Unpacking the “adversarial advocate”

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the dictionary, describing a trial or legal proceedings “in which the parties in a dispute have the responsibility for finding and presenting evidence.” The adversarial legal system relies upon this responsibility, which is traditionally performed by the lawyers. The second definition does not necessarily have the competitive flavour of the first.

“Advocate” is a noun that also has two meanings offered in the dictionary. First, “a person who publicly supports or recommends a particular cause or policy”. Secondly, “a person who puts a case on someone else’s behalf”. The second meaning is the traditional notion of the role of the lawyer. However, can a lawyer put a case on a client’s behalf while also facilitating the client’s direct participation in the process?

Simply on the basis of these definitions, I would argue that:

1. A lawyer can adopt the quality of being “adversarial” without being oppositional/competitive in approach.

2. When applied to lawyers, the term “advocate” means partisan representative of the client’s interests.

3. An advocate can facilitate direct client participation – meaning that collaborative participation with the client or restricting the lawyers’ role to expert legal opinion are both available as well as the spokesperson role. The point is that the lawyer’s contributions are on behalf of the client. The client can also contribute.

I’m posting this because I am interested in other people’s thoughts about these tentative ideas. 

What do you think?

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This entry was posted in Dispute resolution and tagged by Dr Olivia Rundle. Bookmark the permalink.

About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

8 thoughts on “Unpacking the “adversarial advocate”

  1. Olivia
    I think that you have given us a good summary of the issues
    Advocating for a client need not be competitive or problematically zealous
    A lawyer can be also be assertive in protecting a client’s interest
    The frame of practice when entering a mediation should be to further a client’s interests through the unique process of mediation that differs so markedly from the court process

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  2. Olivia
    I think that you have given us a good summary of the issues
    Advocating for a client need not be competitive or problematically zealous
    A lawyer can also be assertive in protecting a client’s interest
    The frame of practice when entering a mediation should be to further a client’s interests through the unique process of mediation that differs so markedly from the court process

    Like

  3. Olivia – I find this a really interesting and worthwhile observation. While there is a place for detailed analysis and theorising, it is also important to occasionally get back to basic concepts. In this case, the ordinary meaning of the word, seems a useful way to reframe our thoughts.

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  4. Pingback: New Article: “On Mediation, Legal Representatives and Advocates” by Bobette Wolski | The Australian Dispute Resolution Research Network

  5. I came across this quote: “Advocate without being adversarial”

    I take this to mean that as a lawyer, or anyone representing a client, you should bring the same intensity to bear on the client’s case as you would if you had to go to court. The difference being the purpose. In a trial the purpose is clearly win/lose. The entire legal system is purposely designed on a win/lose model.

    In my practice I have redined my purpose as win/win. Similar to a court case where I do not stop until I know I will win (defined as: the other person loses more than you do), in my case I do not stop until we know we will win/win.

    I think this captures everything. Would you add anything to this basic equation?

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    • Thank you John. Advocacy is essentially about persuasion on behalf of a client, and the style of advocacy adopted is not necessarily adversarial. Within adversary processes an adversarial competitive strategy is the traditional and expected way to persuade a third party decision maker. I think the most important decision points are: Who needs to be persuaded? Who is best placed to convince that person (ie, would it be better for you to support your client to negotiate directly or to negotiate on their behalf)? What strategies are most likely to bring that person towards agreeing to what the client wants? Our purpose should always drive our practice.

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  6. For me the first few words in your description says it all for me. “The traditional lawyer is described as the “adversarial advocate””. That is tradition provides for a lawyer to be somewhat combative to the process and sympathetic to the client. Within adversarial there are nuances scaling up to adversarial such as assertive, straight forward, unyielding and the list goes on. I look at advocacy as being client side and all encompassing and as such lacking nuances.
    Love the dialog as I am about to start my own legal journey as as somewhat mature student (62 years).

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