AUSTRALIAN BAR ASSOCIATION
Stephen Estcourt QC
- As Timothy Dutton QC noted in Florence in July 2004 at an international meeting on the development of advocacy training, Australian advocacy trainers in the early 1990’s had stimulated the discussion in England that ultimately led to the South-Eastern Circuit’s annual advanced advocacy training course at Keble College, Oxford from 1993 and the subsequent establishment of an English Advocacy Training Council.
- It was not until 2006 however, that the Australian Bar Association decided that notwithstanding the work of the Australian Advocacy Institute in coaching advocates generally, it was time for the Bars to take responsibility for training barristers.
- The ABA created its own Advocacy Training Council in 2006 and conducted its first five-day residential advocacy course, along the lines of the Keble College course, in Perth in January 2007.
- Since that time the ABA has conducted an annual five-day Advanced Trial Advocacy Course in Sydney, Brisbane and Melbourne in January each year and along similar lines an Essential Trial Advocacy Course for bar readers each year in Adelaide and Perth in June.
- When conducting its trial advocacy courses however the ABA has sought to employ an approach that is different to that of courses adopted elsewhere. The underlying philosophy of each ABA trial advocacy course is that the skills of a barrister are best learned through a deep understanding of the relative objectives for each performance task, thoughtful preparation and an ongoing process of practice and review in an environment of interest challenge and respect.
- Barristers in the courses are assigned to groups of six. The grouping reflects diversity and home jurisdictions but similarity in levels of seniority at the Bar. The ratio of coaches to barristers is one to two. Three coaches are allocated to each group for a particular performance. The coaches rotate between groups so that almost every coach comments on each barrister at least twice during the week.
- The brief for each course is based on a real case in the Federal Court of Australia that has been modified to provide anonymity for the original parties. It is not intended to be legally very complex as the emphasis in the courses is upon advocacy skills.
- Case analysis group discussions are held after the barristers perform their opening addresses on the first day and before they examine in chief. Each barrister’s case theory is explored and challenged by the coaches with a view to testing the depth of the analysis and exposing aspects that the barrister may not have considered.
- During the course of the week coaching then progresses through each stage of a trial and in the bar readers’ course in June the barristers are paired up on the final day and a full trial is conducted before a visiting judge. Sometimes there will be up to fifteen or more trials running at the same time.
- Each afternoon during the week of each course a lecture is given relating to the stage of the trial to be performed the following day. Demonstrations are presented immediately thereafter by coaches focussing on the essential elements of the next day’s task. The performances are intended to illustrate contrasting styles each of which is appropriate for the case at hand. The essence of the performance is intended to be something that the attending barristers can reasonably aspire to.
- Some advocacy trainers express a concern that demonstrations lead to slavish copying by observers. That has not been the ABA’s experience. Barristers are interested in developing their own styles. They adopt and adapt aspects of performance that they consider to be effective and reject others.
- Each day’s performance by the barristers involves ten to fifteen minute presentations as part of the group of six and each one is followed by a seven minute review and demonstration by an in – court coach. That review is then followed up by a one to one coaching session for about twenty minutes using the video of the performance. Often barristers will repeat aspects of the task two or three times in court and in the video review.
- The essential differences between the ABA methodology and programs developed elsewhere in the world following the methods originated by the USA National Institute for Trial Advocacy, are firstly the characterisation of instructors as coaches, using a tennis/golf coach metaphor and secondly, the consequent lessening of emphasis on the formal “Method” of reviewing performances. The rubrics of Headline, Playback, Rationale, Solution and Demonstration are eschewed by the ABA in favour of placing greater emphasis on connecting with the barrister and communicating effectively.
- The ABA’s view is that requiring adherence to an order for making comments can interfere with the natural and effective communication between the coach and the barrister and it can lead to form being given priority over content in the review.
- In – court coaches, after an initial introductory remark make a clear statement of what his or her major comment about the performance is and may also select a second minor matter for comment which can often be related to style, but not necessarily so. The essence of the review coach’s role is then to discuss the meaning and purpose of the in – court coach’s major comment, explore practical ways for the barrister to achieve the desired objective and address the minor comment made by the in – court coach.
- It is the role of the review coach in the ABA trial advocacy courses that is unique. Other courses provide for the primary coaching to be conducted in court followed by a short video review that is usually limited to matters of style. By contrast, the review coach in ABA courses provides intensive one on one coaching to develop techniques and skills for the next performance. In many ways the sessions with the review coach are the most effective in providing the barristers with skills and strategies for improvement.
- Despite the differences, ABA advocacy training does retain an international flavour with the ABA sending coaches to attend Keble College each August and to South Africa each January and with coaches from the Bars of England and Wales, New Zealand and South Africa attending the Advanced Trial Advocacy Course in Australia each year.
- Full details of the ABA Advocacy Training Council’s philosophy and methodology can be found on the Council’s website at http://advocacytraining.com.au/. The next Essential Trial Advocacy Course will be held between 25 and 29 June this year in Adelaide and the next Advanced Trial Advocacy Course will be in Brisbane between 21 and 25 January 2013. Course details and registration can be seen at http://www.advocacytraining.com.au/courses.
 Stephen Estcourt commenced teaching advocacy in 1987 and trained as a coach with the organization headed by George Hampel AM QC that later became the Advocacy Institute of Australia.
Stephen went on to be appointed as an Accredited Advocacy Teacher and a member of the Senior Faculty of the Advocacy Institute and has now over 25 years experience in advocacy coaching in Australia and overseas.
As President of the Australian Bar in 2006 Stephen oversaw the creation of the ABA Advocacy Training Council, of which he remains a Council member. He teaches at both the ABA Essential Trial Advocacy and Advanced Trial Advocacy courses.