Essays in Advocacy

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Any observer of advocacy in Court will be struck by the dissimilarity of advocates’ styles, mannerisms, eloquence and the manner or mode of persuasion. The power of persuasion is innate, idiosyncratic and unpredictable. There is a danger in attempting to teach a particular style of manner of delivery. This publication approaches advocacy in an entirely different way. The reader of the publication is at times entertained, and other times subjected to concentrated study. Some authors write in an elegant manner, others in a scholarly fashion. Pragmatic advice is the approach of yet others. Each author through their essay displays their own unique style of persuasion. The editors have eschewed any thought of attempting any degree of homogeneity. The authors have wanted the student, the reader and the critic to identify and respect these differences. They are the very essence of advocacy.


The essays should appeal to a wide-ranging audience. One of the purposes of this publication is to provide a text for the undergraduate, for the student undertaking professional legal training and for the young practitioner in early years of their work as advocates. The editors have the expectation that the work will have wider uses. It is expected that school students in their final years, engaging in legal studies, in mock trial and in mooting competitions will find the essays both inspirational and motivational.

from the ‘Foreword’ by Justice Tom Gray

Click for list of contents

Foreword The Hon. Justice Tom Gray

Introduction The Hon. Justice Robert French AC, [then] Chief Justice of the High Court of Australia

Etiquette Elisa Holmes

Part one: Ethics, Duties and Obligations

The Importance of the Advocate to the Administration of Justice  The Hon. Justice Jennifer Davies

Ethical Obligations of the Advocate Jonathan Wells QC

The Obligations and Duties of Silk and their Juniors Michael Grant QC

The Attorney-General as Advocate The Hon. John Rau MP and Chad Jacobi

The Prosecutorial Discretion The Hon. Justice Richard Refshauge

The Solicitor/Barrister Relationship John Goldberg

Part two: Preparation

Taking Instructions and Advising the Client Anthony Kerin

Pleadings: A conceptual Guide to Practical Legal Drafting Ian Robertson SC

Written Advocacy: Writing with Effect and Persuasion The Hon. Justice G T Pagone

The Advocate and Language  Julian Burnside QC

Criminal Trial Preparation  Paul Muscat QC

Civil Trial Preparation  Mark Livesey QC

Part three: The Trial

The Duties of the Prosecutor The Hon. Roderick Howie QC

The Voir Dire  The Hon. Justice John Sulan

Opening a Trial  Walter Sofronoff QC

Examination-in-Chief  Adam Kimber SC

The Child and the Trial  The Hon. Robyn Layton QC

Representing Minorities  His Hon. Judge Sydney Tilmouth

Experts  The Hon. Justice Bruce Lander

Closing Addresses The Hon. Justice Michael David

The Magistrates Court Trial  The Chief Magistrate Elizabeth Bolton

The Trial by Judge Alone  Grant Donaldson SC

The Serious and Complex Commercial Trial  The Hon. David Bleby QC

Part four: Alternatives to Trial

Alternative Dispute Resolution The Hon. Bruce Debelle QC

Mediation  Stephen Walsh QC

Restorative Justice  The Hon. E P Mullighan QC and Leigh Garrett

Part five: Tribunals, Inquiries and Miscellaneous Hearings

Injunctions  The Hon. Justice John Mansfield AM

Disciplinary Tribunals  The Hon. Justice Kevin Duggan AM

The Environment, Resources and Development Court  Brian Hayes QC

Industrial Commissions and Tribunals  His Hon. Judge Peter McCusker

Coronial Inquiries  His Hon. Judge Wayne Chivell

An Advocate’s Role in Inquiries  Dick Whitington QC

Part six: Sentencing and Remedies

The Plea in Mitigation  David Edwardson QC

Remedies The Hon. Justice Malcolm Blue

Part seven: Appeals

Permission to Appeal  The Hon. Justice Anthony Besanko

Appeals Before Single Judges   The Hon. Justice Richard White

Appeals Against Sentence  His Hon. Judge Paul Cuthbertson

Appeals Before the Full Court and the Court of Criminal Appeal  The Hon. Justice John Doyle AC, Chief Justice of South Australia

Part eight: Applications for Judicial Review

Applications to Judicial Officers Paul Slattery QC

Applications for Judicial Review  Chris Bleby and Phillip McNamara QC

Part nine: Proceedings in the High Court and Petitions

Special Leave to Appeal or Special Appeal to Leave – Does Advocacy Matter?  The Hon. Justice Chris Kourakis

Matters in the High Court Arising Under the Constitution or Involving its Interpretation  Stephen Gageler SC

The Institution of Mercy  Martin Hinton QC and David Caruso


The Seven Virtues of Advocacy  The Hon. Justice Margaret White

The Lighter Side  Kevin Borick QC

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