decide some grounds are not worth running, have the courage to make that decision early and communicate to your opponent and the court. |
| DT: | You mentioned earlier that often advocates can appear in an appeal hearing not being aware of the nature of the appeal, whether it’s a hearing de novo or it’s a hearing on a point of law. In your experience which one do people tend to mistakenly prepare for more often? |
| JM:
39:00 | I think probably, it’s not so much a question of mistakenly appearing for, but I think probably that the least understood kind of review is judicial review. Jurisdictional error is complex and that’s another issue, but understanding that a decision can only be reviewed for jurisdictional error or error of law on the face of the record, understanding what the record is. People come along and tender all of this extraneous material where sometimes the record is confined to the reasons for decision. So it doesn’t matter what evidence a witness gave or what pre hearing directions were made, it all turns on the terms of the decision. And again that thing comes down to confidence, people having the confidence to confine and refine the argument to a narrow point and work out whether it’s a good point or a bad point. |
| DT: | You said earlier that the aspect of preparing for an appeal that needs to be given the most weight or that has the most work to do in your case is the written submissions. And of course, brevity is a virtue there as well. Can you tell me a bit about the role of the appeal hearing and oral submissions in the context of having prepared those not expansive but detailed written submissions? What is the Court of Appeal’s task or goal at a hearing? |
| JM: 40:00 | It’s interesting having experienced both Court of Criminal Appeal and the Court of Appeal, in the Court of Criminal Appeal the process does rest more heavily I think on the written submissions and then the oral hearing is confined often to additional points that people might want to develop. In the Court of Appeal, in my experience, limited as it is, it is a more of a Socratic exchange and a more of an in depth analysis of the issues. So I guess it comes back to that point about being ready to really debate and get down to the detail of an argument. And more of a, as I say, an exchange with the judges. |
| DT:
41:00 | We were talking earlier about how younger advocates might feel uncomfortable disagreeing with a judge or persisting with a point that hasn’t been received well initially. When judgment is delivered in that matter and it’s delivered consistent with that initial response, I think a lot of advocates would be very nervous about, or very apprehensive about, advising their client to appeal, or to seek an appeal. I think that they might not feel confident enough to know that there’s an error of law in that approach. They might internalise that issue and say ‘well actually the error must have mine’. What tips do you have for junior lawyers to identify issues where there is an appealable error? That should go to the Court of Appeal? |
| JM:
42:00
43:00 | That’s a really good question. I think I probably would have, in that situation, rested on what some people call ‘corridor research’. Go and turn it over with someone more experienced and just say ‘look I think there’s a point here but you know I just lost this case and I’ve got my tail between my legs. Am I mad? Is this a good point or not?’ I think that’s the point at which it’s worth, even if, I mean ideally if it’s a case where the resources will warrant it, get a more senior barrister in to assist with and advise prospects for appeal. But if the resources aren’t there for that, go and seek out someone who’s really experienced in the field. And I always found that the bar really was as they told me in my reading course, an open door environment. I remember we were told ‘any barrister would be happy for you to come along and ask some questions.’ And I’m being a bit of an idiot savant, more idiot than savant, I took their word and I once went and spoke to a barrister I’d never met, but I knew he was the sort of guru in a particular area of law. And I remember he was sort of politely surprised when I sort of knocked on his door, he had idea who I was, but he spent about 20 minutes with me, it was to do with industrial awards and it was something I didn’t know anything about. And he spent about 20 minutes with me just taking me through and as he put it ‘helping to isolate my areas of ignorance.’ |
| DT: | I can’t tell if that’s a polite way of putting it or not! |
| JM: | Yeah it was a lovely exchange. But my point is that if you’re feeling doubt that’s been caused by having not been well received, go and speak to someone experienced. And they might say ‘oh yeah no, that’s just that judge. He hates that argument; he’s always hated that argument.’ Or they might say ‘no I think you might need to go and read this case and I think you’re probably being overly optimistic.’ So bring in the big guns at that point. |
| DT: | I’m glad you mentioned the consideration of what resources are available. I think the surface answer might be ‘well hand a brief over to someone more experienced and expensive who can give a certain answer.’ But as you say that’s not always possible. |
| JM: 44:00 | It’s also not always the best idea. Sometimes bringing in the person who’s supposed to be, you know, the expert in a field, they won’t know the case back to front the way the junior does. And sometimes they can run a case not as well as it would be run by a passionate person who lost at first instance and wants revenge! |
| DT: | It’s a powerful motivator! But as you say that open door policy really is a reality of the bar. When I was at the bar I didn’t embrace it with the same enthusiasm that you did. And it took me a while to realise that people were that willing to help you. I want to turn now to talk a bit about your own career as an advocate and now as a judge, because as I said at the top of the episode, I think we so often hear the conventional wisdom that developing a career in the law is ever more granular specialisation, picking one path to spiral in on. And reading your CV there’s a really broad range of experience and a kind of a winding path through… |
| JM: | An absence of expertise in anything! |
| DT: 45:00 | Well I think a collection of expertise in a whole range of things and I think that perhaps develops a kind of expertise all of its own. But you started as a solicitor in a commercial law firm, tell me a bit about what you learned in that early role? |
| JM:
46:00
47:00 | I think two things that were particularly helpful, one was just working with a gentleman called Gerald Raftesath who was a formidable force in litigation in big firms in Sydney in the 1980s, and just watching him work. He was so hard working and so meticulous. He worked to the highest standard and that’s what his clients expected of him. So I mean that’s, working at a big firm is not for everyone and I quickly worked out that it probably wasn’t where I wanted to stay forever. But just seeing the precision and detail and depth of preparation that he would do, was a fantastic experience. You know, checking everything. If someone said we can do this under this section he’d go and check the section even if he’d read it 10 times and make sure it said what he remembered it to say, and that sort of thing. He was formidable. The other thing I learned, just working in, doing the rotations through different sections of the firm was I spent a bit of time in finance and I learnt how to read a loan agreement and that was actually really valuable. I know it sounds boring, but learning to read an agreement is a bit like learning to read a statute, you know you’ve got to read it as a whole, there’s a very good book which I’ve actually just recently bought which does share both principles of both statutory interpretation and interpretation in different contexts by Perry Hertzfeld and Thomas Prince. TIP: And the full citation for that book will be in the show notes. But it’s that question of learning to sit down and read what someone else has written in order to record an agreement or an intention and construing it and understanding it. And that, I did that for the first time in Mallesons, sort of reading loan agreements from beginning to end, and sometimes assisting in drafting them. And that was actually, surprisingly good, a surprisingly helpful experience. |
| DT: | I think that is something that serves you well as a litigator to understand at least a little bit of how the transactions come together because it does help you understand how some of the mistakes that get made do get made. |
| JM: | What did it look like before the document came into existence? |
| DT: | I was going to ask you that, if you’d always been a litigator or if you’d… |
| JM:
48:00 | Well basically yes except for that short period when I was doing rotation through different sections of the law firm at Mallesons, Mallesons Stephen Jacques then it was. And apart from that I then went to Canberra for the very respectable reason that my then boyfriend moved to Canberra so I followed him. But I really fell on my feet with that job in Canberra as a prosecutor, you know with the Commonwealth DPP which then had state like jurisdiction and I was just getting on my feet every day prosecuting as we used to say everything from maggoty meat rolls to murder. It was a really good experience. And since then I’ve basically been an advocate. |
| DT: | Now we’ve covered some of the areas of practise that you’ve had experience in over the years at the top of the episode that covers virtually every substantial area of the law one can think of. We were talking before about whether that’s a lack of expertise or an expertise all of its own and I think what I meant by that latter comment is that there’s probably some synergy between some of those areas of law that might not be immediately apparent to someone that hasn’t practised both. Can you tell us about something that you’ve maybe learned from one area of the law that came in handy in another? In a way that you didn’t expect? |
| JM: 49:00
50:00 | Look I think I would answer that question in two ways. First from my own personal experience which is just that I can’t really think of an example, but you do start to realise that across different areas of the law, the law operates in similar ways. And it’s more just a question of having a broad way of thinking and a, probably a, more ready ability to think laterally across different areas of the law. But the other way I would answer that question is to refer to your listeners to a really terrific article, which I think is now a chapter in a book written by Tim Game and Julia Roy about unifying principles in administrative law. And they talk about parallels between administrative law and criminal law. The discussion begins with drawing on cases from constitutional law and the decisions in Kable, Plaintiff S157 and Kirk all of which are cases about overreach of parliament intruding into the role of the judicial arm of government. And it’s a really terrific article if anyone’s, if anyone’s sort of interested, anyone who’s interested in reading those parallels can get some more depth reading from that. So yeah I think that’s the answer I would give. |
| DT:
51:00 | We’ll include a link to that article in our show notes for this episode. But has that broad experience also had an effect on your advocacy style? I think something that we’re told or maybe that we observe in the bar course or in the early stages of our advocacy careers is that criminal advocates tend to have a particular advocacy approach that perhaps is a little bit more engineered to the interest of a jury. Particularly trial advocates. Whereas commercial advocates famously practise in the “whispering” jurisdiction of the equity division of the Supreme Court. How did you marry those two styles having such a broad range of practice areas? |
| JM:
52:00
53:00 | I think it’s a bit of a false dichotomy. I mean obviously you’re always going to tailor the way you speak to the audience. You’re going to present a very different argument to a magistrate in a busy local court with 90 matters in the list. I mean the work they do is amazing, they barely have time to scratch themselves. You’re going to run a very different kind of case there to the case you’ll run in front of a jury, to the case you’ll run with an appellate court. But I think there’s a common thread that you’re still always trying to persuade the person that you’re speaking to, it’s just that different kinds of people will find different sorts of things persuasive. I don’t think juries fall for the kind of, you know, classic what people call, you know, “rhetorical flourish.” I don’t think they fall for the coloured balls in the air, juries are smart. They’ve got the combination of their intelligence and their capacity to smell a rat is greater than the sum of the parts. Because they spend time together behind closed doors and mull over things, and they, in my experience, almost invariably get it right. I never kind of went for a sort of showy style in front of juries. I used to imagine I was explaining the case to my mother. So that the test I applied was an intelligent non-lawyer, and I think that’s far more effective advocacy than what people might refer to as the sort of classic showy kind of jury address. And I wouldn’t say that there was a great deal of difference in my style of advocacy in one place or another. It would just be tailored towards whether I needed to be fast or whether I had time to develop a point, I think, would probably be more of a guide. I do think that dichotomy is a bit of a fallacy between, you know, common law hacks and the whispering jurisdiction. I don’t think that’s really the way advocacy is divided anymore, if it ever was. |
| DT: | But that is a great tip not to underestimate the jury. I think that’s probably a mistake often made by advocates who maybe haven’t had a great deal of experience in crime and try it for the first time. Not to underestimate the jury. But it’s also a great tip that you have to adapt your advocacy style to the audience more deeply than just whether you’re in a criminal or civil jurisdiction and your point about appearing before a magistrate who, you’re right, deal with phenomenal workloads… |
| JM: | And exhausted and have you know you stand up and say in a plea in a drink drive matter you know, ‘oh my client doesn’t usually drink too much but on this occasion…’ and the magistrate has probably heard that 700 times this year. Just have a bit of an intelligent sort of approach to what you’re going to say. |
| DT: 54:00
| Yeah absolutely. We spoke about this in another episode of Hearsay with two of our guests about criminal sentencing and the need to differentiate particularly one’s character references from the run of the mill ‘this is out of character and he’s a very good employee, and I haven’t been told anything about the offence anyway’ kind of character reference that magistrates no doubt see a dozen of a day. TIP: That episode is my interview with Matthew McAuliffe and Michael Vo which is a deep dive into sentencing, from both sides of the bench. |
| JM:
55:00 | I will send you also to attach as a link for this episode a magnificent judgment written by a judge in Mississippi sentencing, a black judge, sentencing three white guys for what was obviously a kind of modern lynching and he talks about the character references in that context. It’s a really good discussion of the fact that people describe these boys as, you know, a ‘fine young man and a compassionate boy’ and he does a sort of deeper analysis into how boys described like this came to this level of hate in what was obviously a hate crime. It’s very interesting. I’ll send it to you. |
| DT:
56:00 | Yeah thank you. We’ve been talking about your broad experience in different substantive areas of the law, but you’ve also had broad experience in areas of your life as well, and your sort of balance in your personal life. You’re a marathon runner as well as mum, and just before we were starting this interview we talked about a week of mountain biking and horse riding. And I think that wealth of interests outside of one’s career, outside of one’s practise serves you well in having a prosperous and long and sustainable career in the law. Having achieved this balance in your own life, do you think it’s helped you reach the Court of Appeal? |
| JM:
57:00
58:00 | I don’t know about helping me reach the Court of Appeal but certainly it’s helped me have a… long career. I do want to reassure anyone who’s listening to this and feeling inadequate that there have been many, many times in the last 30 years when I have not felt particularly capable and not felt as though I was getting the balance right at all. I think it’s particularly difficult and I know it’s difficult in the law for anyone, whether people have families or not, but certainly being both a mother and a barrister, I often felt that I wasn’t doing either job particularly well. Certainly not to my cripplingly high standards I set for myself. But yeah I think keeping a balance in your work and your life is essential. I think exercise has been central to maintaining good mental health for me in the last 30 years. Whenever I feel my mental health deteriorating I think ‘when did I last go for a run?’ and it’s usually longer than it should be and these days now that I’m fortunate enough that my children are all out of school so they’re all at university, I do have the time to keep to a rigorous exercise regime and I think it’s critical to my mental health. But also think it gets you out of work. Particularly if you adopt a programme as I have, of engaging in as many dangerous recreational activities within the meaning of section 5K of the Civil Liability Act as you can think of. TIP: A dangerous recreational activity for the purposes of s 5K of the Civil Liability Act is a recreational activity that involves a significant risk of physical harm, for those of our listeners without the same encyclopaedic recall of legislation that the judge has! Those sorts of things you know rock climbing, horse riding, mountain bike riding, they get you just completely out of your head. You can’t think about work when you’re thinking about not falling off a wall so I think it’s really good for your soul to do that kind of thing. So I certainly would recommend to anyone who feels that they’re too busy to exercise to ponder the question whether they aren’t maybe too busy not to exercise. |
| DT:
| That’s a great way to put it actually. I’m glad you prefaced your answer by saying that you haven’t always got the balance right. Because I think we can feel as though…we feel guilty either way. You know If we’re spending more time outside of work, we feel guilty that we’re not at work more, and if we feel that we’re at work all the time devoting ourselves to our clients in our practise, we feel as though we’re neglecting ourselves. |
| JM: 59:00 | Absolutely and my wise mother used to joke that guilt is a very constructive emotion. It’s right up there with panic and anxiety. But they’re not constructive emotions at all and you need to learn not to feel bad when you need not to feel, feel as though you shouldn’t be doing what you’re doing and you should be doing something else. |
| DT: | Hm. And that point about exercise being, how did you put it, that you might be too busy not to exercise I think is absolutely right. That not being a doctor or an expert on human physiology by any means, but that it’s all a connected system… |
| JM: | Oh there’s plenty of robust research I can assure you as an avid reader of science and listener to the science programme on ABC. There’s plenty of robust research to the effect that exercise can be as effective as antidepressant medication to preserve your mental health. So it keeps you, keeps you strong. |
| DT: 1:00:00 | And if our listeners want to hear more about the importance of mental health and the importance of leading a balanced healthy lifestyle in the practise of law, they can listen to my interview with Michael Tooma managing partner of Clyde and Co who spoke to us about mental health as a work health and safety risk. Justice McCallum we’ve spoken about a whole load of topics today, we’ve spoken about advocacy tips both at first instance and appellate advocacy as well. We’ve spoken about your broad and diverse career, and we’ve spoken about the need to balance one’s professional life with one’s personal life. If you had one advocacy tip that you’d like to leave with our listeners before we leave today, what would that be? |
| JM: | I think I’d leave them with the third Peter Healy rule which you haven’t mentioned, which is ‘just don’t muck it up.’ And as I said in my swearing in speech: ‘those weren’t his precise words.’ |
| DT: | We can only guess! |
| DT: | Justice McCallum thank you so much for joining me today on Hearsay. |
| JM: | It’s been my pleasure, thank you for having me. |
| DT:
1:01:00
1:02:00 | You’ve been listening to Hearsay The Legal Podcast. I’d like to thank our guest the Honourable Justice Lucy McCallum for coming on the show. Now if you liked this episode about advocacy, try listening to my interview with Talitha Fishburn from Wardell Chambers about digital advocacy and online courts. Or for something a little different but still in the disputes related vein, listen to my interviews with Jonathan Prideaux and Paul Bartholomew about how technology and organisational innovation are changing litigation. If you’re an Australian legal practitioner, you can claim 1 continuing professional development point for listening to this episode. Now, whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest that this episode constitutes an activity in the professional skills field. If you’ve claimed 5 CPD points for audio content already this CPD year, you might need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades, our audio engineer, Kirti Kumar our chief content researcher, Araceli Robledo our head marketer, and me, David Turner. Nicola Cosgrove is our director and executive producer and keeps everything on the rails. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions – making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening. |
[1] R v Way (2004) 60 NSWLR 168.
[2] Muldrock v The Queen (2011) 244 CLR 120.
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