Judge Frances Millane

Chief Justice Black wrote a paper once and delivered it to, I think, an audience of solicitors, to promote some of the interests of the women barristers and also the model briefing policy, and one of the things that he said was, one of the misconceptions was that if you had a big booming voice that in fact that was some way of winning an argument, whereas they never asked the judges and the judges found that women were very easy to listen to and that they wanted to listen to reasoned argument, they didn’t want to be, not much yelled at, but bombastically approached. And I think one of the problems is that the media has developed this image of what a good advocate is. (a) Rumpolian big voice and someone who engages with the judge in some sort of contest, verbal contest, when in fact most courtroom encounters are much more subdued and judges like listening to reasoned argument at the normal voice level, not the big bombastic voice.

Juliette Brodsky

Actually, Judge Hampel, you trained many readers over the years, what things do you suggest to readers with regard to advocacy techniques?

Judge Felicity Hampel

Well, the sort of catchphrase of advocacy teaching is that advocacy is the art of persuasion. So to persuade you’ve got to get yourself into the mind of a person who you are trying to persuade and before I became a judge I used to say that judges were an extraordinary breed of people who hated being told what to do, they wanted to be let into somebody’s reasoning process rather than bullied into doing something because they were told what to do. So, I talked to people about finding a persuasive advocacy style that would take someone along with them rather than force them or bully them. With young women particularly, I’d explain that when I started at the Bar and there were only about 10 women there and so there were few women role models for me to look at, I realised very early on that I couldn’t model myself on the booming voice, I was 25, I’ve got a soft voice, I can be forceful if I want to, even aggressive sometimes if I want to be, but I was a young soft-voiced female, I wasn’t going to be able to persuade judges or to cross-examine witnesses in the way the big blokes could. So, finding a different way and finding that preparation, logic, analysis were going to stand me in much better stead was the thing that I was trying to teach to others in advocacy and that is sort of feeding back from what Frances (Millane) is saying (that) Chief Justice Black said as well.

Judge Susan Cohen

I’ve been watching jurors’ reactions much more to styles of advocacy because I’m infinitely fascinated by seeing what feedback you get from those faces, and I really do believe that the bombastic approach in many, many instances is not how to win the jury’s hearts and minds. Obviously certain witnesses might call for it, but I find jurors wincing sometimes where the only approach is haranguing a witness, even if they’re a witness who is getting into trouble with their evidence, you can see the jurors wince and sit a bit from it. I don’t see many women cross-examining at length in front of juries in either crime or civil, although in some yes, and I’ve noticed that jurors are very attuned in the main to again the logic and the more subtle way of catching someone up completely by just subtly boxing them in. So I’m not at all convinced that the haranguing wins the community’s favour, except so far as TV shows are concerned.

Juliette Brodsky

Actually, Simone Jacobsen, what about enlisting technology to the cause with the (WBA) website having some podcasts of different advocates, female advocates?

Simone Jacobson

I was just going to ask you that question, Juliette, because I remember we had that conversation where you said “Have you ever thought about taping your own cross examination and putting it on the web as a podcast?” and I said, “No, Juliette, I hadn’t” [laughter], but I just thought of that just before you asked me and it’s a whole different direction where technology could take us in terms of videotaping of women barristers cross-examining on the web that people can click on. But I think there is a lot to be said about the image of women as advocates and cross examining, and that more perhaps can be done with the public and in schools and to get that idea across, the picture of a woman as a strong advocate and cross examiner.

Edited transcript of interviews conducted by Juliette Brodsky on March 30 and April 10 2007 in the Neil McPhee Room, Owen Dixon Chambers East, and filmed by Sarah McLeod, Stewart Carter, Branden Barber and Bonnie Elliott.