Speaking in Court : Developments in Court Advocacy From the Seventeenth to the Twenty-First Century

This book maps the changes in court advocacy in England and Wales over the last three centuries. Advocacy, the means by which a barrister puts their client’s case to the court and jury, has grown piecemeal and at an uneven pace; the result of a complex interplay of many influences. Andrew Watson examines the numerous principal factors, from the effect on juniors of successful styles deployed by senior advocates, changes in court procedure, reforms in laws determining who and what may be put before courts, the amount of media reporting of court cases, and public and press opinion about the acceptable limits of advocates’ tactics and oratory. This book also explores the extent to which juries are used in trials and the social origins of those serving on them. It goes on to examine the formal teaching of advocacy which was only introduced comparatively recently, arguing that this, and new technology, will likely exert a strong influence on future forensic oratory. __Speaking in Court__ provides a readable history of advocacy and the many factors that have shaped it, and takes a far wider view of the history of advocacy than many titles, analysing the 20th Century developments which are often overlooked. This book will be of interest to general readers, law practitioners interested in how advocacy has developed in courts of yesteryear, teachers of advocacy who want to locate there subject in history and impart this to their students, and to law students curious about the origins of what they are learning. Table of Cases 6 Table of Statutes 9 Statutory Instruments 11 Contents 12 1: Introduction and Structure 14 2: Distinguished Advocates, Judges, Classical Learning and Other Influences on Advocacy in the Eighteenth and Early Nineteenth Centuries 26 Ferocity and Bitterness 26 The Arrival of Eloquence 30 Classics and Rhetoric 36 Thomas Erskine, His Triumphs and the Morality of Advocacy 43 Romilly and Copley 51 Advocacy from Ireland 53 Jewish Members of the Legal Profession 58 William Blackstone, Literature and Poetry 58 More Firmer Shape of Stare Decisis 61 3: Prohibition Against Counsel in Felony Trials and the Consequences of its Erosion 63 Fox’s Libel Act 1792, Defamation and Civil Juries in Scotland: Expanding the Scope for Advocacy 75 The Prisoners’ Counsel Act 76 Features of Civil Trials 81 4: Victorian Advocacy: Emotion, Melodrama, Floridity and Juries 83 Juries 87 Restrictions on the Extent of Forensic Licence 91 Judicial Limitations on the Licence of Advocates 99 Scenes in Court and Discourtesy 102 Important Changes in Procedure and Evidence Affecting Advocacy in Criminal Trials 110 The Removal of the ‘Bloody Code’ and Consequences for Advocacy 113 5: Signs of Changes in Styles Before Juries 115 Advocates of Their Time 117 Signs of Change 126 6: Decline of Jury Trials in the Civil and Criminal Courts and Other Key Developments 136 Summary Trials Before Magistrates and Their Consequences 140 Specialist Statutory Tribunals 142 The Judicature Acts 1873–1881 and Their Effects on Advocacy 143 7: The Late Nineteenth Century and the Beginning of the Twentieth Century 146 Evidence Given by Prisoners and Its Effects 148 Rules About Opening Speeches 151 Expert Witnesses 152 Examination of Witnesses: A Much More Precise Art 154 More Documents and Lengthening Civil Trials 160 Decline of Classics and Other Former Influences 160 8: A Spectacular Quartet of Leading Barristers 163 Edward Marshall Hall: A Contrasting Advocacy and Attachment to the Old 173 An Assessment of the Advocacy of the Four Leaders and the Influence They Exerted 180 9: The Silent Revolution in Methods of Advocacy 183 Continued Decline of Jury Trials 190 Impact of Leading Members of the Bar 193 Sir Patrick Hastings and His Effect on Advocacy 193 Norman Birkett 203 Factors Influencing the Style of Advocacy That Became Established 206 10: Changes and Influences on Jury Advocacy in England and Wales During the Second Half of the Twentieth Century 214 Closing Speeches and Perorations 215 Democratization of Juries 218 References and Quotations 221 Peremptory Challenges 226 Less Ferocity 227 Decline in Weight Given to Police Evidence 227 Plea Bargaining 228 Social Enquiry Reports and Pleas in Mitigation 229 Accommodating Key Changes in Law and Procedure 231 Heavy Drinking and Boredom 234 More Hastings Than Birkett? 234 Advocacy in Defamation Cases: A Remnant of an Earlier Age? 236 Further Considerations 237 11: Developments in the Second Half of the Twentieth Century Influencing Advocacy in the Civil Courts 238 Availability of Legal Aid 238 Relaxation of the Rules Against Hearsay Evidence 239 Less Angular Judges 240 Changes in Civil Procedure and the Transformation of Advocacy 241 The Picture Before Reform 241 Changes Begin to Occur 243 The Woolf Report, the New Civil Code and Stages in a Usual Trial 245 Combined Impact on Advocacy 247 The Tradition of Oral Advocacy Under Threat? 252 Decline of Allusions in Advocacy to the Classics, Poets, History and Latin 258 Changes in Advocacy in the County Court 262 The New Realities and Clients’ Perceptions of Advocacy 263 Conditional Fees and Behaviour in Court 264 Litigants in Person 265 A Specialist Form of Advocacy: Mediation and Collaborative Law 268 Greater Use of the Welsh Language 269 12: The Teaching of Advocacy: An Important Influence 271 In Sir Patrick’s day 271 Formal Advocacy Instruction for Bar Students and Barristers Early in Their Careers 274 Advocacy Training for Solicitors 279 Fellows of the Institute of Legal Executives 281 13: Appearances: Broadcasting and Dress 283 Broadcasting of Court Proceedings 283 The Road to Change 284 Views and Opinions on the Effects of Court Cameras on Advocacy 288 Dress in Court 293 Wigs and Gowns 293 The Niqab and Burqa and Advocacy 295 14: Developments with Consequences for Advocacy 299 Rights of Audience 299 Barristers and Solicitors: The Present Position 300 Calls for a Greater Role for Solicitors and the Granting to Them of Higher Rights of Audience 300 Higher Rights and Large Firms 308 Advocacy and the Crown Prosecution Service 310 “Lower Rights of Audience” for Lay Prosecutors in the Magistrates Court 315 Extended Rights of Audience for Fellows of the Institute of Legal Executives 319 Quality Control of Advocacy 320 New Technology 323 Reception of Technology in the United States 325 As Yet, More Limited Use in England and Wales but Future Great Impact Predicted 328 Impact on Jurors 329 Dangers of Internet Research by Jurors to Integrity of Trials 331 Artificial Intelligence and Advocacy 332 15: Some Conclusions 334 Bibliography 339 Books, Pamphlets and Papers 339 Journal Articles 351 Newspapers and Journals 355 Index 357 This book maps the changes in court advocacy in England and Wales over the last three centuries. Advocacy, the means by which a barrister puts their client's case to the court and jury, has grown piecemeal and at an uneven pace; the result of a complex interplay of many influences. Andrew Watson examines the numerous principal factors, from the effect on juniors of successful styles deployed by senior advocates, changes in court procedure, reforms in laws determining who and what may be put before courts, the amount of media reporting of court cases, and public and press opinion about the acceptable limits of advocates' tactics and oratory. This book also explores the extent to which juries are used in trials and the social origins of those serving on them. It goes on to examine the formal teaching of advocacy which was only introduced comparatively recently, arguing that this, and new technology, will likely exert a strong influence on future forensic oratory. Speaking in Court provides a readable history of advocacy and the many factors that have shaped it, and takes a far wider view of the history of advocacy than many titles, analysing the 20th Century developments which are often overlooked. This book will be of interest to general readers, law practitioners interested in how advocacy has developed in courts of yesteryear, teachers of advocacy who want to locate there subject in history and impart this to their students, and to law students curious about the origins of what they are learning. -- Provided by publisher This book maps the changes in court advocacy in England and Wales over the last three centuries. Advocacy, the means by which a barrister puts their client’s case to the court and jury, has grown piecemeal and at an uneven pace; the result of a complex interplay of many influences. Andrew Watson examines the numerous principal factors, from the effect on juniors of successful styles deployed by senior advocates, changes in court procedure, reforms in laws determining who and what may be put before courts, the amount of media reporting of court cases, and public and press opinion about the acceptable limits of advocates’ tactics and oratory. This book also explores the extent to which juries are used in trials and the social origins of those serving on them. It goes on to examine the formal teaching of advocacy which was only introduced comparatively recently, arguing that this, and new technology, will likely exert a strong influence on future forensic oratory. Speaking in Court provides a readable history of advocacy and the many factors that have shaped it, and takes a far wider view of the history of advocacy than many titles, analysing the 20 th Century developments which are often overlooked. This book will be of interest to general readers, law practitioners interested in how advocacy has developed in courts of yesteryear, teachers of advocacy who want to locate there subject in history and impart this to their students, and to law students curious about the origins of what they are learning. Front Matter ....Pages i-xvi Introduction and Structure (Andrew Watson)....Pages 1-12 Distinguished Advocates, Judges, Classical Learning and Other Influences on Advocacy in the Eighteenth and Early Nineteenth Centuries (Andrew Watson)....Pages 13-49 Prohibition Against Counsel in Felony Trials and the Consequences of its Erosion (Andrew Watson)....Pages 51-70 Victorian Advocacy: Emotion, Melodrama, Floridity and Juries (Andrew Watson)....Pages 71-102 Signs of Changes in Styles Before Juries (Andrew Watson)....Pages 103-123 Decline of Jury Trials in the Civil and Criminal Courts and Other Key Developments (Andrew Watson)....Pages 125-134 The Late Nineteenth Century and the Beginning of the Twentieth Century (Andrew Watson)....Pages 135-151 A Spectacular Quartet of Leading Barristers (Andrew Watson)....Pages 153-172 The Silent Revolution in Methods of Advocacy (Andrew Watson)....Pages 173-203 Changes and Influences on Jury Advocacy in England and Wales During the Second Half of the Twentieth Century (Andrew Watson)....Pages 205-228 Developments in the Second Half of the Twentieth Century Influencing Advocacy in the Civil Courts (Andrew Watson)....Pages 229-261 The Teaching of Advocacy: An Important Influence (Andrew Watson)....Pages 263-274 Appearances: Broadcasting and Dress (Andrew Watson)....Pages 275-290 Developments with Consequences for Advocacy (Andrew Watson)....Pages 291-325 Some Conclusions (Andrew Watson)....Pages 327-331 Back Matter ....Pages 333-366