Jonathan Sumption QC on Appellate Advocacy
By Geraldine Clark
Rarely in my experience is a talk so gripping and helpful that you wish it was longer. A packed Inner Temple Hall was treated to such a talk by Jonathan Sumption QC on 29 September 2009 as part of the SEC’s Masters of Advocacy series of lectures. Sumption’s subject was Appellate Advocacy and throughout the talk he delighted the 300-strong audience with quips such as: “Appellate judges are bigger than you and they hunt in packs”. These mild digs at judges reminded everyone that this speaker was not a judge but a practising barrister like them.
Sumption shared some instructive insights into the judicial mind based on his experience. He said that judges had become less reverent of authority than in the past and that they cited fewer cases in their judgments these days. There was now a tendency to set out broad principles of law exemplified by the authorities across a range of subjects rather than applying authorities directly to the case being decided. He also noted and welcomed an increasing willingness by judges to consider the social and economic implications of their decisions in their judgments.
Based on the premise that: “Judges start with an instinctive view and work backwards to justify it”, Jonathan made some practical suggestions for skeleton arguments and oral advocacy. Here are five out of a much longer list that will be at the forefront of my mind when I appear in the Court of Appeal:
- The first paragraph of a skeleton should grab the judge with an interesting legal principle or interesting facts. It should not begin: “This is the hearing of…”
- Bad points drive out good points. List your points in order of merit and briefly set out your position on them.
- Make it as pithy as possible. Use unusual turns of phrase.
- Forget your skeleton once the hearing begins – do not make your oral presentation a mere commentary on your skeleton, but say things freshly so the judge listens to you rather than reads.
- Add historical or social context to make what you say more interesting.
Can you imagine the improvement to our lives as advocates and to the lives of our judges if the Bar were to adopt at least one of Jonathan’s tips on appellate advocacy?
Following the lecture, Tim Dutton QC played the chat show host to Sumption’s reluctant celebrity. It was skilfully done and it elicited lesser known facts about the advocate’s life. Many in the audience will have been heartened to learn of Sumption’s two year struggle as a pupil to find a tenancy. Those with a life outside the Bar will have been glad to hear him say: “I don’t love the law. I like to practise it. I love history.” Asked by Dutton what he considered to be the qualities of a great advocate, Sumption replied “Intellectual ability, application, luck. Humility is useless. Humour helps.” He only demurred when asked to identify his own faults as an advocate.
The evening ended with questions to Sumption from the floor. Perhaps the best question was: “What can you do about the difficult judge?” To this Sumption said: “You can’t force him to listen, you can only hope he makes a real mess of the judgment. It is good to lose as comprehensively and unfairly as possible to make it easier in the Court of Appeal.” Alas, that such excellent advice should be of small comfort in civil work; with permission to appeal nearly always required, the judge rarely giving it and the costs of seeking permission from the Court of Appeal so high, the difficult judge may well escape his comeuppance.
It was a memorable evening for all the right reasons and Sumption, Dutton and the organiser, Anesta Weekes QC (Director of Education and Training for the SEC) richly deserved the long and warm applause which followed the lecture.