Advice or advocacy?

As a litigator, why have we been hired? There are only two possible answers: advice or advocacy.

Advocacy

Advocacy is the quintessential legal task. When a lawyer is mentioned, it is an advocate who is mentally conjured, and fictional characters such Atticus Finch and Lt Daniel Caffey pounding court tables evoked. Lawyers making arguments, fighting cases and chasing justice. In court and out.

Undoubtedly, it’s a glamourous caricature. It fuels fictional adaptations, law school enrolments, and, such is its attractiveness, the image is often adopted as the spokesperson for the profession as a whole. The fearless litigator. A knight for justice. An example of a good lawyer.

A knight is a good analogy, because when advocating, the lawyer is in battle. Litigation is (bloodless) warfare. Advocates fight for their clients. Your opponents are the enemy. There are litigation strategies and courtroom tactics. We hit witnesses and arguments with attacks, parry with defences, and ultimately prevail victorious or leave defeated. No doubt, it’s war. The qualities of a good advocate should therefore mirror those of a good warrior: skill, courage and daring. Tenacity, valour and grit.

But the indispensable trait? Passion. Advocates don’t have to act it (passion is not commensurate with hysterics, shouting and tantrums), but they must certainly feel it. War is no time for apathy.

To be effective, the excellent litigator must carry their papers into court, as well as a passionate soul, a fire in their eye and a hot heart beating in their chest.

After all, it’s a battle. You must be fired up. The best advocacy is always imbued with an undercurrent of emotional force, because if you don’t passionately believe in your argument, why would anyone else?

Advice

Then there’s the quieter, stiller and less glamourous part of the being a lawyer: rendering advice. Listening, considering and explaining. Informing. Making recommendations. Guiding clients in the right direction. Here are your legal rights. Here are the costs and benefits of going to court. And here’s what I recommend.

While advocacy is the treatment, advice is the diagnosis and prescription. The preliminary step. It provides answers to the questions: Where do I stand? And what should I do?

Advice requires performing investigations, outlining options and making a recommendation. The advice might be go to court, but not always. Court is just one treatment option. The advice might also be: go home! Doing nothing is better.

Advisors must listen carefully, have knowledge and ideally some bed side manners. However, most crucially, advisors need a detached mindset. Logic, reason and facts must drive recommendations — never emotion. For this reason, they discourage doctors advising family members. Emotion sabotages the clear thinking required.

So while advocacy requires passion and fire, advice requires the opposite. Rationality, balance, and and an unencumbered mind. In short, a cool head.

Other differences

The differences continue.

Advisors must acknowledge the strengths and weaknesses of a client’s case, to advise on whether court is worthwhile. They must be balanced. On the other hand, advocates are persuaders, and persuasion demands conveying the impression that issues are cut and dry, black and white, open and shut in favour of their client. So while advisor sees nuisances, advocates prefer absolutes. To be convincing, you must be sure.

(This in fact is a good test: if you can see and acknowledge both sides of the argument, you are probably advising. If you have condemned and damned any view contradicting your own as incompatible with the objective truth of the universe, you have probably drifted into advocacy).

The purpose of facts is different. Facts are a tool of diagnosis for the advisor, but a tool of argument for the advocate. Good advice requires all the facts, unvarnished, whereas good advocacy is content with selected facts, and coloured interpretations.

Good advice predicts the outcome of a court case. Good advocacy influences it.

Advisors take the back seat — the client must ultimately decide what to do (it’s just “advice”, after all). But advocates drive. During the lifetime of the case, advocates have complete discretion to run the case as they consider appropriate.

Advisors must be intellectually correct, while advocates seek victory. Importantly, these things are not necessarily co-extensive.

Advisors must always consider the benefits and costs of litigating, while advocates in battle are better unencumbered by such considerations. Military effectiveness is likely to be hampered if soldiers are constantly double guessing whether they can afford to fire missiles.

Advice is a one-on-one, human interaction, and requires commensurate interpersonal skill. The advocate on the other hand is theatrical. They are on the stage. A larger than life presence is necessary, a pleasant nice-bedside manner somewhat superfluous.

If the advisor is doing their job correctly, they may have to deliver some harsh truth early (“you have no case”). Conversely, even in the face of massive challenges, the advocate can bracingly reassure that everything possible will be done to prevail in the courtroom, and can defer the delivery of bad news to be contingent on the outcome of the case.

Advising is an analytical task of synthesising facts with the law to come to a logical conclusion on likely court outcomes. At the other end of the spectrum, advocates generate arguments, and while this is founded in facts and law, it is ultimately an exercise in creativity, not simply logic.

Advisors benefit from knowing the client well. An intimate understanding of the patient’s circumstances ensures recommendations are tailored. Conversely, advocates can remain impersonal, aloof. The treatment, the arguments in court, remains the same regardless.

The need for both

Despite the differences, as advice is diagnosis, and advocacy treatment, clearly clients need both. Advice without treatment cannot cure you, while treatment without advice can make you worse.

However, even though the client needs both, it is hard for one lawyer to be both.

The skills are different, but that’s not fatal. Skills are learnable. More insurmountable is that the necessary mindsets are at divergent ends of the spectrum.

Fierce advocacy backed by emotion, against cool advice better impervious to the same. Passion, fight and grit, versus being cool, calculating and intellectual. Influencing the outcome, or predicting it. Being persuasive or being right. Front seat or back.

Doing both is difficult. How can you successfully switch from the hot heart to the cool head, and back, without allowing any residual temperature from one leak across to the other?

The reality is to be both an excellent advocate and an excellent advisor, the lawyer must prevent what makes them successful in one arena infecting the other. The roles must be kept quarantined. Heat in advice is fatal to accuracy, while hesitancy in advocacy destroys an advocate’s ability to be persuasive.

A challenge? Indeed! It is a tension requiring some cognitive disassociation to navigate. It’s not easy containing the passion that makes you a successful litigator when advising, and equally hard to ignite passion on demand to advocate if you are more familiar with calculating advice.

The result is many lawyers pick (often subconsciously). Batting and bowling require different skills, so cricketers specialise. As it is here. Either you advocate, or advise. The delicate switching process, and different mental positioning required, means it is difficult to be good at both.

Choosing advocacy

Faced with the choice, many lawyers drift towards advocacy. Why?

• More money

• More glory

• Less hard work

Let’s examine each.

Money

Advocates generally make more money.

It’s easier to get hired. If a client comes to a lawyer with a grievance, they often want their lawyer to reflect their belligerent mindset. They want an ally, a champion and a partisan advocate. They want to hear their lawyer say: “Don’t worry, we’ll smash them for you”. Yeah! In their aggrieved state of mind, clients often want to take someone down. They want “justice”. They want to prepare for battle.

They often don’t want to hear such pernickety statements as, “let’s think through the various options, and the pros and cons”, even if (and sometimes especially if) completely accurate.

Hence clients often gravitate towards advocates, fearless and fearsome warriors ready to indulge their psychological preference to fight, instead of a more circumspect advisor.

Alternatively, in some cases, the stakes are so high that the litigants simply have to go to court. If you are fighting over a billion dollars, you don’t need an advisor to assess the costs and benefits of going to court. You are going. And if you are going you need an advocate.

Moreover, once hired, advocacy is lucrative. Lawyers sell time, and litigation takes plenty. While advice is in and out, litigation can last years. That lawyers are often paid for each hour regardless of the result of the case reinforces, rather than regulates, this tendency.

Glory

Easier to get hired, and more profitable. That’s an attractive economic proposition. Compounding the fiscal incentives is the fact that being an advocate appeals to many lawyers professional predilections.

It’s very glamourous to be an advocate. Fame and glory goes to the advocate that wins the case. “The lawyers who get the headlines are the ones that ‘ride in and slay the dragon’”, says Bruce MacEwen, the founder of Adam Smith Esq, the consulting firm. Reputations go to fearsome litigators. Movie adaptations go to those victorious in the courtroom. Client gratitude extends to winners.

It’s much harder to achieve fame by dishing out meticulous but uninspiring advice in the back office. Few litigators dream of being the world’s best advice renderer — most want to be famous for winning (including me).

Ease

Advocacy is also easier than advice.

Full facts not required

In order that an advisor can make a correct recommendation, they must consider all the relevant facts and law, so they can make a correct prediction about likely legal outcomes.

Advocates on the other hand need only concern themselves with evidence and theories most favourable to their clients. Inconvenient truths can be preliminary ignored, and if not raised by the opponent, forever buried. Being able to adopt a one sided view of the world simplifies the advocate’s role, and keeps things easy.

Predictions not required

Advice is also harder because it requires a lawyer to dispassionately balance competing arguments, and predict how a court might decide. And of course predicting the future is tough, as difficult in law as any endeavour.

But for advocates, the need for difficult forecasts is avoided. The advocate merely needs to hammer home a parochial view favourable to the client and hope for the best. Intellectual balance and hard predictive calls are avoided, as is the ignominy of occasionally (and inevitably) being wrong.

Passion is easier than dispassion

Finally, advice is harder because it requires constant emotional vigilance.

From the moment the client walks in the door, it’s natural to start (almost irrepressibly) sympathising with them. To see the world through their prism and their lens, with all its distorting bias, and to begin to empathise and align with their plight.

While this is an entirely human reaction, it is a natural tendency that must be constantly fought if the lawyer is to render proper advice. Partialism is fatal to objectivity, and with the loss of objectivity goes the ability to make an accurate assessment whether the client should go to court. The very purpose of advice.

Hence emotion, and its stupefying influence, must constantly checked.

But easier said than done! It’s very difficult to restrain these feelings, from two perspectives. Firstly, interpersonal. We all want to be liked. But adopting admirable fair-minded balance may be perceived by the client as a treasonous lack of intellectual loyalty to their cause. Or emotional detachment risks looking cold and uncaring.

Second, detachment is hard psychologically. The human mind is prejudiced towards believing its side of the argument is right.

At high school, I competed in the odd debating competition. At the start, when we were presented with a topic and our side of the debate, I was generally agnostic. ‘Abortion? No strong views.’ However, after preparing arguments and practicing furiously for days, by the time I came to speak in the debate, I was fundamentally and absolutely convinced in the correctness of my team’s position, and that it was the only view of the world a sensible person could contemplate (‘denying choice denies our humanity!!’). I had drunk the cool aid. I was emotionally committed to my position. And while this may have enhanced my persuasiveness, it would have utterly sabotaged any ability to make a fair assessment about the objective merit of the same.

Many of us have fallen in love with our arguments in this way. This makes advising psychologically harder. We have to take off the rosy goggles, and constantly resist succumbing to passion and “our side is right” bias due to its corrupting influence on accuracy. Conversely, advocates don’t have to perform the difficult task of holding back the emotional dam. Advocates can let go. Advocates can get emotionally overinvested. Advocates should empathise. They can subscribe to a world view which aligns wholly with the client’s interests, regardless of how divorced from reality it actually is. In fact, a certain preference for emotional loyalty over logical reality probably helps win cases.

Overall favour to advocacy

Money. Glamour. Ease. For all these reasons, there is a general preference of lawyers to (again, subconsciously) prefer advocacy over advice.

To be clear, there is nothing inherently wrong in this. We all have to pursue our happiness, and if it’s easier to be an advocate, and the economic and professional incentives happen to be aligned that way, so be it. The world needs advocates. And following incentives is not immoral. That’s the operating premise on which capitalism works.

However, it is legitimate to ask, from a macro-structural perspective, whether this tendency is causing unbalance in the profession as a whole.

The right balance?

If all patients committed to treatment without advice, what would we say? The treatment was ineffective? Inappropriate? Wasteful? Unfortunately this is sometimes an apt description of litigation.

When you have too many advocates and not enough advisors, you tend to end up with more litigation than necessary. If the majority of lawyers are operating in full time advocate mode, what should be the last resort (court) becomes the first option. And while some cases do need judicial determination, others do not.

These later cases clutter up the court system, jam the cogs, and divert energy and attention away from disputes which genuinely do require a judicial decision. That’s not a good result for society.

But this is the consequence of an excess of advocates. As warriors, their tendency is to charge into battle. Court is the default. Even if the odds are stacked against them, advocates get passionate about (and even cultivate the reputation for) being the underdog, and not giving up without a ‘hell of a fight’. And while such a view may be noble on the sports field, and even an admired legal trait, it is likely to cloud independent thinking about other options.

Do we have to fight? Can we settle? Should we just go home? Without consideration of these questions, inevitably, too many of the wrong cases go to court.

The best defence is recognition. Its fine to want to be a wonderful advocate, but it should also come with a clear-eyed realism that you are not the best person to decide whether court is necessary in the first place. Your emotion and zeal can come in after a client has made a rational decision to go to court.

The same passion which makes you a great advocate must not be allowed to infect the client’s rational preliminary consideration of whether to go to court at all.

Conclusion

Many lawyers want to identify themselves as being the best. But it begs the question. Best at what? A litigator can have two different jobs: advice and advocacy.

And while clients need both, it is the rare lawyer that achieves excellence in both. Divergent skills and (more importantly) divergent mindsets are required, and human beings on the whole are simply not that flexible, nor capable of such split specialisation.

Forced to choose, many litigators gravitate towards advocacy. It’s easier, and results in more fame, glory and remuneration. For one lawyer, this is fine. But when everyone tends this way, it risks collective imbalance and professional drift, and cluttering the courts unnecessarily with cases that would have not been there for want of a more dispassionate assessment.

In Australia, after a spate of alcohol-fuelled violence between young men, advertising campaigns were run urging people to “think before they punch”. It is sagacious advice. Before going to court, before committing to the punch, we should think: is this a good option? The only option? Given the costs of fighting, we must always consider the alternatives. Defaulting to a fight is not the mark of a reasoned strategy.

There will always be a place for hot hearts. Passionate litigators who fight for their clients are a necessary part of an effectively functioning justice system.

But there is also a place for the cool head. And in some ways, the careful advisor who (when appropriate) advises against court does more for their client, and the justice system as a whole, than the famous litigator who fights every case to their dying breath.

Therefore, we must constantly check in with ourselves and, when working with client, reflect on the following questions:

• What role am I currently in?

• Am I advising?

• Am I advocating?

• Is this what the client requires?

• (Importantly) Am I in the right frame of mind to do it?

• (Critically) Am I the best person to do it?

Without this, we risk disjuncture between what we are doing, and the service the client really needs.

About the author

Samuel J Woff is a commercial construction lawyer and construction litigation specialist, speaker and published author. He has broad experience across a range of construction litigation matters including domestic and international arbitrations, litigation in the Victorian Supreme Court and security of payment adjudications.

Copyright 2023 Samuel J Woff