Learning to Litigate

Robert Hollo SC and Claire Roberts

Advocacy can be intimidating. As the Honourable Susan Kiefel AC notes in her foreword to Neil Williams SC and Alison Hammond’s recent text for newcomers, it also is sometimes difficult for more seasoned practitioners to recall just how daunting the 'world of litigation' can be for young lawyers.

Though readers of Bar News are no strangers to this world, we expect this new book to have a worthwhile place on most barristers’ shelves. Readers and junior juniors will benefit from practical descriptions of techniques and skills. More senior juniors, including tutors, are provided with a concise summary of matters that early-year peers need to know but might but not find obvious. Senior counsel may benefit from a reminder of difficulties that junior advocates can face, as well as from the book’s broader reflections on navigating the stresses and excitements of our profession with a life both inside and outside of the law. Any solicitor or law student who reaches out to counsel for advice about contemplating a move to the bar could also be sensibly steered to this text. In addressing the essential subject matter which its title indicates, and the proffering of practical and technical advice on coming to the Bar, practising at the Bar and a life at the Bar, the book fills a (surprising) gap in the modern printed literature in this country.

The book is organised in three sections. The first section addresses how to establish a career as a litigator, including guidance on selecting areas of practice, ethical and etiquette fundamentals and developing professional and commercial instincts. The advice is direct and practical – there is a checklist of essential questions for 'simple' court appearances, suggestions on how to approach devilling and guidance on developing new areas of practice. The section also contains broader reflections on issues such as identifying areas that accord with a person’s capacity to manage emotionally-charged conflict and navigating complex social interactions.

The second section addresses advocacy techniques. It is, perhaps unsurprisingly, the book’s longest. The 12 chapters step through pre-trial and in-hearing essentials, including dedicated chapters on persuasive written and oral argument. It is apparent throughout that the authors consulted widely in order to distil lessons that will be useful to practitioners from a variety of practice areas and in various Australian jurisdictions.

A chapter on criminal practice credits work prepared by a number of leaders in that field and acknowledges the assistance of Tim Game SC in reviewing it, together with chapters on witness examination, in draft. An overview of appellate court listing patterns and
work habits gratefully acknowledges the input of former Presidents of the Queensland and Victorian Courts of Appeal. Developing mastery in examination-inchief and cross-examination can take a great many years, and as the authors acknowledge, there are now more limited opportunities for many advocates to develop these skills than was the case even in the quite recent past. The expert guidance given in chapters on these topics should prove useful even for counsel whose litigation instincts are otherwise finely honed.

The final section of the work addresses the 'bigger picture' of managing professional relationships and a career in litigation within a broader life. Advice on being a good junior should be helpful for new barristers as well as those seeking to support their development. Observations on how to plan and maintain a rounded life that incorporates a demanding and successful advocacy career are relevant to every person in our profession.

The authors’ backgrounds as a very senior silk and an 'under 5' new barrister mean that the book has benefited from two important and very different vantage points. The authors of this review, like the authors of the book, are both practitioners at the NSW Bar. However, the focus of the book is not limited to litigating in NSW; rather, in terms of the practical and technical guidance it offers, it is directed to a national audience. For example, it explores the pathways to the Bar in each state and territory and its commentary about litigation procedure and technique embraces practice in State and Federal courts. Accordingly, the text should be useful to counsel, solicitors and law students interested in litigation across the country. We are not aware of any previous work that has drawn together lessons on modern Australian litigation in such a practical, careful and comprehensive way.

Both reviewers have worked on matters listed in many Australian states and territories, and we expect many Australian litigators will have similar experiences across their careers. This book may be a valuable resource in continuing a national discussion about how to develop programs for entry into the profession and support early-career litigators in a unified way across the country. BN

Robert Hollo SC and Claire Roberts