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!

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6 Comments

Filed under bar, barristers, bull seals, courts, judges

6 responses to “You can’t make a silk purse out of a sow’s ear…

  1. HVB

    I have had one encounter with Mr Riordan, at a social event. He asked me to jump naked out of his birthday cake for his sixtieth birthday…

    Enough said, really.

  2. Legal Eagle

    In light of your above comment, I just had a look at his profile.

    Ewww!

  3. Law Student

    Sometimes i get some crazy ideas. People who are on the path of becoming barristers should also take drama classes, it would compliment their physical performance in court.

  4. Paul

    Interesting thoughts – I’ve been astounded by how bad some counsel can be. I often sit there in court thinking, “I’m glad I’m not paying $5000/day for this.”

    Some of my thoughts, which overlap with some of yours:

    DON’T labour your good points: the Judge KNOWS what you are definitely right about from reading your submissions and generally knowing the law – what you need to convince him or her of is those points that you’re not definitely right about. Some of the best counsel I’ve seen barely touch on their good points – they get straight into nailing all of their dubious ones, even opening with “if I am to succeed, I need your Honour to accept the following:”

    DO bring the rules, legislation and authorities with you, for god’s sake. Absolutely unbelievable how many barristers don’t even manage this.

    DON’T mutter, snigger, interject, roll your eyes, or otherwise convey your disgust with the other side’s submissions – it just makes you look childish and unprofessional, and does nothing whatsoever to help your client.

    DO answer the judge’s questions directly, rather than trying to skirt around them. Judges know when you’re dodging the real issue, and you are never going to ‘slip one by them’ by not answering directly: they’ll just assume you don’t know, or that you know you’re wrong.

    DON’T joke. It is very hard to crack a decent joke in submissions without breaking up the flow of your argument, looking silly, and (more importantly) simply not being funny. It also makes you look nervous and/or unprofessional. If you’re going to joke, make sure (a) it’s REALLY funny and appropriate and (b) you’re positive the judge will appreciate it.

    DON’T argue with witnesses. Control them, but don’t argue with them. If they are uncooperative it will be obvious and will taint their evidence – but by arguing you create the impression that you are antagonising them. And of course, you’re not there to get a full confession, just to put your version of events and get them to agree or disagree.

    DO be clear about what orders you’re seeking. Judge’s hate the phrase “I’m in your Honour’s hands” – you’re there to ask for specific orders, and the Court is not there to pull orders out of the air for your benefit.

  5. Legal Eagle

    Couldn’t agree more, Paul. It’s all about knowing what you’re there for.

    That being said, I know from sad experience that sometimes you don’t have time to be properly prepared. Someone comes to your office with five folders you’ve never seen before and says “Can you go down to Court in half an hour with this file?” Therefore, I must admit that once a Master asked me “What happened to the Second Defendant?” (I was there on behalf of the Plaintiff). I had to admit, “I didn’t have time to read the file fully, I don’t know.” How embarrassing. I think I blushed to the roots of my hair. But as you say, it’s always better to admit you don’t know than to make it up…

  6. Pingback: Catching some zzzzzzs... « The Legal Soapbox

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