The NSW Bar Rules exhort barristers to “exercise their forensic judgments”. This is regularly performed by giving independent advice, through forensic assessment, even when contrary to client desires. Further, the conduct rules prohibit acting as the “mere mouthpiece of the client or of the instructing solicitor”. [1] Similar cautions are present in the Solicitor’s Conduct Rules.[2]
The term ‘forensic’ is variously described as: belonging to courts of judicature; belonging to argument or rhetoric; or “relating to or dealing with the application of scientific knowledge to legal problems”.[3] The focus of this article is on the last of these three definitions.
When forensic duty calls
In the Sherlock Holmes’ case of a homicide and a stolen racehorse (the mystery of the “Silver Blaze”), the famous detective employed forensic skill to elicit detail that everyone else, in their factual examinations, had missed – a fact most telling by its absence. Besides proving a satisfying read, the story may illustrate a profound similarity shared by the great detective and the humble, forensic advocate.[4]
This duty to forensically examine one’s case asks a little more than the advice of Scalia and Garner that the advocate must not only their case, but must also know the opponent’s case.[5] It embraces the caution, “You never know until it is too late, what damage a gap in your knowledge of the record can do”.[6]
In preparing a matter, the advocate must formulate, and then prosecute, the underlying two elements of a case theory. These two elements are: the legal elements of the case and its material facts.[7] A case theory that accurately and forensically combines these elements will prove persuasive.[8]
The three stages of forensic legal analysis
Palmer distils the legal investigative process into three distinctive stages: Adbuction, Retroduction and Investigation.[9] Adbuction is the “imagining of a …working theory of the case that provides an explanation for the evidence currently available”; Retroduction is “the identification of tests that might confirm or disprove that hypothesis”; and Investigation is the carrying out of those tests.[10]
The skill of forensic analysis takes the advocate from the realm of the portrayer of facts to the prosecutor able to forcefully exert influence. When the advocate takes the facts from the position of what transpired, through the filter of proof to the position of “How do we know that this is what happened?”[11] they form an independent calibration of the bona fides of the matter.
Evidence that the Court requires this of the advocate can be found in the recent judgment of Hallen J in Limberger v Limberger.[12] In that case, his Honour expressed the advantages that an advocate’s forensic judgment can provide to the Court.[13] His Honour alloyed this reflection with a lineage of judicial observation that enforced this key aspect of the advocate’s forensic independence.[14]
Why these duties are still in demand
An advocate’s forensic duty is an increasing, yet highly beneficial demand of the litigation process. There is a distinct space in case preparation and assessment for the skill of determining “objectively established facts and the apparent logic of events.”[15]
Ultimately, the duty of the advocate is bound to their obligation to the Court, “The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary”.[16]
In the judgment in Limberger v Limberger, it was stated that, no degree of concern for the party’s interests, can override the duty which counsel owes to the Court. At the heart of, and the justification for, this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly, and necessarily, puts in all counsel who appear before it.[17]
Lord Reid, in Rondel v Worsley [1967] 3 All ER 993 at 998, expressed this duty of the advocate to the Court in the following terms,
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question… he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to conflict with his client’s wishes, or with what the client thinks are his personal interests.
The ultimate benefit to the advocate, client and the Court, is that by deploying keen forensic judgment, the litigation is restricted to the legitimate facts in issue, thereby underscoring another key obligation of the advocate.[18]
In litigation, it is folly to not test your case, and naïve to leave this critical aspect to the eager appetite of your opponent.
I leave the final word, and timeless sage advice, to Ross QC: “Painstaking preparation means that luck will run your way.”[19]
[1] Legal Profession Uniform Conduct (Barristers) Rules 2015 at r 4(3), 42 & 43.
[2] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 at rr 17.1-17.2.
[3] Definition of ‘forensic’, Merriam Webster Dictionary; accessed 7 November 2020.
[4] Skotnicki, M., “ ‘The Dog that Didn’t Bark:’ What We Can Learn from Sir Arthur Conan Doyle About Using the Absence of Expected Facts.” Briefly Writing 25 July 2012.
[5] Scalia, A. & B.A. Garner, Making your case (2008, Thomson West) at 8-10.
[6] Note 5 at 8.
[7] Palmer, A., Proof: How to Analyse Evidence in Preparation for Trial, (2015, Thomson Reuters, 3rd ed.) at 59.
[8] Note 7 at 59.
[9] Note 7 at 31.
[10] Note 7 at 31.
[11] Note 7 at 65.
[12] Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 per Hallen J.
[13] [2021] NSWSC 474 at [65].
[14] [2021] NSWSC 474 at [68]-[71]; Rondel v Worsley [1969] 1 AC 191 at 227; Giannarelli v Wraith (1988) 165 CLR 543 at 556-557; Hobsen v R [1998] 1 Cr.App.R 32 at 35; Olsen v Olsen [2019] NSWSC 217 at [45] per Pembroke J; Sarant v Sarant [2020] NSWSC 1686 at [39]-[43] per Hallen J.
[15] Fox v Percy [2003] HCA 22 at [31] per Gleeson CJ, Gummow & Kirby JJ.
[16] Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 at 556-557 per Mason CJ.
[17] [2021] NSWSC 474 at [76] per Hallen J.
[18] Note 1 at r 43(a); Note 2 at r 17.2.1.
[19] Ross QC, D., Advocacy, (2007, Cambridge University Press, 2nd ed.) at 21.
