You can’t make a silk purse out of a sow’s ear…

When I was a law student, I thought every QC would be absolutely amazing, a stellar advocate who would keep me entranced. I was mistaken. Just like every group of people, there are some great ones and some, um…not so great ones.

I gather some silks apply a multitude of times before they are accepted. One such barrister is sick of being passed over and has “spat the dummy“, prompting a response from the Chief Justice. This got me thinking. I guess the problem is that most barristers never get direct feedback on their performance. The only markers for how one is performing are
(a) salary;
(b) number of briefs;
(c) number of wins;
(d) reputation amongst one’s peers; and
(e) number of times the presiding judge gets incredibly stroppy with said barrister.
So barristers who get passed over for silk may have no idea why this may have occurred.

A preliminary observation: barristers are very good at talking. But it amazes me what bad listeners many barristers are. Often they don’t listen to the judge, their opponents, their instructors, their clients and/or witnesses…

Well, I’m not a judge and I certainly don’t purport to speak on behalf of any judges. But I can give some feedback about adversarial performance from a personal perspective. My observations are gleaned from clerking, instructing barristers in Court and appearing in small matters myself. I have also spoken to other lawyers (barristers, solicitors and former judge’s associates). I can’t promise it will make a silk out a sow’s ear, but it’s worth thinking about:

• Always remember what your ultimate goal is! What is the essence of the case? What facts are you trying to prove? What orders do you want to the Judge to make? You should be able to hand a form of Orders up.
• What powers does the judge have? If a judge does not have the power to make a particular order, the argument is fruitless.
• Do the facts back up your case? Check. If you are arguing that your client is a equitable mortgagee, for example, make sure that you have the facts at hand to point to that conclusion.
• Keep it short, sharp and to the point. Vague waffling obfuscates your argument and fools no one. It is also very irritating and wastes the Court’s time.
• It is particularly important to listen to the Judge (to gauge how your argument is being received) and to listen to witnesses.
• When things aren’t going your way, do not roll your eyes, mutter or sigh at the judge, witnesses or your opponents. It is very unprofessional and childish. Also, do not make audible rude comments which can be heard by the judge and/or court staff.
• Don’t challenge vague affidavits or witness statements just for the sake of it. It may cause the other side to hone its evidence more specifically in response to your challenge, or to call its witness to the box, thus making the evidence more convincing.
• Don’t call on witnesses to produce evidence unless you are really sure what they are going to produce. If it is evidence against you, you may be forced to produce it as your exhibit!
• An aggressive cross examination can make a witness angry and defensive – sometimes softly, softly is best.
• Don’t get caught up in the heat of the moment and forget what your argument is. For example: a barrister cross-examines the other side’s witness aggressively, proving that the witness is incompetent. In fact, it is crucial to his client’s argument that this particular witness be competent (eg, the client is claiming he had an agreement with this witness and that the witness was competent to perform it).
• Don’t cross-examine a witness with regard to their version of events and then fail to put another version of events to them – if you do this, there’s no point to the cross examination, because the witness just insists their version is true, and there’s no alternative version to gainsay them.
• Don’t constantly interrupt the witness if they are giving relevant evidence.
• Don’t keep repeating the witness’s answers to your questions if you want to destroy his or her credibility, or at least cast some doubts upon the witness. The witness’s account is emphasised by being repeated. (eg, Q: You say that you didn’t bank the cheque? A: I did bank the cheque. Q: You did bank the cheque? I put it to you that you did not.)
• In cross-examination, don’t nit-pick over irrelevant details which do not impinge upon your case.
• Make sure you’ve read cases that you cite – don’t come to court without having read a case, or only having read a précis of it.
• Check your written submissions before handing them to the judge – they should not have spelling mistakes, omit important words (such as “not”) or use incorrect cases.
• A practical point – if the facts your client has given you look favourable, make sure that you tell your client that they have a good chance, but only if the judge accepts your client’s testimony as true. You do not know what the other side will do – it may be that they will have evidence which will destroy your client’s case.
• Always be honest with your client about prospects of success; it prevents resentment and possible litigation in the long run.

There’s my five cents worth. One day I might even go to the Bar and try to put it all into practice. That is, if I win the lottery!