The Silent Revolution in Methods of Advocacy in English Courts

George Keeton wrote, in 1943, about “a silent revolution in methods of advocacy as practiced by the English Bar over the last fifty years” . Changed standards of etiquette, professional rules and greater control exerted by judges over these years led to a vast increase in courtesy in interactions with judges and between counsel. The conduct of prosecutions had also improved. They were generally no longer carried out in a sneering hectoring manner with witnesses mercilessly browbeaten or bullied. Dramatic types of 19th Century advocacy, in which counsel was prepared to use mannerisms, tricks of speech and gestures to heighten the effects of their pleas to juries, was replaced by a conversational and matter of fact tone. The idea that to cross-examine meant to examine crossly had almost vanished. Appeals to juries were now to reason combined with a controlled, subtle and focused appeal to emotion. Jury trials in civil cases had continued to decline. Advocacy before judges was concerned with facts and the law, not oratorical flourishes. Fewer criminal trials before juries took place as the jurisdiction of the magistrates had widened further. The more restrained and conversational style of advocacy before criminal juries may have been to some extent influenced by that of the civil courts, where the leaders of the bar appeared more often and increasingly without juries. Two dominant members of the bar during the first half of the 20th Century were Patrick Hastings and Norman Birkett. Their styles, because of triumphs linked with them, were influential on those of other barristers. Hastings was a master of direct forcible speech without any embellishments or ornamentation and prized brevity. Unlike Hastings, Norman Birkett believed that the advocate ought to use the full range of English speech. Other factors lay behind the mainly conversational and matter of fact advocacy that had become established. These include a widely held suspicion of rhetoric and, very importantly, better informed and greater educated juries. Jurors were less susceptible than their predecessors to theatrical gestures and melodrama, which had largely been replaced in literature and on the stage by introspection and realism, references to God and the Bible, elegant and flowery, but empty, speech and appeals to strong emotion and prejudice. In a more scientific age jurors expected more of an appeal to reason. The success of barristers such as Hardinge Giffard, John Holker, Charles Russell and Edward Clarke, during the closing decades of the previous century, may have been because they appreciated early on the changes that were occurring to juries. Attempting to catch the eye of the press to help create a reputation, useful to generate work, was an important factor behind the emotive, vividly worded and aggressive advocacy of the early Victorian period and afterwards. The later decline of court reporting in the newspapers, removing much of the gallery from the stage, may well have contributed to the more subdued form of speech.