Art is the elimination of the unnecessary
- May 6
- 8 min read
There is a discipline in advocacy that has nothing to do with courtroom drama and everything to do with the art of persuasion. It is the discipline of knowing which facts carry the argument, which ones support it quietly, and which ones, however true and however compelling to the client, should never play at all. Picasso called it the elimination of the unnecessary. In a courtroom, it is the difference between a case that persuades and a record that merely overwhelms.
Wessel Badenhorst and Elmien Liebenberg are both advocates who came back to the attorneys' profession. This article is their account of what that training produced, why it changes the way a matter is handled from the first letter of demand to the last word of oral argument, and why clients in serious litigation should care deeply about whether that discipline is present in their legal team from the beginning, not just at the point when someone finally stands up in court.
That observation is attributed to Picasso, and like most things attributed to Picasso, it has survived because it is true. He was talking about painting. But he was also, without knowing it, describing the central discipline of advocacy.
Elmien Liebenberg and I are both advocates who returned to the attorneys' profession. Between us we have collectively spent more than 50 years in the courtroom and the boardroom, in the preparation room and the settlement room, and in the long stretch of difficult matters that never quite fit the textbook. This article is our attempt to explain what we brought back with us when we made that move, why advocacy produces a different kind of legal thinking, and why that combination of disciplines produces better work for clients than either one produces alone.
"Most lawyers present the facts. The best ones conduct them."
What is an advocate, and why does it matter?
The distinction between advocate and attorney is older than most people realise. In the English tradition it is the difference between the barrister and the solicitor. In the South African tradition it is the difference between the advocate of the bar and the attorney of the side bar. The functions were deliberately separated: the attorney managed the client relationship, gathered the facts, prepared the matter, and instructed counsel. The advocate took those facts into court and argued the case.
The Legal Practice Act has formalised what practice was already producing. The traditional split bar has been abolished, and advocates may now obtain briefs directly from the public, hold fidelity fund certificates, and operate trust accounts. South Africa is transitioning towards a unified legal profession, and that transition will take a long time to bed down. But the formal removal of the structural divide does not dissolve the practical one. The lawyers who will serve their clients best in this new environment are the ones who understand both disciplines, know when each is required, and have the range to draw on both in the same matter.
An attorney is trained, at the core, to protect. To record, to advise, to preserve options, to manage risk, and to maintain the client relationship across the full arc of a matter. That is an essential function and a demanding one.
An advocate is trained, at the core, to persuade. Not to assemble, not to record, not to preserve, but to make a decision-maker want to agree with you. That is a different starting point and it produces a different way of looking at every problem. When you spend your formative years in an environment where persuasion is the only currency that matters, it changes how you read facts, how you frame issues, how you manage time, and how you think about what a client actually needs from the legal process.
Think of a symphony orchestra with a hundred instruments and a full choir. Every instrument is real. Every musician is skilled. Every note in the score is there for a reason. But without a conductor deciding what plays loudly, what plays softly, what drops away entirely, and what carries the melody at the critical moment, the result is not music. It is noise. The advocate is the conductor. The facts are the instruments. And the performance that matters is the one that happens in the room where the decision will be made.
"The six rules, in three pairs"
Rule one and rule two:
See the case clearly, not the client's version of it
The first thing advocacy training produces is the discipline to identify the determinative issues early and to separate them from everything else. Advocates are trained to read a set of facts and ask immediately what will actually decide this matter. Not what is interesting, not what is upsetting, not what the client most wants the world to know, but what a court will have to resolve in order to reach a conclusion. That discipline prevents over-lawyering. It keeps the matter focused on what will move the outcome rather than what feels important from the inside.
The second rule follows directly from the first, and it is the one clients sometimes find uncomfortable. The advocate must maintain a professional distance from the client's version of events. That distance is not indifference. It is clarity. The outcome of a matter is not what the client deserves, not what the facts should produce in a just world, and not what the client has convinced himself is obvious. The outcome is what the judge decides. An advocate who loses that distinction, who becomes so invested in the client's emotional truth that he can no longer see the case from the bench, has stopped being a lawyer and started being a partisan. The conductor who plays only the instruments the composer loved, rather than the ones the performance requires, is not serving the music.
This pair of rules, focus and distance, is what allows an advocate to be genuinely useful to a client rather than merely loyal to them. Loyalty without clarity is not a professional service. It is a comfort.
Rule three and rule four:
The court is the audience, and it must be able to trust you
The advocate's first duty is not to the client. It is to the court. That is not a polite formality. It is a structural reality that shapes every decision an advocate makes about what to argue, what to concede, and what to put before a tribunal.
An advocate who advances a case he knows to be false, who presents evidence he suspects will not survive scrutiny, or who withholds what the court needs to decide fairly, is not simply breaking a professional rule. He is destroying the one asset that makes him effective: his credibility in the room where the decision is made. Judges remember advocates who waste their time. They also remember advocates who can be trusted, and that trust, built over years and across many matters, is one of the most valuable things a practising advocate possesses.
The fourth rule is the practical expression of the third. The advocate must test the evidence before the opponent does. That means asking, before any document is filed or any witness is prepared, whether the evidence is truthful, whether it is credible, and whether it will withstand the full force of opposition scrutiny and cross-examination. A good case on paper can collapse in court if the evidence has not been honestly assessed from the other side's position. The advocate who has done that assessment and shaped the case around what will actually hold is a more dangerous opponent, not a less committed one. He has eliminated what will not survive, which brings us back to Picasso.
This pair of rules, duty to the court and honest assessment of the evidence, is also what creates the professional distance described in the first pair. The advocate who knows he must be able to stand behind every argument in front of a judge will not allow a client's certainty to substitute for a clear-eyed view of what the record actually supports.
Rule five and rule six:
Persuasion is a craft, and it must be practised in every form
The fifth rule is that the advocate must be able to persuade in every medium the legal process requires. Oral argument in court. Written submissions and heads of argument. Affidavits and pleadings drafted so that the argument is visible in the structure of the document and attractive to accept before a word of oral argument has been spoken. Correspondence that advances the client's position and tests the opponent's without revealing more than is necessary. Each of these is a different performance of the same underlying skill, and an advocate who is formidable in one medium but weak in another is not a complete advocate.
The sixth rule is that advocacy thinking must enter the matter at the beginning, not at the door of the courtroom. The decisions that determine whether a matter will be persuasive or merely comprehensive are made long before the first hearing day. They are made when the issues are first identified, when the pleadings are drafted, when the evidence is gathered, when the correspondence is written, and when the strategy is set. An advocate who is also the attorney on record, who carries the advocacy discipline into those early decisions, is doing something different from a legal team that assembles the best possible record and then looks for someone to argue it.
This is also where the research changes character. The attorney finds the law. The advocate finds the law that can be used persuasively in argument. Research aimed at persuasion looks for authority that answers the real issue, anticipates the opponent's best point, and can be translated into a practical argument a judge can follow and accept. It is research conducted with the conductor's question already in mind: how does this play in the room where the decision will be made?
What advocates are not
It would be dishonest to write this article without saying plainly what advocacy training does not produce.
Advocates are not always natural relationship managers. The courtroom is an adversarial environment with defined rules and a finite duration. Client relationships are long, complex, and require a different kind of sustained attention. The attorney who has managed a client through a difficult transaction, a regulatory challenge, and then a dispute has built something that an advocate who appears only at the hearing has not.
Advocates are not trained for the full range of transactional and advisory work that forms the backbone of most commercial legal practices. The skills that make an advocate effective in a hearing, clarity, economy, the elimination of the unnecessary, are not always the skills most needed when a client is negotiating a complex agreement, structuring a transaction, or navigating ongoing regulatory obligations.
The distinction is not a hierarchy. It is a division of function, and the most effective legal work happens when both functions are present and properly integrated. That is the combination WBIncorp is built around.
Why does this matter to clients?
Clients who are about to enter serious litigation, or who are already in it, should ask a direct question of their legal team: at what point does advocacy thinking enter this matter?
If the answer is when the matter reaches court, it has entered too late. The decisions that determine whether a matter is persuasive or merely comprehensive, whether it is a symphony or noise, are made long before the first hearing day. They are made when the issues are identified, when the pleadings are drafted, when the evidence is gathered, when the correspondence is written, and when the strategy is set. An attorney who has been trained to think like an advocate makes different decisions at every one of those points, and those decisions compound across the life of a matter.
The conductor who studies the score before the orchestra assembles does not have a better set of instruments, but he certainly has a clearer idea of what the performance requires, and that clarity changes every decision made between the first rehearsal and the final note.
Picasso removed what did not belong. The advocate identifies what will persuade and builds the case around that, not around everything that is true, but around everything that will matter. In litigation, as in art, the difference between a powerful result and an overwhelming one is almost always what was left out.
Written by:
Wessel Badenhorst and Elmien Liebenberg
Date: May 2026
