England's Dying Art: In Today's Courts, More Energy Is Spent on Negotiating a Speech's Length Than on Its Delivery. Michael Beloff Exposes the Dangers Posed by the Decline of Oral Advocacy
Beloff, Michael, New Statesman (1996)
The 20th century may be seen not only as the golden but as the last age of advocacy. Those born with silver tongues in their mouths could once achieve a celebrity status nowadays accorded to a singer's sibling, a footballer's one-night stand or anyone, male or female, who combines the maximum of physical charms with the minimum of designer clothing. Silks could save men from the gallows, destroy reputations or--as in the Archer-Shee case, the real-life version of Terrence Rattigan's The Winslow Boy--stand up for justice against the power of the establishment. F E Smith, Edward Carson, Rufus Isaacs, Marshall Hall, Norman Birkett and Patrick Hastings were household names. A Pollock or a Pannick among the contemporary Bar may emulate their talents, but who in recent times, apart from the late George Carman, has had a public profile higher than that of an average premier league footballer, let alone an annual income greater than a fraction of the latter's transfer fee? (Well, on second thoughts, Pollock, maybe.)
How has this come about? Partly, at least, because in legal terms England is no longer an offshore island. The indirect effect of the Europeanisation of English law on practice and procedure may prove profound. In the European Court of Justice, of which the English Euro-advocate has by now three decades of experience, oral submissions are treated as a kind of pre-prandial aperitif. More energy is spent on negotiating over speech length before the hearing begins than on delivering the speech itself ("Twenty minutes, Monsieur Beloff? Perhaps fifteen, now? We have read it all already"). Interrogation is rare, rights of reply better not exercised. Once, in embarking on rebuttal, I provoked a single question: "Monsieur Beloff, are you sure you will finish by lunch?" The odds against being able to catch the midday flight from Luxembourg to London are rarely worse than evens.
In the European Court of Human Rights, the right of freedom of expression is given greater respect; but even in this forum, a hearing will be measured in hours rather than days. A case that migrates from the Strand to Strasbourg will undergo a process of forensic miniaturisation: honey, they've shrunk my speech.
It is not only the example of Europe but also economic reality that spurred the switch from oral to written advocacy in the late 1980s. Lord Donaldson, then Master of the Rolls (the senior civil judge), was as enthusiastic for case management as for law-making. It was through his initiative that skeleton arguments developed from an optional extra to a sine qua non--or as the Lord Chief Justice might prefer me to say, less clearly, "without which not". These were originally intended to be a mere platform for oral presentation, but they have developed obese proportions. Oh, for a Lord Atkin's diet!
Such skeletons, intended to be a support, have become a snare. With some judges, fidelity to the skeleton will prompt the retort "I've already read this"; with others, any departure from it risks the testy question "Where is this in your skeleton?". By contrast, when I was called to the Bar in 1967, some judges made it an article of faith never to read any of the papers before they entered the courtroom in case doing so prejudiced their minds. They expected--indeed, wanted--counsel to shape the analysis for them.
The pressure for change is coming from on high and from below. In a series of trenchant observations in the appellate committee of the House of Lords, Lord Templeman (known to the Bar as "Sid Vicious") excoriated "torrents of words" and proclaimed that it was not "the duty of counsel to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner". Down at the Bailey, it is no longer just a case of the Mad Bull and Mr Justice Graves asking Rumpole whether he wished to cross-examine at all the fine upstanding police officer who had given evidence for the prosecution. …