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 there are a number of things junior lawyers need to be aware of in terms of the more calculating aspects of advocacy.

“Prepare, prepare, prepare. What that means, though, in practice, is read your case. If you’re at the point where you’re at a late directions hearing, you should, at least as a junior lawyer, go into a directions hearing, know what the pleadings say, read the statement of claim, read the defence and know what the main issues are,” he said.

“If it’s a breach of contract claim, know what the term is, what the alleged breach is, and whether or not it’s defended and if it is defended or denied, know exactly what that is and what evidence you’d need to put on or what evidence is on. Read your pleadings first, so you know what the case is about. Because often, as a junior lawyer, you’re not going to have much of an idea.”

According to Mr Smith, most of the work for a lot of solicitor advocacy is done before you’re actually before the court.

“What I do and what most lawyers should do is at least prepare draft orders. They could be called short minutes, or they could be called draught consent orders. It really doesn’t matter. And get them to the other side as early as you possibly can. If it’s two days before, great, if it’s 12 hours before, fine, if it’s that morning, so be it, and see what their response is,” he explained.

“Then the other thing you need to know is the law to an extent, take that with a grain of salt. Because you’re never going to know it that well as a junior lawyer, you’re never going to know it as well as you want to. But my tip is I would always print off the relevant UCPR rules or court procedure rules in the ACT. I’d read them, and I’d take them to court, and I’d take copies to court as well.”

Additionally, best practice in advocacy work tends to include a lot of emotional intelligence — as well as knowing what a particular judicial officer may say, or what they normally say to an advocate, Mr d’Apice quipped.

VIEW ALL

“I think the balance of that sort of IQ, technical mastery and command over the matter versus a sort of EQ, reading the room, making sure your opponent’s as close to the position you would like them in as possible is the way to go about it.

“I’ve got a fairly settled view, and that’s that being competitive is light years away from being mean or cruel or discourteous or even distant or dispassionate. My competitive edge comes from hopefully being reasonable as a technical practitioner, but from having good, healthy, civil and sometimes quite warm relationships with people on the other side of matters. Competitiveness is not to be construed as banging on the bar table, yelling, sending emails 11:30pm at night, ambushing people. None of that is particularly impressive,” he said.

“If you’re a competitive person, none of that’s really advancing your and your client’s interests. It’s just making you look like a bit of an idiot. The opponents who I think I find most intimidating and most impressive and who are the most effective in the competition, if we’re talking about competitiveness, are very civil, are very polite, are very respectful, are very responsive, and they’re the sort of opponents who you’ll finish a matter and lose perhaps and then end up being very happy to grab a glass of wine or a cup of coffee with afterwards.”

In addition to being reasonably competitive, young advocates should adhere to court etiquette — and know the basics of appearances, according to Mr Smith.

“The only way to really know this is to speak to your senior practitioner or speak to someone who does this from time to time. And an example of that is knowing which side of the bar table to stand on. If you’re the plaintiff, you’re on the left of the bar table as you face the judge. If you’re the defendant, you’re on the right. Know your introductions,” he said.

“If you continue with those very basic things, you can really give yourself a leg up and a headstart on the others. And those are really the non-negotiables. The other thing that has become non-negotiable in this day and age is online court. I’ve done quite a few appearances there now as many practitioners have. I honestly think in every single list I go in, even three years after COVID lockdowns and online court, people still don’t know how to mute themselves. Basic etiquette is non-negotiable, and makes your life much easier and also doesn’t get you off side with the registrar or judge.”

Mr d’Apice agreed and added that knowing these basics can mean being more comfortable as a younger advocate — and, therefore, being more successful.

“Often, things like knowing your sides of the bar table, knowing your bow when you enter, I often encourage early advocates to try to arrive 10 or 15 minutes early to just get a read of the room, a read of what’s going on,” he said.

“To hug the lectern is a bit of advice that I was given that I just stay grateful for. You just hold onto this thing and it automatically puts you into a bit of a stance where you all of a sudden feel a bit more at ease with the world and you’re doing lawyer stuff. I think putting yourself in the position where you are more likely to get the outcome you want.”

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: