Mr Smith started his career at Chamberlains six years ago and now leads the commercial litigation division of the firm in Canberra and runs cases both in NSW and the Federal Court — and said advocacy is the “purest form of lawyering”. 

“You join as a lawyer, and most people have aspirations to go to court or at least think about it in their minds. The second that I got the option to go to a return of subpoena or a directions hearing, I jumped at the chance. And since then, I quite enjoy it,” he said. 

“I’m lucky that the thing that I’m probably best at is advocacy. If you can do something that you’re good at, you might as well keep doing it. And that’s why I’ve kept down this path. That’s the reason that I enjoy it as much as I do.”

Being a legal advocate, however, can be “terrifying”, added Mr Smith. 

“You are getting your argument put against an independent arbiter, and you’re finding out if you’re right or not at the end of the day. And sometimes you can be in the wrong, sometimes you’re in the right, but first and foremost, I think especially for junior lawyers, and even for senior practitioners, there’s a degree of terror involved in every appearance in case you’d forgotten something. But at the same time, it’s also exhilarating,” he said. 

“You get to put your money where your mouth is, practise what you preach and tell the court exactly what you’ve been telling your client, and maybe your client is in the room or in the courtroom watching you, maybe not, but you get to really tough it out, and it’s an immediate, so you’re scared before you get there. You’re scared during the time whe[n] you’re doing your advocacy, but you’ve also prepared and you have your notes ready to go, and at the end of it, you get to see whether you are right or not. It’s the full service of feelings as a lawyer in the space of a very short period of time.”

Mr d’Apice agreed with this notion — and said that despite the nerves, being an advocate has been a great confidence builder. 

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“It’s that feeling of doing something important. It’s that feeling of bringing whatever preparation you’ve done that might be just a career’s worth of preparation because something urgent has to happen right now and counsel is somewhere else. And that happened to me. And His Honour was pretty unimpressed with the application I brought without notice,” he said.  

“That one springs to mind, but it’s the combination of the sort of nerves of doing something important that might go wrong versus trying to take a little bit of pride and a little bit of confidence in the prep work you’ve done as well. If you can balance that fear and that sort of humble confidence, then I think that’s kind of the way to go about it.”

Mr d’Apice and Mr Smith also recently put together a guide on how junior lawyers can be good advocates, with advice on how the next generation of lawyers can begin their advocacy journey. 

“The reason we put it together is to give back a little bit, although that’s a bit cliché, but it’s hard for junior lawyers coming through. Some people get guidance, some don’t. And from both of our own experiences, it would’ve been nice to have a paper like this to read through just to make sure you’re on the right track, a bit of a sanity check,” Mr Smith explained. 

“It was about giving back a little bit, but also training juniors within the firm as well with respect to what we expect when we tell them to go to court. If you have two weeks to get ready for a directions hearing, this paper sets out essentially what we expect to be done and provided that’s done, that’s all you can ask of anyone.”

A guide like this one is particularly relevant as virtual court hearings become more and more common, making it generally harder for younger legal advocates to home in on their skills. 

“If you go into the directions list or subpoena list every Monday in court, that becomes your happy place; you know who the registrar is, you know how the list works, you know who your opponents are. Whereas in online court, it’s always a surprise. You are not able to ingrain those good habits as much as you’d otherwise like to, and you’re chopping and changing between different mediums. I know that in the Supreme Court of Victoria, they use Zoom. In the Federal Court, it’s Teams, and it’s another medium in the NSW Supreme Court as well,” Mr Smith noted. 

“It also makes it difficult because you get used to your Zoom functionality and your Teams functionality, and then that changes as well. It is more difficult, and there is certainly more to think about in the background, which distracts you from your primary case, which ends up being quite simple at the end of the day because you know exactly what you want to say; it’s just how to say it that becomes the problem. I absolutely think it is a little bit harder for young and budding advocates these days.”

Despite advocacy being harder “these days” for junior lawyers, Mr d’Apice emphasised that any errors are merely learning opportunities. 

“If I can impart any wisdom, it is that anything I have learned, or Hugh has learned, has just been through stacking up errors and trying to learn from them and not beat ourselves up too thoroughly about them,” he said. 

“Advocacy is scary. The bar table is a scary place, and those transactional colleagues of yours will never know how scary it is, so be kind to yourself. If you walk into the room and you sit down and go, ‘Oh no, I forgot to bow’ and if you realise you’ve been on your feet for 30 minutes, try to forgive yourself for these little moments and just stack up those little mini errors into skills that you’ll have for the future.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with James d’Apice and Hugh Smith, click below: