Nothing is certain to excite the interest of a lawyer more than a good trial story. The same must have been so in 1836 and 1837 when Charles Dickens published The Pickwick Papers and the story of a suit for breach of promise bought by a widow against Mr Pickwick; Bardell v Pickwick. In 1918, over eighty years after its publication, Theobald Mathew¹ wrote an historical explanation of The Pickwick Papers which put the story of the trial and its procedural peculiarities into perspective. His explanation revealed that the story was partially based upon a famous case then being contested; having adopted the impressive opening statement of one of the real life counsel.² The Judge in Bardell v Pickwick and at least one counsel were caricatures of men living and working at the bar and bench in England at the time. His thorough explanation leaves only one question unanswered: why is it that the witnesses were allowed to remain in court while others gave evidence?

Somewhat surprisingly, the answer is that there was then and is today no rule of law requiring a witness to remain outside of Court until called to give evidence.³ In the case of Moore v Lambeth County Court Registrar, Lord Justice Edmund Davies said that it was entirely in the discretion of the trial judge whether or not witnesses are ordered out of court until they are called to give evidence.⁴ The Lord Justice expressed his own personal preference for having the witnesses out of court, but acknowledged that some judges ‘prefer witnesses to remain in court so that they may observe their reaction when they hear the evidence of other witnesses.’⁵

Edmund Davies LJ also referred to the rule that, if the court orders that witnesses should be out of court and a witness nevertheless remains in court, the trial judge has no right to refuse to hear the evidence of the witness. The Court of Appeal expressed the same view in the 1967 judgment of R v Thompson⁶ where there was no intention to call the defendant’s wife to give evidence. She was present in court throughout the trial. After the defendant had given evidence, it was proposed to call the wife; but the court refused to allow this. On appeal it was held that the court had no power to refuse to allow a witness to be called on the ground that the witness had been present in court.⁷

The practice of separating witnesses during questioning was first documented in the story of Susanna and Daniel contained in the Apocrypha scriptures.⁸ In the story Susanna was accused of adultery by elders of the church. Daniel examined the witnesses separately and asked them the name of the type of tree under which they had seen the act performed. The elders’ accounts were not consistent and, as a result, Susanna was judged to be innocent.⁹ This could just as easily have been a story illustrating the inherent unreliability of identification evidence.¹⁰ The purpose of excluding witnesses from the court has not changed since that time. The practice remains as an effort to deprive a later witness of the opportunity of shaping his or her testimony to correspond to that of an earlier witness.¹¹ The practice is said to be an inheritance from Germanic Law.¹² In fact, today in German civil proceedings each witness gives evidence separately in the absence of all witnesses who are to be examined.¹³

At the times both Dickens and Mathew were writing, not only was there no rule requiring witnesses to be out of court, but there was no clearly established practice. This is demonstrated through an examination of the cases concerning witnesses heard between 1821 and 1842. Although it may seem to be only ‘an interesting irrelevancy’, it is of some note that some of the men caricatured in The Pickwick Papers were the very barristers and judges arguing about the state of the law with respect to witnesses during the period. For example, Mr Mathews notes in his article that not much is known about Serjeant Bompas, [14] while it true that no biographical notes have been published about him, we do learn something about him as a lawyer from the following cases.¹⁵

In 1821, the case of The Attorney General v Bulpit¹⁶ held it to be an inflexible rule that, in the Court of Exchequer, a witness who is present in Court during a trial when he had been ordered out of court cannot be examined. In that case, the Lord Chief Baron held it was so even though the witness was a person not originally intended to be examined. The rule was confirmed on appeal.¹⁷

Lord Chief Justice Best considered the issue of witnesses in court seven years later in 1828. In the case of Taylor v Lawson¹⁸ an application was made by Serjeant Andrews, for the plaintiff, to give directions for the rest of the witnesses to go out of Court.¹⁹ Best LCJ granted the application saying:

“I confess that for one I wish the same rule prevailed here as prevails in the Houses of Lords and Commons, where no witnesses are allowed to be present except the person who is under examination.” ²⁰

In the case of Rex v Colley,²¹ heard in 1829, witnesses were ordered out of court ‘on the usual notice that they would not be examined if they remained.’ One witness was called to produce a plan of the premises and remained in court after he was called in. He heard other witnesses examined. Serjeant Bompas and Jardine for the prisoners objected to this witness then being called to give evidence. The prosecution argued that it would be unjust and mischievous to deprive the Crown or a prisoner of a witness’s testimony because of a mistake made by the witness. Littledale J consulted with Gaselee J²² and ruled that it depended on the circumstances of the case whether such a witness ought to be examined. In this case the witness was received.

Beamon v Ellice, Esq,²³ heard in 1831, was a negligent driving case where the claim was for damage to a carriage after its collision with a cart. The witnesses had been ordered out of court but after a short time one witness had returned to court and heard the evidence of some of the other witnesses. Erskine,²⁴ for the defendant, objected to her being examined. Gurney and Greaves, for the plaintiff, argued that she should be allowed to give evidence only on a distinct point and not touch on any areas touched on by other witnesses. Their argument was that the ‘object of sending witnesses out of court is, that they may not all say just the same thing, because they have heard one another examined, which cannot be the case where the witness speaks to entirely new facts.’²⁵

Erskine argued that, if the rule²⁶ is relaxed, then there will always be a question of whether the witness comes to speak to a new fact. Mr Justice Taunton²⁷ gave leave to move to enter a nonsuit in case he was wrong and allowed the witness to be examined. He commented that the difficulty with allowing witnesses to prove new facts if they had remained in court is that they may be induced to change their evidence to prove a fact left unproved by a witness they had heard. He commented further, however, that ‘there is always a great deal of time lost by sending the witnesses out of Court; and I think, that, in general, it does not answer any good purpose.’

In Regina v Gaynor,²⁸ a perjury case heard in 1834, it was proposed to call the Clerk of Petty Sessions to give evidence. Torrens J held, upon objection by counsel for the defence, that he would “exercise a sound discretion” in refusing to allow a person to be examined who had been present in Court when the questions to be put to the witness were raised.

In 1835, Baron Alderson²⁹ decided the case of Cook v Nethercote³⁰ in which after all witnesses were ordered out of court, one Hon Capt. Stanley was called for the defendant. Thesiger,³¹ for the plaintiff, asked him if he had not been in court after the order to leave was made. Baron Alderson said that that would be no ground for rejecting his evidence. ‘It would be only a matter of observation respecting his testimony.’³² In his judgment, Baron Alderson cited the case of Doe d. Good v Cox³³ where the Court of King’s Bench ordered a new trial because witnesses should have been heard even though they remained in court after an order for witnesses to leave was made.

In January 1837, Baron Alderson heard the case of Southey v Nash³⁴ in which Thesiger acted for the defendant. There, Platt for the plaintiff in a case of negligent driving of a horse, applied for the defendant’s witnesses to be ordered out of court after he had already closed the case for the plaintiff and addressed the jury. Thesiger submitted that it was too late to order witnesses out of court as all of the plaintiff’s witnesses had been in court throughout the trial. Baron Alderson held that either party had the right, at any moment, to require that unexamined witnesses leave the Court.

Regina v Murphy and Douglas,³⁵ heard in December 1837, was a case concerning a conspiracy between Messrs Murphy and Douglas to incite persons to resist payment of church-rates. The Crown asked that a witness be excused while a legal argument regarding his evidence was heard. Serjeant Bompas appearing for the defendant, Douglas, argued that the other side had no right to order a witness out of court. Coleridge J held that:

“it is almost a matter of right for the opposite party to have a witness out of Court while a discussion is going on as to his evidence.”³⁶

In 1842, Erskine J heard the case of Chandler v Horne³⁷ where it was submitted by Hodges, for the defendant, that a witness who remained in court after an order was made ought not be examined. Erskine J held that while it was formerly thought to be within the discretion of the judge whether such a witness should be examined, it is now settled that the judge has no right to exclude the witness.

‘He may commit him for the contempt, but he must be examined; and it is then a matter of remark on the value of his testimony that he has wilfully disobeyed the order.’³⁸

While this is the state of the law in Australia and most Common Law jurisdictions today, the ordinary practice of legal representatives is to instruct their witnesses to remain out of court until they are called to give evidence. It is for this reason that the issue of witnesses in court rarely arises today. Certainly, it was the least of Mrs Bardell’s worries over 170 years ago, but perhaps if Mr Pickwick’s counsel had availed himself of an application for an order for the witnesses to remain outside the court, his fortunes would have improved.

Susan Anderson

 

Footnotes

1. Bardell v Pickwick, (1918) 34 LQR 320

2. 34 LQR 320 at 324

3. Moore v Lambeth County Court Registrar [1969] 1 WLR 141; [1969] 1 All ER 782 (CA). The United States Court of Appeals, Second Circuit ruled in the 1950 case of US v Chiarella et al 184 F.2d 903 that the exclusion from the courtroom of witnesses who have not testified is discretionary (at 907): see P Tillers, Wigmore on Evidence, 3^rd Ed, Vol VI, Little Brown and Co, 1983. Sequestration of Witnesses, § 1837 for other jurisdictions which adhere to the same rule.

4. Moore v Lambeth County Court Registrar at 142

5. Ibid

6. [1967] Crim LR 62. It is interesting that Moore v Lambeth County Court Registrar was decided in 1968 and the court did not refer to a case that was directly on point, R v Thompson decided just two years earlier in 1966.

7. Ibid.

8. Apocrypha verses 36-64

9. It seems the possibility that the elders were not looking at the tree, but at the act, was not considered.

10. Domican v The Queen [1992] 173 CLR 555

11. Huddleston v Commonwealth of Virginia 61 S E 2d 276, 279 citing P Tillers, Wigmore on Evidence, 3^rd Ed, Vol VI, Little Brown and Co, 1983, sec 1838 p 352

12. P Tillers, Wigmore on Evidence, 3^rd Ed, Vol VI, Little Brown and Co, 1983, Chapter 63. Sequestration of Witnesses, § 1837 at page 456

13. Comparative Analysis Of The Reform Of Civil Procedure, German Report, P Gottwald, in The International Symposium on Civil Justice in the Era of Globalization, Tokyo, August 1992, Collected Reports at 147

14. Bardell v Pickwick, (1918) 34 LQR 320 at 323. Serjeant Bompas was the real life source of Serjeant Buzfuz who appeared for Mr Pickwick: Matthew at 323.

15. Serjeant Bompus appeared in two of the highlighted cases. In one of them he argued that a witness who remained in court should not be examined because he had heard the evidence of other witnesses. Six years later, in another case, he was equally certain that there was no right for a party to apply to have witnesses ordered out of court.

16. 9 Price 4; 147 ER 2

17. The Attorney General v Bulpit 9 Price 4; 147 ER 2

18. 3 Car. & P 541; 172 ER 538

19. Taylor v Lawson 3 Car. & P 541; 172 ER 538

20. It was common at the time for prominent barristers to enter parliament during the course of their career. Lord Chief Justice Best did so in 1802 and was appointed a judge in 1816.

21. M. & M. 330, 173 ER 1178

22. Gaselee J was the real life source Mr Justice Stareleigh who tried Bardell v Pickwick: Mathew at 323. He was appointed a judge of Common Pleas in 1824 and resigned at the end of Hilary Term in 1837. This would not appear to have any relation to the publication of The Pickwick Papers during 1836 and 1837. Gaselee J, despite being portrayed in a rather less than flattering way by Charles Dickens, was known for this legal knowledge and was respected for his careful work when at the bar: see Foss, E, A biographical Dictionary of the Judges of England, 1066- 1840, London, John Murray, 1870 at 292

23. 4 Car. & P. 585; 172 ER 836

24. This is Thomas Erskine, the fourth son of the celebrated advocate. Mr Erskine was famous in his own right as a barrister for his ability to detect ‘a latent non-suit’ in his opponent’s pleadings: see: Foss, E, A biographical Dictionary of the Judges of England, 1066-1840, London, John Murray, 1870 at 239

25. Beamon v Ellice at 587; 837

26. That witnesses cannot be examined if they remain in court after an order for witnesses to go out.

27. Mr Justice Taunton is said to have been of excellent reputation as a brilliant legal mind: Foss at 650

28. 1839-40 1 Crawford & Dix Reports 142, 145

29. Baron Alderson was one of the judges summoned to assist the House of Lords in the case of Cadell v Palmer (1 CL & Fin 373) which is the case identified in the tradition of the Chancery Bar with the suit of Jarndyce v Jarndyce by Dickens: Manson, E, Builders of Our Law, 2^nd Ed, 1904 at 98. In hearing that case over 2 years he was in the company of Justices Gaselee, Tauton and Littledale mentioned above.

30. 6 Car & P 740; 172 ER 1443

31. Mr Thesiger went on to become Lord Chancellor (Lord Chelmsford). He had planned after his admission to the bar to return to the West Indies to practice. It was his pupil master, Godfrey Sykes, who encouraged him to ‘try his fortune’ in England. This turned out to be good advice. He was Lord Chancellor between Feb 1858 and April 1859 and again July 1866 to February 1868.

32. Cook v Nethercote at 743; 1444

33. Cited in 1 Glifford’s Southwark Election Cases, p 114

34. 7 Car & P 632

3 8 Car & P 297; 173 ER 502

36. Regina v Murphy and Douglas 8 Car & P 297, 307; 173 ER 502, 507

37. 2 M. & Rob. 423; 174 ER 338

38. Ibid

It should be a rare event for most junior counsel, however, there may be times in your career where you must consider how to deal with conflicts with Senior Counsel. These conflicts might arise in various situations.

a. Legal conflicts in giving advices or opinions, in pleadings or in conferences;

b. Conflicts in making forensic decisions, such as calling of witnesses, cross examination or submissions;

c. Conflicts concerning ethical issues.

The approach that a junior will be required to take where a conflict arises with your leader will depend upon the type of conflict that has arisen.

The Role of Junior Counsel

There are two matters that you should bear in mind when briefed with a leader:

a. The primary function of the junior is to assist the leader; and

b. The briefing of a leader does not excuse the junior from complying with his or her own duties and obligations.

Duties

Being briefed as a junior is not a free ride. It is a team effort.

The role of junior counsel is not diminished simply because a leader has been briefed, and nor does it excuse junior counsel from complying with his or her duties and responsibilities to the Court, the client and the opponent.

Simply relying on or following the views of the leader does not automatically discharge your obligations. As junior counsel, you are required to give independent and detailed consideration to the conduct of the client’s case.

In Yates Property Corporation Pty Ltd v Boland (1999) 85 FCR 84, the Full Court of the Federal Court of Australia said, at 111:

“But when a case is a difficult or complex one or when it involves a substantial sum of money, the client or the solicitors will form the view that it requires the attention of two counsel and then leading counsel is retained. That does not mean that the role of junior counsel is diminished. On the contrary, as anyone who has practiced as leading counsel will know, senior counsel places great reliance on junior counsel for all aspects of the preparation of a case for trial. It was quite wrong of junior counsel in those circumstances to act on the assumption that he had no responsibility for any aspect of the advice and decision making involved in bringing such a large case to trial.”

In broad terms, the case involved the valuation of land, and the method by which that valuation should occur. In terms of detailing the obligations of the junior counsel, the Full Court of the Federal Court said:

“It is not possible to escape from the conclusion that [junior counsel] was negligent in the performance of his retainer. He was negligent in thinking that he was under no obligation to advise [the client] about the formulation of its claim. He was negligent in his appreciation of how market value and special value were to be determined. He was negligent in not suggesting either to [the client, the solicitor, or senior counsel] that [the client] was entitled to receive compensation for the work it had performed either as part of the market value of the land or in the assessment of its special value. The reason why [junior counsel] was bound to consider how [the client’s] claim should be formulated and give advice on that issue is that it was plainly foreseeable that if such advice was not given [the client] might suffer loss and, accordingly, it was the function of counsel, both junior and senior, to take care to avoid that loss.”

Ultimately, the High Court overturned the decision finding that there had been no negligence in the circumstances, and that in any event, advocates immunity applied, but the case is useful in highlighting that junior counsel’s role brings with it independent duties and obligations.

Aside from the necessity of complying with his or her own professional and ethical obligations, the independence of mind of a junior can also be a valuable tool in ensuring that points are not missed and / or contrary arguments are addressed.

Whilst your duty is ultimately to the court, and to your client, you should not overlook the importance of professional courtesy, loyalty and the traditional etiquette and customs of the Bar in your relationship with your leader.

Maintaining a good relationship with your leader when dealing with conflicts is essential.

a. If the relationship between the leader and the junior breaks down, the client’s case will probably suffer.

b. The junior is also unlikely to be recommended for work in the future by that leader, or indeed, the solicitor.

An active junior who provides detailed consideration of each aspect of the preparation of a matter for trial serves a valuable role in advancing the client’s case by assisting the leader in identifying the legal and factual strengths and weaknesses in the client’s matter. The client is paying for two minds to be applied to his case, and is entitled to expect that counsel, both senior and junior, will each give consideration to the client’s cause.

Senior Counsel are recognised for their experience and expertise in the law. The shared experience of working with Senior Counsel, the joint preparation and presentation of a client’s case, the mutual evaluation of evidence or points of law, and the opportunity of discussing the tactics and critical decisions called for in a trial presents a junior with a unique learning experience that should not be squandered.

Legal Conflict in Advices / Conferences / Pleadings

A conflict on legal matters can occur in various different contexts:

a. Advices;

b. Conferences;

c. Pleadings

Advices

Rule 76 of the Barrister’s Rule 2004 provided:

“A barrister must give the barrister’s truthful opinion on any matter submitted to the barrister for advice or opinion.”

There is no identical rule in the 2011 Barrister’s Rules, but that does not relieve a junior counsel from their obligation to give only their truthful opinion in any advice.

Your ethical and professional duties to your client, and the administration of justice require that you give your honest or truthful opinion.

But what to do when that puts you in conflict with your leader?

In all but the most exceptional cases, you will give a joint opinion with your leader without dissent. That is generally what you will have been briefed to produce.

In preparing that joint opinion, you will have exchanged and corrected various drafts, and discussed any points of difference.

In most cases, even if you have a separate view to the leader on an important aspect of the advice, if you talk it through with the leader, you will be able to resolve your differences or find a way to incorporate your dissenting view into the advice or opinion.

Where, despite your attempts to resolve any points of disagreement, the joint advice or opinion does not reflect your honest view, you may in those circumstances be under an obligation to produce a separate opinion, or express that you have a differing opinion on the topic in the advice.

It is rare, but I have heard of it being done.

In those exceptional cases where that becomes necessary:

a. Ensure that you inform the leader of your different point of view.

b. Ensure that you inform the leader of your intention to provide a separate opinion;

c. Ensure that you deliver your advice or opinion to your leader before it goes to the solicitor or client to allow the leader time to consider it.

In most cases, it won’t assist the client to have two differing advices on the same subject. In some situations, this might assist the client, but perhaps no more than by highlighting the uncertain nature of the law on a particular topic, or that there are competing views on the topic.

Conferences

What do you do when you meet with your leader, solicitor and client in conference, and the silk is working towards giving their opinion to the client, and you can see that something has been missed or overlooked?

Whilst the temptation might be to immediately jump in and correct the silk, and impress the solicitor with you knowledge of the facts or law, as a general rule, interventions to correct your leader in conference should be avoided.

They have a tendency to create tension, cause embarrassment, and most importantly, to cause the client to lose faith in the leader.

Of course, it might also be the case that the silk is right, and you are the one embarrassed when you seek to intervene, and are corrected in front of the solicitor or client!

What do you do when there is a need to intervene? You will generally be confronted with a few different options:

a. Keep quiet, and let the leader give the incorrect advice, and seek to remedy it after the conference by way of an updated advice or further conference.

i. Sometimes this might be the better option, but it does not fill the client with confidence in the silk, or indeed the solicitor, to receive advice on a matter, and then that afternoon, or perhaps the next day receive advice different to that given in conference.

b. The other option is to intervene.

i. If you choose this option, do it diplomatically. It’s probably best not to jump right in and say “you are wrong”, however so tempting it may be. You will normally be able to find a diplomatic way to deal with interventions at conference.

ii. Where you know that a High Court decision has just come down overruling the case the silk was relying on, you might say “You have identified case X as a potentially important to the client’s case, so I will prepare a review of some of the recent case law to see if there is any recent cases that might cast some doubt on it.”

iii. Where it is a factual matter, consider something like “I understand that you are saying that a critical issue in this case appears to be whether there is any evidence of fact X. I think witness A might have said something on this topic, but I will need to review the evidence. At the moment we are proceeding on the basis there is no evidence of fact X, but let me go away and review this.”

iv. An interjection along those lines should hopefully alert the silk to the fact that something might have been overlooked, and it allows the silk to give their opinion subject to your further investigation.

v. This will mean that if the advice does need to be corrected, it won’t come as such as a surprise to the client, as the potential need for further investigation has been raised.

A modest intervention in conference by flagging that there might be a need for further examination of an issue is generally better than a direct challenge to the silk in the conference.

A direct challenge will result in only two outcomes, you will embarrass the leader, or you will be wrong, and you will be embarrassed.

How to avoid the need for intervention or correction in conference?

The best method of avoiding the need to intervene in conference is to meet with your leader shortly before the conference to discuss the issues that will be raised in conference, what advice might be given, and to exchange views.

Remember, your role is to assist the leader.

Tell the leader what your views are before the conference begins. Don’t be afraid to ask the leader what advice they plan to give in conference. Your leader should welcome this as an opportunity to ensure that they have not overlooked anything, and that any contrary arguments are considered.

Another useful method might be to prepare an agenda for the conference, and provide it to the silk well in advance.

Adopting either or both of these methods should generally avoid the need to intervene in conference.

Pleadings

In most cases where you appear with a leader, it will be the junior’s task to draft the pleadings.

Your task in drafting pleadings for silk to settle is to assist the leader by producing a draft that they are happy with.

Where a difference in opinion as to how pleadings should be drafted occurs between you and your leader, a different approach is required depending upon what the difference is.

Where the difference is merely one of expression, or style, you should do your best to follow the silk’s requirements.

Where the difference is over whether a cause of action or defence is open as a matter of law, or whether sufficient grounds exist to plead fraud or criminality, it is not good enough to simply revert to Senior Counsel.

Even though you might be the junior, your duties and obligations as counsel don’t cease simply because you have a leader.

I think that in most situations, the issue will be capable of resolution by raising the issue with the silk, and discussing it with them. Good communication is the key.

a. Discuss it with your leader;

b. Consider providing alternative paragraphs for the silk to review;

c. If necessary, seek the advice of an Ethics Counsellor.

Where, despite your attempts to resolve the matter, you have a strong view that a party should be joined, or a cause of action pursued, and senior counsel disagree, you may need to alert your solicitor to ensure that you discharge your independent obligation to the client. You will also need to consider exactly what it is you must do to discharge your obligation to the Court.

Ethical Conflicts

Ethical conflicts with Senior Counsel should hopefully never arise.

But, if they do, seek advice from an Ethics Counsellor.

The President of the Bar Association has appointed a number of silks that fulfill the role of Ethics Counsellors.

The Ethics Counsellors are drawn from a wide selection of practice areas.

There is a list of 21 Ethics Counsellors listed on the Bar Association website.

If you need them, use them.

Forensic Decisions

Disagreements concerning forensic decisions fall into a separate category.

A barrister is required to exercise independent forensic judgments called for in the case.

Generally, the client will have retained Senior Counsel because the matter is complex or important. In those circumstances, the client will generally expect that the Senior Counsel will be responsible for making the difficult decisions, and handling the more complex aspects of a trial.

Where the leader is examining witnesses, or cross examining witnesses, decisions that rely on forensic judgments such as:

a. Questions to be asked in cross examinations of witnesses;

b. Style of questioning to be adopted;

c. Witnesses to be called;

d. Submissions to be made on the law or the evidence are generally decisions to be made by the leader.

In some situations, it will be the junior who is on their feet and required to make the necessary forensic decision required at that particular time. Thorough preparation and discussion of forensic matters between counsel in advance of trial is the best method of avoiding conflict on forensic decisions.

Discuss your views on forensic decisions with the leader, but ultimately, where the matter is simply a difference of opinion on how forensic judgments should be exercised, the barrister who is on their feet has the responsibility for making those decisions. Simply because you are the junior does not mean that you are entitled to proceed in a manner that you consider betrays the significant rights and privileges granted to you as a barrister in conducting a trial.

Liam Dollar

An “appeal” is a creation of statue law. The common law did not provide for an “appeal”.

An “appeal” has been defined as a statutory right to invoke the jurisdiction of a higher court to redress an error which occurred in a lower court.² However, as will be seen below, this definition is not suitable to describe the breadth of the jurisdiction conferred on the Court of Appeal when it is asked to determine an appeal against conviction after a trial on indictment.

The nature and the effect of an appeal is to be determined by the terms of the statutory provision conferring the right of appeal.³

When the Criminal Code came into effect on and from 1^st January 1901 little was provided in the way of an appeal. Section 668 of the Code allowed counsel for an accused tried on indictment to apply “before verdict” for the trial court to reserve any question of law which had arisen at the trial for the Supreme Court’s consideration.

By s.669 of the Code the question reserved had to be heard and determined by the Full Court at Brisbane. The Court was empowered to, inter alia, affirm the judgment given at trial or set aside the verdict and judgment and order that a verdict of not guilty or other appropriate verdict be entered. However, s.671 of the Code stated that a conviction could not be set aside upon the ground of the improper admission of evidence if it appeared to the Full Court that the evidence was merely of a “formal character and not material”. Section 671 also stated that a conviction could not be set aside upon “the ground of the improper admission of evidence adduced for the defence”.

It is often said in the present time⁴ that an accused is ordinarily bound by the way his counsel conducts the defence case. However, in 1901 he was statutorily bound very markedly in one important respect.

By the Criminal Code Amendment Act 1913 (Q), sections 668 to 672 were repealed. New sections, numbered 668 to 672A, were inserted in Chapter 67 of the Code. All references to the Supreme Court became references to the Court of Criminal Appeal. The amended provisions reflected the terms of the Criminal Appeal Act 1907 (UK) which had been enacted in England on 28 August 1907. The amended provisions were also adopted by the other States of Australia and in New Zealand and Canada. They have often been referred to as the “common form” appeal provisions.⁵ However, with the enactment of the Criminal Procedure Act 2009 (Vic) these appeal provisions are no longer as common as they were previously.

The new s.668B continued to provide that the court of trial might reserve a question of law which arose at the trial for the consideration of the Court of Criminal Appeal. The new s.668D(1) provided that a person convicted on indictment might appeal against his conviction on any ground which involved a question of law alone and, with leave of the Court of Appeal or upon the certificate of the trial judge that the case was fit for appeal against conviction, on any ground of appeal which involved a question of fact alone, or a question of mixed law and fact.

The new s.668E relevantly provided:

“668E Determination of appeal in ordinary cases

(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.” (My emphasis)

This provision obliged the Court of Criminal Appeal, now the Court of Appeal, to set aside a conviction in any of the three circumstances mentioned. The third circumstance is that on any other ground whatsoever there was a “miscarriage of justice”. This expression is not to be given a narrow meaning.⁶ The expression has conferred on the Court the function of undertaking an independent judgment on the facts of the case.⁷ If an appellant can “show a miscarriage of justice that is sufficient. That is the greatest innovation made by the Act, and to lose sight of it is to miss the point of the legislative advance”.⁸ One of the earliest appeals commenced after the enactment of the Criminal Appeal Act 1907⁹ concerned a solicitor who was gaoled for misappropriation from a trust fund. He was one of three trustees. On appeal he sought leave to adduce evidence from one of the other trustees who happened to be a relative of the beneficiary. The trustee concerned was not called at the trial, defence counsel apparently of the belief that the prosecution would call him to testify. The witness could have testified that he knew that the appellant had retained some trust funds but that the witness had consented to the appellant doing so. Perhaps this evidence would have raised honest claim of right. However, the judgment of the Lord Chief Justice was simply this: “Persons who could have been called at the trial cannot be called in this Court to make out a new case”. An argument can be made, if the report of the judgment is in fact complete, that the English Court of Criminal Appeal failed to appreciate at first the change the Criminal Appeal Act had wrought.

The circumstances which can give rise to a miscarriage of justice are “as wide as the potential for error”.¹⁰ Sometimes evidence available at the time of a trial was not led at the trial when it arguably should have been. Sometimes evidence comes to light only after a trial has ended which, had it been available at trial, may have affected the verdict. In circumstances like these a miscarriage of justice may occur if the conviction, obtained after an otherwise regularly conducted trial, is not set aside by the Court of Appeal.

Thus the appeal provided for by s.668E(1) of the Code is not one confined to redressing an error which occurred below. In Eastman, McHugh J put forward four different meanings for “appeal”. It is the third of these meanings which most accurately describes the nature of the appeal contemplated by s.668E(1), namely, “an appeal by way of re-hearing on the evidence before the trial court and such further evidence as the appellate court admits pursuant to a statutory power to do so”.¹¹

The relevant statutory power is to be found in section 671B(1)(c) of the Code. It permits the Court “if it thinks it necessary or expedient in the interests of justice” to “receive the evidence if tendered, of any witness (including the appellant) who is a competent … witness”.

Consistently with the phrase “if it thinks it necessary or expedient”, Rule 108 of the Criminal Practice Rules 1999 provides:

108 Application for leave to adduce evidence

(1) If an appellant wants to adduce evidence at the hearing of the appeal, the appellant must apply to the court for leave to adduce evidence.

(2) An application for leave to adduce evidence must be accompanied by an affidavit of the witness giving or producing the evidence.

(3) The affidavit must state the following—

(a) for evidence that is to be given by the witness—what the evidence is;

(b) for evidence that is to be produced by the witness—the nature of the evidence.

The points to note are that: additional evidence may be adduced only with the leave of the Court; and, that a proof of the evidence, in the form of an affidavit, must be provided setting out the evidence the witness can give. The “Form 38 — Application for leave to adduce evidence” also requires the appellant to state why the witness was not called at the trial. Paragraph 33(2) of the Supreme Court of Queensland Practice Direction 2 of 2010 requires the Form 38 and the affidavit material to be filed in the Court Registry at least 28 days prior to the date on which the Court is to hear the appeal.

In formulating the Notice of Appeal in any case where it is sought to adduce additional evidence it is desirable to draft the ground of appeal as follows: “A miscarriage of justice occurred because …”. Drafting the ground this way directs attention to the matter that s.668E(1) requires to be established in order for the appeal to succeed.

If counsel for an appellant seeks to adduce additional evidence he should confine the application to one directed towards the adduction of admissible evidence. Inadmissible evidence does not lose its character as such simply because it is sought to be adduced on appeal.¹²

At the hearing of the appeal counsel for the party seeking to rely on any additional evidence will read the affidavits of those witnesses to be relied on. Generally the affidavits are regarded as the witnesses’ evidence in chief. Counsel for the opposite interest, invariably the prosecution, will then indicate to the Court whether he wishes to cross-examine any of the deponents. If he says that he does, each of the witnesses he wishes to cross-examine is called in turn. When intending to rely on additional evidence it is obviously desirable that, prior to the day of the hearing, steps be taken to ascertain whether the other side wishes to cross-examine any of the witnesses. If this step is taken arrangements can be made to ensure that those witnesses are at court on the day.

The Court is entitled to receive evidence which contradicts or weakens the additional evidence.¹³ Counsel will know before the day of the hearing whether the other side intends to adduce any evidence in reply. Interestingly, the Criminal Practice Rules have nothing to say about the respondent adducing evidence at a hearing. The Form 38 only appears to apply to an appellant. Notwithstanding all this, the Court routinely permits the respondent’s counsel to adduce evidence if it is relevant to the issues raised by the appellant’s evidence.

Paragraphs 11 and 33 of Practice Direction 2 of 2010 impose obligations on “a party” who wishes to adduce additional evidence to take certain steps, some of which are referred to at paragraph 15 above. However, it is unlikely that a respondent will be in a position to file affidavit material until after he has seen the appellant’s material. Only in that way can he file material that is responsive to the evidence the appellant seeks to adduce.

The word “additional”, which has been used so far, masks a very important distinction that is drawn between items of evidence adduced or sought to be adduced on appeal.

Any counsel wishing to adduce additional evidence needs to be alert to the distinction drawn between “new” evidence and “fresh” evidence. In short, new evidence is old evidence while fresh evidence is new evidence. The distinction is important because of the way appellate courts are required to treat each class of evidence.

Fresh evidence is evidence that did not exist at the time of the trial or, if it did, was not available to the accused through the exercise of reasonable diligence. New evidence is evidence that was available at the time of the trial and which the accused knew about but chose not to deploy or could have discovered by the time of trial with the exercise of reasonable diligence.¹⁴

Considerable latitude is accorded to an accused in determining what evidence reasonable diligence could have discovered.¹⁵

If evidence is regarded as fresh evidence then, subject to considerations of reliability and cogency, the Court of Appeal will set aside a conviction if it thinks that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.¹⁶

If evidence is regarded only as new evidence then, subject to considerations of reliability and cogency, the Court of Appeal will set aside a conviction only if it is satisfied that the appellant should not have been convicted, that is, if the evidence shows that the appellant is innocent or if it raises a reasonable doubt about guilt.¹⁷

Whether the evidence is to be categorised as fresh or new, it must be apparently credible, that is, capable of belief, and cogent.¹⁸ The expression “cogent” is defined in the Australian Oxford Dictionary as “forcible, convincing”. Examples of cases where evidence regarded as “fresh” was considered to be sufficiently cogent to warrant the setting aside of convictions include R v PAF¹⁹ and R v Park.²⁰ An example of a case where “new” evidence was not found to be sufficiently cogent to warrant the setting aside of a conviction can be found in R v PAK.²¹

A miscarriage of justice can be occasioned by the conduct of counsel.²² In recent years complaints that a barrister’s conduct has occasioned a miscarriage have arisen more frequently than was the case in the past.²³ There are three well known judgments concerning alleged miscarriages due to counsel’s conduct.²⁴ 

In TKWJ and Nudd the respective defence counsel furnished affidavits seeking to explain why they pursued the courses they did.²⁵ No such affidavits were tendered in Ali. Yet the outcome in each case was the same; each appeal was dismissed.

Practitioners intending to assert that a miscarriage of justice was occasioned by another counsel’s conduct may be inclined to seek to adduce evidence in the Court of Appeal to support the claim. However, appellate counsel (and those counsel asked to provide an affidavit about their conduct of a defence case) should be alive to the consideration that a determination about whether a miscarriage is demonstrated is to be decided objectively. Generally speaking, if the course followed by defence counsel is explicable on the basis that it could have resulted in a forensic advantage to the defence case then a miscarriage will not be able to be shown.²⁶ If an objective assessment of counsel’s conduct is to be made there may well be no point in adducing affidavit material.

R v PAK²⁷ provides a recent example of a Court of Appeal decision where the appeal was resolved by an objective examination of counsel’s conduct.

However, in Nudd²⁸ Gleeson CJ observed that there will arise, from time to time, cases where it is relevant for an appellate court to know why counsel took a particular course of action. R v Upson²⁹ provides a good example of this.

Clearly, careful judgment is called for by both the counsel who has instructions to complain about the way a trial was conducted and by counsel (the prosecutor) who is to defend the conviction. It would seem fair to say that counsel for an appellant needs to be confident that any evidence his client can give concerning the way the defence counsel conducted the case is not liable to be contradicted by signed and dated instructions the appellant provided at trial. Counsel for the respondent must wrestle with the dilemma³⁰ of whether the appellant’s complaint will be strengthened or weakened by seeking affidavit evidence from the defence lawyers. An example of a case where both sides adduced evidence on appeal which, on the one hand was harmful to the appellant and, on the other, was not of great assistance to the respondent is R v Lumley.³¹ Towards the other end of the spectrum is Upson, where trial counsel and solicitor were able to comprehensively answer the appellant’s allegations about how the defence was conducted.

M.J. Copley S.C.

Footnotes

1.  Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225.
2.  Eastman v The Queen (2000) 203 CLR 1 at 33 [104].
3.  Cavanough at 225.
4.  Nudd v R (2006) 225 ALR 161 at 164[9]; TKWJ v The Queen (2002) 212 CLR 124 at 147[74].
5.  Weiss v The Queen (2005) 224 CLR 300 at 309[21].
6.  Eastman at 105 [315]; Nudd at 164 [7] and 170 [24].
7.  Ratten v The Queen (1974) 131 CLR 510 at 515.
8.  Hargan v The King (1919) 27 CLR 13 at 23.
9.  Soper 1 Cr App R 63.
10.  Nudd at 164[7].
11. At 40 [130].
12.  Ratten at 514; R v Martindale [2009] QCA 24 at [547].
13.  Ratten at 518.
14.  Lawless v The Queen (1970) 142 CLR 659 at 669.
15.  Lawless at 669; Ratten at 517.
16.  Mickelberg v The Queen (1989) 167 CLR 259 at 213; Gallagher v The Queen (1986) 160 CLR 392 at 399 and 402; R v Stafford [2009] QCA 407 at [50].
17.  Ratten at 517 — 518; Lawless at 674 — 676; Stafford at [50].
18.  Ratten at 518.
19. [2007] QCA 414.
20. [2008] QCA 383.
21. [2010] QCA 187.
22.  TKWJ at 133 [28]; 147[74]; 158[107].
23.  Nudd at 175[47].
24.  TKWJ, Nudd, and Ali v The Queen (2005) 214 ALR 1.
25.  TKWJ at 140 — 141 [57]; Nudd at 197[50].
26.  TKWJ at 131[17]; 135[33]; 150 [81]; 158 [108]; Ali at 4[7]; 7[25]; 22[99].
27. [2010] QCA 187.
28. At 165 [10].
29. [2011] QCA 196.
30. Informed by considerations pertinent to the prosecutorial duty of disclosure.
31. [2004] QCA 120 at [69] and [70].

Building Information

The design was selected in an architectural competition in 2007. The architects are Architectus with Guymer Bailey (both Brisbane firms).

The managing contractor is Lend Lease and construction started in September 2008.

The project budget is $570 million and it is directly funded by the Queensland Government. The project will be delivered on budget.

The building floor space is approx 60,000 m2. This is almost twice the size of the existing Supreme Court and District Court buildings.

A new public square of approximately 2,500 m2 has been created between the Supreme Court and District Court and the Brisbane Magistrates Court. The square includes a grassed area, paving, trees and café.

The building has nineteen floors arranged as follows:

• Two basement floors for parking, cells, storage and plant. The basements extend under the public square.

• Ground, level 1 and level 2 for administration, registry, jury assembly and vulnerable witness.

• Floors 3 to 9 are court floors. On opening there will be thirty-nine courtrooms — Banco Court, Court of Appeal, twenty-four criminal courts and thirteen civil courts.

• Level 10 is fitted out initially with mediation rooms and State Reporting Bureau accommodation and can be converted into additional courtrooms to accommodate future expansion. This would take the total number of courtrooms to forty-five. The current court buildings have thirty two courtrooms.

• Level 12 and part of level 11 are occupied by the Supreme Court Library.

• Floors 13 to 16 are Judges’ chambers with thirty-four chambers for each court. The existing Supreme Court and District Court have a total of forty-four chambers.

Design Features

The architectural vision is an open accessible building with multiple layers between inside and outside to provide light, privacy and protection from sunlight. Particular features are:

• All courtrooms have large external glass walls with direct light penetration.

• All public waiting areas have direct light with extensive views.

• A double skin glass façade with fritting on the outer layer and external, computer-controlled blinds for sun shading, and with internal blinds for glare control.

• Raised floor with displacement air-conditioning, fire sprinklers and data and electrical cabling underfloor.

• Wooden floors in all courtrooms and public areas with ceilings formed by the underside of the structural slab for the floor above.

• A secure public garden on the Roma Street side of building.

• Double height courtrooms for the Banco Court and the Court of Appeal.

• Internal use of glass walls, off-form concrete and hoop pine wall panelling.

Functional Features

The main functional features of the building are:

• All trial courtrooms are available for use by either the Supreme Court or the District Court. Large courtroom size is 190 m2. Standard courtroom size is 160 m2 to 175 m2.

• Each court floor has a standard floor plan of four criminal and two civil courtrooms per floor.

• Separate lifts for empanelled juries, judges, public, persons in custody, and vulnerable witnesses (total of seventeen lifts) with emphasis on vertical transportation to access courts rather than movement along corridors.

• A dedicated jury assembly area with lounge and dining rooms and a dedicated jury room of 32 m2 for each criminal courtroom. All jury rooms have external windows.

• Person in custody area with forty cells and natural light from skylights. One holding cell for each criminal courtroom on court floors.

• All vehicle access to the building is through existing Brisbane Magistrates Court’s entrance which maintains long uninterrupted pedestrian footpaths around the building.

Technological Features

The building has a number of features to assist court proceedings including:

• All courtrooms are able to display digital evidence, with seventeen of those able to take external video witnesses and fourteen able to be set-up for full e-trials (double the capacity of existing buildings).

• All jury rooms can display digital evidence.

• A vulnerable witness suite with four audio visual evidence giving rooms.

• Wi-fi on all floors.

• In-court and remote interpreter technology is installed.

Environmental Features

The environmental features of the building are:

• Displacement air-conditioning,

• Natural light in all public areas and courtrooms,

• Low energy lighting with sunlight, time and movement sensors,

• Double skin façade with computer controlled sun blinds,

• Rainwater harvesting,

• Solar cells on roof (although main power supply is still grid),

Public Art and Legal Heritage Museum

The building includes the major artworks from the existing buildings and three major new artworks:

• The three major new artworks are :
• Banco Court wall painting by Sally Gabori ( an indigenous artist from Gulf of Carpentaria)
• Foyer ceiling- large on-ceiling painting by Gemma Smith ( Brisbane artist)
• Public square arc wall- a major installation by Yukio Kusama (internationally known Japanese artist );
• Existing major judicial portraits which are currently in the Banco Court have been reframed and restored, and will be displayed in a more accessible public gallery outside the ceremonial courtroom;
• The large Daws mural on the ground floor of the existing building will also be displayed adjacent to the ceremonial court;
• The well known Themis statue will be repositioned at the Roma Street end of the new building;
• A legal heritage museum to display the Supreme Court Library collection of historical artefacts and host visiting legal history artefacts will be established on the ground floor.

Details of New Artworks

The three major new artworks were selected on the quality of the artwork and their contribution to the building and the city. The works are not intended to include any direct references to themes of justice or the law.

The artists selected are three women artists spanning a range of ages and cultures. Two of the artists — Sally Gabori and Yukio Kusama — are internationally known and one, Gemma Smith, is a young local artist.

Banco Court Wall

Artwork Dibirdib i Country

Artist: Mirdidingkingathi Juwarnda Sally Gabori

About the Artist

Sally Gabori was born around 1924 on Bentinck Island in the Gulf of Carpentaria. In the late 1940’s the island suffered a severe drought and high tides. The low lying island became uninhabitable and the people were moved to Mornington Island. Sally Gabori is one of the last remaining speakers of the Kayardild language of Bentinck Island.

Sally Gabori began painting in 2005. Her work is a depiction of her ancestral country, the law of that land and growing up on Bentinck Island.

The people of Bentinck Island had a simple visual art tradition of body decoration and string crafts. The lack of a strong visual traditional has allowed Sally Gabori to develop her own style that looks deceptively abstract but captures the shifting light and colours of her “story places”- locales on Bentinck Island associated with her family.

She is represented in the National Gallery of Australia, Queensland Art Gallery, National Gallery of Victoria, Musee du Quai Branly Paris and The Aboriginal Art Museum Utrecht Holland. She has exhibited work individually and in group exhibitions throughout Australia and in London and South Korea.

About the Artwork

The painting brings together four beloved places in Sally Gabori’s life: the fig trees near the beach where her mother Mara was born (the grey shape on the left hand side), the adjoining sea country where her brother used to hunt for dugong and where her late warrior and hunter husband fought for women, the beach at Kalthuriy where her mother’s father was born (the yellow shape in the top right) and the billabong at Nyinyilki with its waterlilies and unfailing supply of fresh water (the black and white shape on the right hand side).

The original painting was translated to the wall by Hilary Jackman and Jeph Neale who, in preparation for the work, travelled to Mornington Island to discuss the work with Sally and study her painting technique.

Foyer Ceiling

Artwork Untitled

Artist: Gemma Smith

About the Artist

Gemma Smith was a Brisbane artist at the time of commissioning and painting of the ceiling. In mid 2012 she moved to the United States. She was a student at Queensland University of Technology and Sydney College of the Arts. Her artwork has been exhibited in significant State and national venues such as the Gallery of Modern Art (Queensland), Heide Museum of Modern Art (Victoria) and the Museum of Contemporary Art (Sydney). Gemma’s work will feature as part of a forthcoming exhibition of young Australian abstract artists at the Australian Embassy, Washington, USA.

About the Artwork

The ceiling painting is an abstract study in perspective, space and colour. It unveils the illusive nature of space and viewpoint as it is approached from the main entry way of the Courts. In this work, the interlocking yet fragmented geometry contains both a sense of connectedness and openness.

The hand painted effect on some of the panels is a deliberate attempt to translate the appearance of small scale brushstrokes to the larger scale.

The work was hand painted on the ceiling by Gemma and two assistants .

Public Square Arc Wall

Artwork Thousands of Eyes

Artist: Yukio Kusama

About the Artist

Kusama is a Japanese artist who is arguably one of the most well known women artists throughout the world in the last twenty five years.

She is celebrated as a living legend the world over and due to the raw appeal of her visual language, enjoys great popularity with audiences from all walks of life. She is now, in her ‘80s, actively achieving the pinnacles of a career that has spanned six decades. She has had a recent major international exhibition at the Pompidou Centre in Paris (2011) and at present has a major retrospective of her work in the Tate Modern Gallery London. She has major installations in many world cities including Paris and Tokyo. She has exhibited in all the major international galleries, on numerous occasions at the Queensland Art Gallery/Gallery of Modern Art, and at the Museum of Contemporary Art in Sydney.

About the Artwork

This is the first permanent public artwork by Kusama in Australia.

Like much of her artwork, it uses symbols that can communicate across cultures. The disembodied eye featured in Thousands of Eyes is a symbol that appears in many cultures throughout time and is seen, for example, in ancient Egyptian hieroglyphics and in contemporary art. It is suggestive not only of a watchful public but also omnipotence, enlightenment and inspiration. Kusama reminds us that it is through the experience of sight that our humanity and our empathy for others are instigated and negotiated.

The realisation of the Kusama artwork was complex. The artist’s hand drawn Thousands of Eyes ink drawing was made for Brisbane’s new courts in her Tokyo studio. It required translation into materials and forms that are durable in the public realm and cope with the problems of installation across the unusual sloping arc wall.

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Video: Tour of Justice

The Chief Justice recently gave a tour of the new Supreme Court. A video from the tour can be accessed via the Courier Mail website here.

I write this paper based on the experience gained from over 40 years of practice, with elocution and public speaking training as a youth and with a life time’s history of engaging in public speaking, not only in Court, but in theatre productions, radio and television and addressing large gatherings.

I intend to leave to others, discussion concerning aspects of advocacy that more readily come to mind and instead deal with advocacy in the sense of our ability to effectively communicate.

The purpose of this paper is to identify some areas where lack of clarity of the written or spoken word, can let us down and to suggest how we can improve our presentation.

When we first learn to speak, we quickly find out that the more articulate our words, the more likely is the response going to match what we say. Conversely, the less intelligible our utterances, the less likely are we to be rewarded in any responsive way for what we have said. This may be why most babies learn to say “no” before “yes”.

Why do some people take for granted in our profession, that clarity of thought or expression comes automatically and does not require any conscious effort on their part?

The day of the Internet has brought with it an expectation of instant gratification. It has also brought a perception that a letter will be answered immediately.

Unlike in my early days of practice, before dictaphones or tape recorders, when a letter was received, an answer would be dictated to shorthand later that day or the next, the typed letter would be checked and amended, or signed. The norm these days is for an email to be sent direct to our computer, with the expectation that we will interrupt whatever we are doing, in order to answer it immediately.

Not so many years back, a solicitor, now magistrate, used to send me briefs with a handwritten “post it” note with words to the effect that he did not want an answer from me prior to a particular date. His explanation for this rather unusual request, was that by briefing me, he could gladly file the matter away off his desk for a week or two. The last thing he wanted, was an advice from me within a couple of days, which would in turn require him to once again wrestle with the matter.

This solicitor did not use emails and did not believe in them. All correspondence to or from him, was by “snail mail”. Emails were not read. He did not have an email address although each of his partners did.

In fact, his attitude has much to recommend itself because when I received a brief from him, it was complete. It was not littered with typographical errors, was well thought out and tended to identify the issues.

My master with whom I did my articles, used to emphasise to his trainees that a lawyer who is in a hurry doesn’t know his business.

For many years I could not understand what he meant. I thought it was an entreaty to go slow, whereas in practice he was very efficient and responded quickly to any work that came across his desk.

I now believe he was talking about the need to take one’s time in composing correspondence and in checking it for completeness and accuracy.

A quick three line answer by email, may not do you or your client justice because it is composed in haste, often without the mind being completely devoted to the subject of the response. How often have we sent off something short and prompt, only to later return to the topic and despair that what we said was ill considered or insufficient? Rather, were we to compose our answer when our mind was directed solely to that matter, I am sure that the response would be far more complete.

No doubt most readers will have heard it suggested that emails should be gathered no more than two or three times per day, as a means of reducing the short sharp, but incomplete answer. Many businesses teach their staff to regard emails as being the same as any other letter and retrieve them at the start and end of each day only and to respond to them in turn in the order that they were received.

A former colleague used to say that if a client does not understand his lawyer’s advice, the fault lies with the lawyer. He used to write his opinions as if he was speaking to the client, irrespective of the relative competence or experience of the instructing solicitor. In this way, his advices could contain multi syllable words to a professional, or very short, simple phrases, sometimes containing vernacular terms bordering on slang, to another.

Rarely did his client not understand what he was saying. I suspect that some of his Advices taught his instructing solicitors a few new words.

He was a master of advocacy in the sense that he expressed himself in writing or orally, in the clearest of terms.

When acting for a motorist who was sued for negligence for not swerving to avoid an out of control vehicle, his response was short, but complete.

After extensive argument by counsel for the Plaintiff he stood up and said,

“Unfortunately my client did not have the opportunity to take counsel’s advice as to what he should or should not do, so he stayed on his side of the road.”

That was his argument, summed up in one sentence. It is advocacy at its best.

He was a master at addressing a jury in language which they could understand and relate to.

Advocacy extends to being articulate in the spoken word. What I mean by this is that there is no use in preparing brilliant arguments if no one can hear or understand us. On any day in the Courts of any State, I suggest, you can hear the best of speakers, and regrettably, the worst of them. The poorly trained public speaker battles to be heard and struggles to be understood. That person is at a singular disadvantage over their opponent whose every syllable is crystal clear. Does anyone think that judges enjoy asking counsel to speak up because they can’t hear them?

It surprises me that there does not seem to be enough effort put into training future advocates in the art of public speaking. Mind you, I make the same criticism of many ministers of religion.

At least once a week, they traipse up into their pulpit, preach for what seems an eternity and step down, without many of the congregation being any the wiser as to what they were trying to say, because they could not be heard or understood. Not being heard is as bad as not being understood.

Repetition does not increase your chances of success. If the Court does not accept your argument the first time round, why is it more likely to accept it if you repeat yourself? Preparation and presentation of your address should ensure that you make your points, without repeating yourself.

Addressing a jury requires quite different skills to addressing a judge. When one addresses a jury there is little interaction which allows you to see whether they are understanding you or not. Occasionally, a rhetorical question will elicit some shaking or nodding of the head but that is the best you can hope for. Otherwise you must look for body language from the jurors as a possible guide to their response to your arguments.

Most judges are comfortable in engaging in dialogue with counsel. By dialogue I am referring to both the judge and counsel absorbing what the other has said and responding to it. A good judge is able to indicate to counsel what their tentative view is on a particular subject, allowing competent counsel to argue that point, or perhaps dissect it to show why the judge’s preliminary view is not the best view. Counsel who do their best to discourage dialogue with the judge, lose an opportunity to hear what the judge is thinking, rather than finding out when they read the judgment, that perhaps a moment’s silence during the address, might have been to their great advantage.

So, therefore, this paper on advocacy relates especially to clarity of thought in our written word, being articulate on what we say and how we say it and using our voice effectively, according to the circumstances.

Cross examination of a young widow in a loud threatening tone, will lose one any possible sympathy, whereas gentle cross examination in which the tone might only alter in the face of deliberate obstructiveness or obtuseness, is less likely to lose sympathy.

And think for a moment of the skills that you would need to effectively cross examine a child, without putting everyone off side with your client, for subjecting the witness to your questions.

Cross examination of the leader of a bikie gang on the other hand, is unlikely to succeed if he is given any reason to think that the cross examiner is soft and intimidated by him.

The skill of advocacy includes developing techniques which allow us to adapt to the various circumstances in which we speak as barristers. Cross examination technique has to alter according to the circumstances, so too the manner of our presentation.

Imagine a brothel owner, charged with living off the earnings of prostitution, being asked as the first question, to define his understanding of the meaning of the word “pimp” and when he gives the answer, being then asked if, on that definition, he was a pimp.

Those two questions just did not occur spontaneously. They were thought out, discussed, altered etc over several days. They set the tone for cross examination designed both to demonstrate that this witness was a brothel owner but also to demonstrate that he knew what he was doing was illegal but continued to engage in his unlawful activity.

The extravagant flourish and bending to the waist of counsel who has just been overruled, accompanied by “If the Court pleases”, is quite inappropriate and outdated theatrical behaviour and does nothing but draw negative attention to the performer.

On the other hand, counsel who simply accepts the ruling with a polite nod and then moves on, is not engaging in pure theatre and in so doing, is not allowing himself or herself to be distracted from their task, for the momentary perceived reward of drawing attention to themselves.

I would also ask you to consider the street side interviews that many lawyers engage in, when involved in litigation of public interest. We see very good, brief and engaging comments, which do not transgress our rules, but I venture to suggest that we see a great deal more of others who feel that they have to say something to appease the journalist, but in their haste, embarrass themselves, not to mention their client.

There are times where, when cross examining, or addressing a judge, there is no harm in smiling. If the judge corrects you, rather than a scowl, a polite smile will not lose you any points.

If a witness gets the better of you, instead of being belligerent, there are occasions where a smile and “quite so” are a better response.

Training in the art of public speaking is a great investment when preparing for life at the bar. Engaging in the performing arts as an actor encourages us to project our voice. To do so we do not need to shout, nor to speak loudly. But the art of projecting one’s voice requires training and practice so that the person furthest from you can still hear you clearly. In such a case the judge is likely to also hear you clearly.

Do not think that microphones in the Court are there to hide incompetence at public speaking. More often than not they are there for the sole purpose of recording to transcript what has been said. Thus they do not provide any assistance to the incompetent mumbler. And speaking into a microphone intended as an aid in such circumstances, takes a particular skill in itself. How far does one stand from the microphone, how does one adjust it for one’s height, does one speak into it, across it or simply ignore it? These are all relevant questions which training will allow us to answer without thinking, when the need arises.

And finally, might I suggest that we can all learn from reading transcripts of our address to a Court. We can all improve at allowing the judge to speak without interruption and in turn, the judge might then permit us to speak without constantly interrupting us in mid sentence.

Many judges will interrupt, if for no other reason than to indicate that they understand a point, they disagree with it, or that it is not necessary for one to address on it. One must listen for such cues as to continue to address on a point when the judge has just told you there is no need, is a waste of time and demonstrates that you are not listening.

‘Over speaking’ is a common fault when addressing a Court. A transcript is the quickest way of seeing this reflected in front of our eyes. I have the horrors when I read how often we interrupt or are interrupted in mid sentence even though I strive to avoid doing so. I know that in normal conversation we tend to do so, or at least, we tend to unless it is our spouse who we would be interrupting. But if the judge interrupts us, how many of us have the self discipline to remain quiet until we are sure they have said what they want to, before embarking on an answer?

And these comments are not confined to addressing the Court. Cross examination is an area where counsel tend to interrupt, if for no other reason than to stop an unresponsive answer. But if the witness interrupts us, we are likely to be unforgiving of them.

When cross examining, if you are silent whilst the witness is answering, you improve your chances of absorbing what they have said. If you are properly prepared, your next question can be responsive to that answer. If you are not, your cross examination quickly loses its way, for if there is some gem that the witness reveals in their answer, you are likely to overlook or forget it, if you are already thinking of your next question. To take advantage of an unexpected answer, you must be able to hear and absorb the answer when it is given and be able to spontaneously adjust your cross examination.

This is not said to encourage advocates to ask the Court to allow them to finish what they were saying without interruption. I have heard this said in an appeal Court on one occasion when a very inexperienced barrister appeared there, for the first and, I hope, the last time. Thereafter the judges sat mute, not saying one word.

When we got up to respond, the resumption of dialogue was instantaneous and gave immediate insight into what the judges were thinking. My opponents lost an opportunity to improve their chances of success.

I know that it is easier to think on our feet if we can follow our pre-prepared train of thought. There is a skill to engaging in dialogue with the Court, a skill which I suggest is a necessary part of our Advocate’s tools. It comes with training.

That skill requires that we are adaptable to the direction the Court wants to take and be sufficiently prepared that we don’t say, “I will deal with that issue shortly”, but rather, “As your honour has raised that point, I will deal with it now”. Which answer do you think will give you more points for Advocacy?

For those aspiring to practice at the bar, learning the art of public speaking will pay long term dividends as it will improve your chances of being heard, and, thereby, the chances of your argument being accepted. When addressing a Court, we should welcome an interruption, deal with it, there and then and be prepared to and able to change the order of the subjects we were going to address on, so as to better engage in dialogue.

In this sense, the art of Advocacy encourages us to continually improve our ability to communicate effectively and efficiently.

To conclude therefore, I suggest that every advocate can improve his or her skills in communicating, be it by the written word or the oral presentation to a Court or Tribunal. As my old teacher entreated, don’t be in a hurry to respond, either in writing or when on our feet, but at the same time, be efficient in the completion of our task.

 

Brian Morgan 

INTRODUCTION

The purpose of this paper is to introduce a new method of legal training for law students. The objective is to demonstrate how the techniques of the actor, director and theatrical instructor, may be applied to the training of future advocates. It will look at ways the law is taught today and then assess if the principles of the actor may help close any ‘gaps’ which exist in legal training.

To do this, the paper will first establish what advocacy means. It will then point out any similarities between the actor and the advocate, and more importantly, any differences. The focus will then turn to some of the techniques used today in legal training such as role playing, simulation and finally the most widely used and historical method of legal training, the moot. It will then apply some acting techniques such as the exercises in relaxation, essential before any performance. This paper will pay particular attention to the use of improvisation to develop specific aspects of the performance such as eye contact, speech and the actor’s attitude to the audience, and finally how the actor should analyse a scene of a play to its very basic level of understanding in order to gain the most out of the performance. The paper will conclude with an evaluation of the applicability of these theatrical techniques and their benefit, if any, to; not only the mooters and legal students in general, but to the practicing advocates these students will become.

PART ONE- THE ADVOCATE AND THE ACTOR

What is an advocate?

By one definition, advocacy is not a science but an art. In fact it is the art of presenting, and presenting before an audience. In law that is the court, and the court may include a jury.

“Advocacy    The art of conducting or presenting before a court. An advocate’s work comprises argument or making speeches (called addressing), questioning witnesses, and preparation and planing these tasks.”¹

Even at first glance, the role of the advocate bears similarity with theatre. The theatre, too, is the art of presenting, and the person presenting is an actor in that theatre. Like an actor, an advocate makes argument and speeches before an audience. This should be the first hint that there may be some suggestion of a deeper similarity between the two disciplines. It then may follow that some of the techniques used in the training of the art of the theatre may also be used in the training of the art of the advocate. Both deal with presentation and conduct before an audience. It is the aspect of presentation that this paper will focus on, as above all else “the techniques of the theatre are the techniques of communication.” ²

Similarities

This section will consider the actual processes involved in both the actor and the advocate.

When a playwright puts words onto a paper it creates a story of some ‘happening’. The actor takes those written words, lifts them from the page, and puts them into physical action before a gathering of people (the interested third party). It is the job of the actor to then perform these ‘invented’ actions so well that the interested third party will believe they are not invention but real life events, happening at that moment on the stage. In the course of the play, there may be other actors that work to defeat the main actor in some purpose the actor has undertaken, within the story line of the written words.³ The conclusion of the play will be the actor’s victory or defeat. “[M]any Greek plays are little more then staged debates”.⁴

While this is a simplification of what really happens it does serve to illustrate the objectives of the performance, namely, (1) to entertain and to hold the attention of the audience; and (2) to inform what is happening to the actors on stage within the confines of the play.⁵

When a client comes to the advocate they tell a story, which involves a request or question on some point of law. The advocate then presents that story, as a plea for some judicial action before an interested third party, either a judge or a judge and a jury. During the course of the presentation, as in the theatre, there is an opposing side to the story. Following this analogy to its logical conclusion, the conclusion of the court room “play” will be the victory or defeat of the advocate as to whether he is granted the requested action or not.

“The condition of our survival [victory] in any but the meagerest existence is our willingness to accommodate ourselves to the conflicting interests of others, to learn (sp) to live in a social world.” (Learned Hand J )⁶

Like the actor, the advocate has informed the audience of some otherwise unknown information. Whether this has “entertained” the judge or jury is not a matter for this paper. “Entertained” here refers to the capturing and holding of the court’s attention.

Differences

It is most important, if not essential, to distinguish the differences between the actor and the advocate.

At no time does the actor ever take part in a real life event. Theatre is never real. It is not real life, but rather a representation of events, in a real life manner, under controlled conditions for the actor and the audience. People come to the theatre to vicariously experience something that will most likely never happen to them.⁷ Or, alternately, it is happening to them now in their real lives, but they do not realise it until someone on the stage points it out to them.⁹  The job of the theatre is to advise and inform. If what the audience is witnessing does not have some suggestion of either of these two elements, then it may be said, that what they are watching is not theatre.

At all times the advocate must never forget that what they are dealing with is real life, importantly, someone else’s real life. What the advocate does in the court cannot be asked to leave the stage as an actor can in theatre, because the audience didn’t like the way the advocate was performing his task. It is essential that the advocate never forgets that someone else’s life may depend on them doing their job well. How best to train law students, and the adequacy of the training, to fit the purpose of the future advocate, has been a serious question for legal educators. This is why the aim of this paper is to arm the student lawyers with techniques that will help them present to the court.

PART TWO- LEGAL EDUCATION

As far back as 1993, writers of legal educational texts were bemoaning the need for skills training at a university level, “So far, training institutions have paid little attention to providing any formal, structured training in advocacy skills for solicitors.”¹⁰

In 1994, Fiona Martin pointed out,

“There is still a school of thought that considers training in skills a ‘trade’ school task or a matter for other stages of the educational process and not a proper concern of universities”.¹¹

Ms Martin went on to point out the Pearce Report’s (1987) 12 recognition and endorsement of students studying legal skills at an undergraduate level. She goes on to add Noel Jackling’s (1986:4) list of benefits for an “integration of academic and practical training” as:

• Theoretical learning is enhanced and reinforced.
• Theory is put in context, in real life perspective; students are able to make connections between the academic and the practical.
• Integration helps avoid the belief that law in text books and law in practice are the same thing.
• Integration facilitates the perception of problems as being multifaceted and not often presenting themselves within subject divisions.
• Integration minimises the likelihood that law is regarded as having merely intellectual consequences rather than practical ones.
• The student is less likely to formulate the view that most law is adversarial.
• Non-academic skills are best learned across time, rather than deferred in the belief that they can be learned in six months in a practical training course.
• Development in communication skills will be facilitated.¹³

She also adds that “academic education and training [should be placed in] a real-life perspective.”¹⁴

It was in an attempt to incorporate these benefits that Monash University began “dabbling”  in “role playing” as a method of instruction of skill training back in the early 1990′ s .

Role playing is a method of using students to play clients and practitioners in a variety of hypothetical scenarios. Monash based their instigation of role playing on D.A. Kolb’s two matrixes of his learning theory. These matrixes in turn were based on the “cognitive” perspective of learning and involved:

• “Concrete experience- requiring involvement without bias, a practical ‘hands on approach’;
• Reflective observation-requiring listening, watching and observation from an open-minded perspective;
• Abstract conceptualisation-requiring an analytical approach, integrating observating in theories and thus developing general principles.
• Active experimentation-requiring the testing of the theories, problem solving and decision making.”¹⁵

Adult learning may be described as:

“‘psychological contract of reciprocity’ (James 1987: 282), which requires that adult learners ‘give’ of their present knowledge. This helps them integrate and apply new perspectives. They also ‘get’ from other learners and thus incorporate new ideas.”¹⁶

By the year 2000,

“The brief of several of the new law schools, including Griffith, my own, was to move legal education beyond the reductive rote learning which typified many law schools and to incorporate critical and contextual perspectives and a student-centred approach to legal education. A second, even more radical change was… skills teaching became increasingly important.

… the large groups were not lectures but encompassed a variety of pedagogical approaches, including role plays, buzz groups and report backs.”¹⁷

The one skill that all legal educators agreed upon was the need to develop the skills of communication.

PART THREE- TECHNIQUES OF COMMUNICATION

Role Play

By 1999 such learning methods as role playing were more widely used. Samantha Hardy used it in her ‘The Market Day Project”. This was:

“a series of activities aimed at giving students a number of different perspectives on legal disputes involving consumers, and at engaging them in the complexities of a life-like situation. In the early activities the students play the roles of consumers and retailers and, in effect, create their own disputes. In later activities, the students act as the lawyers for the consumers and retailers, isolating the legally relevant facts from the earlier role-plays, negotiation with the other disputants, and providing legal advice.”¹⁸

Ms Hardy saw this as “encouraging dramatic skills such as role-playing the pressured salesperson during the purchase transaction”,¹⁹ which is a perfect example of the teaching methods of the theatre being applicable to the training of advocates. But is there more that Ms Hardy could have incorporated into her series?

The Market Day Project

The aim of the project was to “create a contextual simulation” which put the students in an artificial “real life” situation or a market place where the students could be the people in the market place and experience “first hand” the experiences of consumer/retailer in a “hands-on” way.

From a legal perspective the aim of the series was to develop students functioning and declarative knowledge of consumer protection laws. With the aid of the dramatic use of role playing, the students went on to develop a procedural knowledge and conditional knowledge of the laws as well.²⁰

From an educational perspective,

“The exercise departed from the traditional assignment model in that it required the students to consider a consumer protection problem from the beginning of the transaction giving rise to the legal issues, rather than dealing with the issues in hindsight, well after the transaction had taken place.²¹

The use of the groups was ‘designed to mimic the approaches to problem-solving found in the workplace and students [were] expected to learn approaches to resolving conflict, planning and managing time.”²²

From a theatrical technique benefit perspective, the students had to be creative in what they had to say and do. They did not have a set course of action or dialogue, but rather the adventure of improvisation.

“Half the students role-played consumers wanting to purchase a product. In doing so they needed to consider what the consumer might want in a product… They also had to think about the types of questions that a consumer might ask of a sales person during the actual purchase of the product.”²³

This “on the spot invention” is the acting process at work. It allows people to develop skills of communication not found in most other areas of learning. What the market place series did was allow the students to put theory into practice which is precisely what the students complained about a decade earlier as in Ross Hyman’s article,

“Students consistently report that they find lecture method irrelevant and uninspiring. This method has been described as ‘non-involvement, non-experiential, non-interest arousing and nonsense as a method of teaching professional responsibility.”²⁴

With the use of an acting technique, if not “the” training technique, known to the theatre as improvisation, the law has been able to train its students f or the real world without harm to real people.

Improvisation

Improvisation was a technique developed by Viola Spolin. It is a method of training actors by playing games.

“The game is a natural group form providing the involvement and personal freedom necessary for experiencing. Games develop personal techniques and skills necessary for the game itself, through playing. Skills are developed at the very moment a person is having all the fun and excitement of playing a game has to offer- this is the exact time he is truly open to receive them.”²⁵

We may now revisit one of the characteristics of the actor, being that acting is never real. At no time is it real people doing real life events for their own purpose. Acting is the use of real life actions to portray an artificial scenario created by someone else for someone else’ s viewing. This has now been done for the advocate, by applying acting techniques to the training of law students.

The main principle of Ms Spolin’ s technique is that a scenario (a game to be played, dealing with a specific problem) must be created. The players must then solve the problem within certain rules. For each game there is a point of concentration that the players work around.

In the Market Day Project, different scenarios were created to learn different aspects of consumer law. This was played around the point of concentration of the need to buy or sell a product, all within the rules of the relevant law. These are the principles of improvisation and the theatre being used to train legal students, the main objective being to develop communication skills.²⁶

The students then “played” out these events ‘”retending” they were real life, for assessment by an interested third party, another characteristic of theatre. These scenarios entertained, as in holding others attention, and did advise the other person and the interested third party. Thus incorporating all elements of the theatre and educating law students into the workings of the law in the “real world” with the “protection” of the theatre.

The law and theatre today

Right up to the present day, some legal practitioners have found it difficult to “rhyme theory with the practice”, as in the case of Tureen Afroz, a lawyer from Bangladesh.

“I realised for the first time that trial advocacy does not mean only knowing the law. It means much more than that. Knowing the law and its application is of course a necessary condition but not a sufficient one. Advocates should more importantly know how to present their case in the court. It requires skill and that was never taught in law schools… Advocacy, as I have learnt now in Australia, is just like a ‘performance’ perhaps a theatrical one. A courtroom is like a ‘stage’ for trial advocacy where they have to do their ‘final performance’.

Of course they have a definite costume (gown) to wear, a theme (theory of the case) to establish, dialogue (arguments) to communicate and above all, an audience (judge, jury, colleagues and clients) to impress. Advocacy is like an art… They should also give particular attention to matters like the way they stand before the court or move their hands while addressing the court. Their voices should be distinct and their speech should be audible. They should always try to make eye contact with the judge and the jury.”²⁷

Mr. Afroz ends this observation, noting that “a successful courtroom performance does not happen by accident. Advocates have to develop this craftsmanship within them.”

Mr. Afroz is not the first to compare the court room with the theatre or to suggest we look to the theatre for the skills needed as an advocate. As far back as 1993, Keith Evans was saying much the same thing. In fact, in his book, The Golden Rule of Advocacy, he dedicated an entire chapter to the Advocacy of the theatre.²⁸

“The court of law is theatre. It should be professional theatre. Your job is to make it professional theatre… you wouldn’t want to be an advocate if there weren’t something of an actor inside you.”²⁹

The chapter begins so promisingly and then stops short of going into the world of the actor to bring out the skills needed by the advocate, particularly communication skills. Mr. Evans enthusiastically puts forth “buzz words”  like; entertainment, drama, a good story line and audience, but offers nothing of the training techniques available to the actors to do the simplest thing, such as making eye contact.

Objectively, it seems too easy to simply tell someone to make eye contact. However, that becomes a problem if that person is so shy they are convinced they will “burst into flames” if they look another person in the eye. This may mean that this shy person cannot become an advocate because the legal training offers nothing to improve a person’s confidence. Writers, like Evans, suggest that the skills needed are there for us in the theatre, but none of them actually go to the source and reveal to us the methods used to develop those skills.

Viola Spolin’s techniques of improvisation have two specific exercises for the development of eye contact.³⁰ It is these elements of the training process that are needed to develop the advocate for a life in the public eye of the court.

It may be easiest to apply some of the more basic techniques of the actor by superimposing them into practice while examining the most common of legal training techniques- the moot court.

PART FOUR- THE MOOT

What is mooting?

The origins of mooting have long since disappeared into the blur of history. Some believe it can be traced back to medieval times:

“Young men residing at the Inns as apprentices took instruction from their seniors and were required to perform in moots over several years before they could be admitted as practitioners. Moots were one of the few formal features of the legal education of the time”.³¹

The mooting process may be defined as “the discussion of a hypothetical case by law students for practice; a hypothetical doubtful case that may be used for discussion.”³²

There are three key features of mooting which have survived from historical time to now:

• students assume the roles of advocate before a simulated bench (which may comprise professionals, and/or academic s , or students­ depending on the formality of the proceedings);
• Students argue points of law before the bench, which a rise from a hypothetical scenario they have been supplied with;
• Students are expected to be able to answer questions from the bench relating to the arguments presented or any other relevant l aw that the students may not have considered.³³

There is a difference between a moot and a simulated trial. A moot does not have a jury or witnesses. It does, however, have judges who assess the merits of the cases put forth. Thus the acting techniques presented for the moot would also apply to the simulated court room. For simplicity, the focus of this paper will remain with the moot court.

Like the role-play of Hardy, the “mooters” have been given a predetermined scenario from which to apply the law. Remembering the characteristics of the actor and the theatre, someone other than the mooters has created an artificial situation to which they must react. This information is to be conveyed via speech and gesture, to an interested third party, ideally in an interesting manner. This then fulfils the required elements of theatre – to entertain and advise.

From an education perspective mooting is seen as a good example of assessment, which involves;

Multidimensional approach to students… a form of learning which may be constructivist, experimental and problem-based. Constructivism may then be reduced to having three characteristics:

Firstly, there is a process of knowledge constructed, not of knowledge recording or absorption. Second, learning is knowledge-dependent; people use current knowledge to construct new knowledge. Thirdly, learning is highly turned to the situation in which it takes place.³⁴

The Cambridge University Guide to Mooting has some very definite things to say about what mooting is and isn’t.

Mooting is fun, and it can give you a taste of what it is like to argue cases in court. It is essentially practice court room advocacy on a disputed point of law. Advocacy is widely misunderstood: it is not public speaking; it is not debating; and it is not acting.³⁵

It was stated earlier that advocacy is not acting, but it may be an art, and being an art, as is acting, it may share some of the techniques used b y the actor. If mooting is practice court room advocacy, then the techniques of the actor should also apply to mooting.

PART FIVE- THE ACTOR PREPARES; THE ADVOCATE PREPARES

While the techniques of the actor may be applicable to the advocate, there are still some basic differences. This being so, while the essence and purpose of the techniques remain the same, modifications must be made to adapt them to the circumstances of the legal profession.

Any book on advocacy will tell you that the first and most important thing the advocate must do is prepare his case. For example see Micheal Hyam’s, Advocacy Skills, chapter 2;³⁶ Noel Shaw, Effective Advocacy, chapter 2;³⁷ and Keith Trone and lan Dearden, Advocacy Basics for Solicitors, page 5:

“The most basic of all the ingredients for successful advocacy by solicitors is careful and thorough preparation.”³⁸

They all state the essentiality of preparation before you walk into the c ourt room. It is the same for the actor.

The actor must know something about the character being presented to the audience. The actor does one very important thing before placing a foot onto the stage, being the preparation of mind and body for the task.

Technique 1: relaxation exercises

An actor cannot just walk onto the stage. Otherwise they would take with them all the stress and tensions that they have built up throughout the day that is not in the script. If tension is to be displayed on the stage, then it is the tension the writer has called for in the script not what the actor has brought in with them.

Constantin Stanislavski makes it clear why it is important to be relaxed when doing any type of performance.

To convince you of how physical tensions paralyses or actions, and is bound up with our inner life, let us make an experiment. Over there is a grand piano. Try to lift it.

[The students try lifting the piano but can only manage to raise one corner.]

While you are holding the piano up, multiply quickly thirty-seven times nine,…you can’t do it? Well, then, use your visual memory to recall all the stores along the street from the corner to the theatre… can’t do that either?³⁹

The student is asked to perform several more seemingly simple tasks while holding up the piano, but can’t. Once the student sets the edge of the piano down is he able to perform all the tasks asked of him, especially the ones concerning memory of facts.

Does this prove that muscular tautness interferes with inner emotional experiences? … before you attempt to create anything it is necessary for you to get your muscles in proper condition, so that they do not impede your actions.⁴⁰

The point is, if your muscles are tense, then it interferes with your appearance and memory capabilities to function properly. It is just as important for the advocate entering the court room to be relaxed as it is for the actor stepping out onto the stage. Any performance is the same thing with the same level of stress. The only difference is that the actor knows this and has developed exercises to overcome the tensions. Advocates do not know this because they have not been trained for it.

Relaxation exercises should be taught to student advocates from the very beginning of their academic career, just as student actors are taught them. This is not something only for a student’s academic life; it is life practice in more effective advocacy.

There are difference between the actor’s preparation and the advocate’s preparation. For these purposes, the actor is standing in the wings of a theatre with no one from the audience watching what is being done. Here, the actor has room to swing arms, bend, squat, shake and do what the actor has been trained to do.

For the advocate, they may be in some public area, dressed in formal day­ wear, with limited movement. What is needed is a relaxation method that is both subtle and effective- the “isometric squeeze relaxation”.⁴¹ What is important is that the advocates know the difference between muscles being tense and relaxed. This even means knowing how to breathe.

There is a difference between relaxed and tense breathing. One sure sign of tension is an audible struggle in a persons breathing pattern.

A quick shortness of breath may indicate that you yourself do not believe what you are saying, which in turns sets off an alarm to the listener to pay close attention, to determine if there is a falsehood being said.

By squeezing the stomach, even while sitting, it is possible to:

slow breathing pace, moderate rhythm, and encourage greater use of the diaphragm. Passively breathing in or out through the nose or lips, or synchronizing breathing rhythm, and pauses.⁴²

These isometric exercises can be modified to accommodate the court room; pressing down on the arm of a chair will not draw attention from the judge or jury, but it will help the advocate release tension in his body.

Technique 2: scene analysis

The actor does not just walk onto a stage and then think of why they are there and what they have to do.

Whatever happens on the stage must be for a purpose. Even keeping your seat must be for a purpose, a specific purpose, not merely the general proposes of being in sight of the audience.⁴³

The actor needs to have some idea of where they are going and what they are going to do “physically”, before they make a move in front of an audience. Mooters should have the same information before they enter the court room and stand before the judges. Mooters should think of the court room as the scene of a play. With this in mind, the mooters can use an actor’s technique of scene analysis to prepare themselves for the moot.

Some actors use a three step process to analyse a scene.

1. “What is the character literally doing?

2. What is the essential action of what the character is doing in this scene?

3. What is that action like to me? It’s as if .. . “⁴⁴

All of these questions are asked on the “other” side of the door. That is, before the mooter opens the door and enters the room.

The first step is important even though it may not be so obvious when applied to mooting.

Step 1 : What is the character literally doing?

When it speaks of “literally doing”, it means literally doing. To the mooter this should mean thinking about what they are going to do when they first walk into the court room. The answer is to walk into the room, find a chair in the appropriate place and sit down. This would usually be the appellant/plaintiff to the right side facing the bench and the respondent/defendant to the left side of the bench and facing it. That is the literal action involved. See http://www.law.murdoch.edu.au/mcb/mootinqetiquette.html for a diagram of the relative bench positions.⁴⁵

This takes away some of the responsibility for determining what their next step is to be. The mooters already know the first thing they have to do. This starts the moot off on a positive footing. The mooter already knows something, and unless they have sat in the wrong chair, they have done at least one thing right from the start.

If the mooter does, for some reason, have trouble with entering or leaving a room, they can practice Viola Spolin’s improvisational exercise of “entrances and exists”.⁴⁶

Step 2 : What is the Essential Action of What the Character is Doing in the Scene?

Here the character is the mooter themselves. The mooters should ask themselves what their ‘”job” is, and what they are doing in the court room? The mooter must be able to answer these questions otherwise they have no purpose being there, and as Stanislavski insists, no purpose in being on the stage. This now incorporates the principle of role-playing for the advocate.

Unlike the actor who is only pretending to be another character doing something, the mooter is the one who is really there to do something. The mooter is there because a client wants them to be there. Be it real or imagined, the mooter, like the advocate, is in that court room not for themselves but for someone else. The whole reason for their being there is for someone else’s benefit.

An advocate is not an advocate of their own needs. An advocate is there for someone else’s needs. This mind set of “doing it for someone else should be instilled in the students from the very beginning. The motto of all law students should be “I’m doing this for somebody else”. Somebody else’s life depends on it. In this respect, the Cambridge mooters guide is wrong. Mooters are acting. They are acting for a client that does not really exist. But they must perform the actions as if the client does exist.

Step 3 : What is that Action Like to Me? It’s as if…

The difference between the actor and the mooter becomes very obvious in the application of this step. For the actor, it can be a difficult and complicated process of going into past experiences and trying to remember a situation that is close to what is being called for in the scene. That past situation must be an action that is appropriate to what is being required by the script. It must have the same intensity, joy, anger, or passion, whatever it is that the character has to be doing for that moment on stage.⁴⁷

If the actor cannot think of something directly, then a process of a “piece at a time” may be applied. That is, taking a piece of the action asked for and matching that piece to something familiar until there is an entire unit of pieces that will come together to produce the asked for action. This process can also be used by the mooter.

The mooter can take each piece of the court room action and assemble it into segments, then apply an “as if” to each segment of the mooter’s argument. For example; in one part of the argument the mooter is asking for attention to some specific detail. In another part, asking the court for something, in another, wanting the court to visualise something; each segment being an action; an “as if” for the judges.

The mooter should focus on what their job is and how they will do that job. This being to represent the client the best way they know how. If that is not what they are doing, then that mooter’s training is not developing them into an ethical, responsible workable advocate, or any other member of the legal profession.

Technique 3 : the audience

There have been many theories about the actor’s attitude to the audience. Some would have the audience disappear behind a wall.⁴⁸ The most important thing an actor should remember is that the audience is there to enjoy themselves. They have paid money for the actor to entertain and advise them. They are not working against the actor; they want to work with the actor to have a good performance. The audience wants to be included in the performance, they are the reason the actor is there. They are the reason the actor has a job.

The role of the audience must become a concrete part of theatre training… The audience is the most revered member of the theatre. Without an audience there is no theatre… When the audience is understood to be an organic part of the theatre experience, the student-actor is immediately given a host’s sense of responsibility towards them which has in it no nervous tension… each member of the audience must have an individual experience… When theatre training can enable… actors to think through the role of the audience as individuals and as part of the process… a whole new form of theatre presentation will emerge⁴⁹ (12-14)

These same principles may also be applied to the student, as well as, the practising advocate. If law students are trained to perceive the judges and juries as threats to their efforts, fear and tension will hinder any true progress at trial. Any communication skills that have been acquired will dissolve. Eye contact will be strained, and voices will pass through tight dry throats.⁵⁰

But, if the student advocate is trained to accept the role of the judges and juries as included in “their” process, as members of a cumulative effort, with the same goal, then the advocate will start presenting their information from a more relaxed posture. Addressing the court or jury will not be from a fearful distance, but from a more amicable perspective. Instead o f the advocate reaching up to judge or jury, it will be one person talking to another about a serious matter that requires special attention. It will be an interaction of people with mutual respect for each other, with a mutual interest in a serious matter. This is a perfect example of how the training techniques of the actor may be applied to the training of student advocates.

CONCLUSION

The purpose of this paper has been to introduce a new method of legal training for law students using the techniques of the actor, director and theatrical instructor. It did this by looking at ways the law is being taught today and how the use of acting techniques may help to improve legal teaching.

To do this, the paper established what advocacy means. It then pointed out any similarities between the actor and the advocate, and more importantly, any differences. The paper focused on training techniques such as role playing, simulation and finally the most widely used and historical method o f legal training, the moot.

It applied acting techniques to show how the actor’s use of improvisation to develop specific aspects of the performance could, and are, being applied to the training of student advocates. Particular attention was applied to such presentation details as eye contact, speech and the actor’s attitude to the audience, and finally how the actor should analyse a scene of a play to its very basic level of understanding in order to gain the most out of the performance.

It has been said that the techniques of the theatre are the techniques of communication. It has also been said that one of the most important skills of the advocate is good communication skills. As has been shown some of the techniques of training the actor are already being used to train the law student with role-playing. More of these actor training techniques should be used to train law students.

The techniques would be most effective with regards to personal confidence development such as eye contact, and group interaction and problem solving. It is possible to apply the actor’s technique of scene analysis when mooting, as well as, the essentials of being relaxed for the presentation. It is best to have an advocate who is prepared not only for his client’s case but prepared mentally and physically to do the job of the advocate as best as possible.

This can all be possible by applying training techniques for the performance of the art of acting to the advocate’s art of court room performance of the law.

James E. Smith  

 

Footnotes

1. Butterworth’s Concise Legal Dictionary, third edition, Peter Butt (ed)

2. V. Spolin, (1963 ): 14

3. R. Cohen, (1988 ): 27

4. R. Cohe n , (1988): 71; M . Burder,(1986 ): 19

5. R. Cohen, (1988): 50-55

6. Learned Hand, (1931): 87

7. R. Cohen, (1988): 20

8. A. Hicks, (1996): 4

9. W. Shakespeare. Hamlet. 3:2; 24-25

10. K. Trone. (1993):5

11. F. Marti n, (1995): 46

12. The Pearce Report (1987)

13. F. Martin (1995) : 46-47

14. F. Martin (1995): 47

15. R. Hyams (1995): 65

16. R. Hyams (1995) : 65

17. S . Berns (2000): 267

18. S. Hardy (2004)

19. S. Hardy (2004)

20. S. Hardy (2004): 205

21. S. Hardy (2004): 205

22. S . Hardy (2004): 207

23. S . Hardy (2004): 206

24. R.Hyams {1995 ): 64

25. V. Spolin (1963): 4-5

26. S. Hardy (2004): 204

27. T. Afroz (2005 ): 90

28 K . Evans (1993): Chapter 5

29. K.Evans (1993): 31

30. V.Spolin (1963): 176

31. A. Lynch (1996): 68

32. Cambridge University Guide to Mooting

33.  A. Lynch (1996): 70

34. A. Lynch (1996): 77

35. Cambridge University Guide to Mooting (2005): forward

36. R. Hymans (1990): chapter 2

37. N.Shaw (1996): chapter 2

38. K.Trone (1993): page 5

39. C. Stanislavski (1937): 96

40. C . Stanislavski (1937): 97

41. J . Smith (1985): 61-82

42. J. Smith (1985): 115

43. C . Stanislavski (1937): 35

44. M Burder (1986): 19 

45. Mooting etiquette

46. V. Spolin (1963): 167

47. M. Burder (1986): 13-18

48. V. Spolin (1963): 12

49. V. Spolin (1963): 12-14

50. Symptoms of  stage fright: antion.com/articles

References

Keith Evans (1993) The Golden Rule of Advocacy, Blackstone Press Limited

MilIissa Bruder et al (1986) A Practical Handbook For The Actor, Vintage Books

Micheal Hyam (1990) Advocacy Skills third edition, Blackstone Press Ltd.

Noel Shaw (1996) Effective Advocacy, The Law Book Company

Johathan Smith (1985) Relaxation Dynamics A cognitive-behavioral Approach to relaxation, Research Press

Viola Spolin (1963) Improvisation for the Theatre, Northwestern University Press

Constantin Stanislavski ( 1937) An Actor Prepares, Redwood Burn Limited

Keith Trone and lan Dearden (1993) Advocacy Basics for Solicitors, The Law Book Company Limited

Richard Cohen (1988) THEATRE, Mayfield Publishing Company

Andy Hicks, Creative Action Methods in Group Work, Speechmark Publishing Ltd.

Reports

Commonwealth Tertiary Education Commission,  ‘Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission ‘ (Pierce Report), Canberra, AGPS, 1997

Journals

Tureen Afroz (2005) ‘Learning Trial Advocacy: an outsider’s experience, 30 Alternate Legal Journal 2

Sandra Berns (2000) ‘Through A Glass Darkly’ Alternate Law Journal Vol.25, No 6

Ross Hyams (1995) ‘THE TEACHING OF SKILLS: REBUILDING-NOT JUST THINGERING AROUND THE EDGES, 13 Journal of Professional Legal Education 1

Samantha Hardy (2004) ‘Role Playing in Consumer Protection Law: The Market Day Project’, 14 Legal Education Review 2

Fiona Martin (1995) ‘THE INTEGRATION OF LEGAL SKILLS INTO THE CURRICULUM OF THE UNDERGRADUATE LAW DEGREE: THE QUEENSLAND UNIVERSITY OF TECHNOLOGY PERSPECTIVE’, 13 Journal of Professional Legal Education 1

Andrew Lynch (1996) ‘Why Do We Moot? Exploring the Role of Mooting in Legal Education’, 7 Legal Education Review 1

Internet

Learned Hand, (1931), To Yale Law Graduates, page 87 http://www.commonlaw.com/Hand.html

Mooting etiquette http://www.law.murdoch.edu.au/mcb/mootingetiquette.html 

Symptoms of Stage fright http://www.antion.com/articles/stagefright.htm

In August 2011 James Masur completed the Bar Practice Course.

James had previously worked in commercial litigation as a solicitor prior to being commissioned as a Legal Officer within the Australian Army. The completion of the Bar Practice Course presented obvious career options.

However, in September 2011 James was asked if he would deploy to Afghanistan with the Mentoring Task Force 4. James accepted the request. Pupillage was put on hold. The career path for James in the 12 months since completing the Bar Practice Course has truly been a road less travelled.

The Members of the Mentoring Task Force 4 live with, train and provide support to their Afghan National Army colleagues at patrol bases in Uruzgan province, Afghanistan. The Task Force also engages in reconstruction and security operations in Uruzgan province. The Task Force consists of approximately 730 Australian Defence Force personnel mostly from the Australian Army’s 7th Brigade based at Gallipoli Barracks, Enoggera.

Specifically, the legal role consists of liaison with the National Directorate of Security (NDS) in developing evidence packs for prosecution of ADF detainees within the Afghan justice system, meeting with and monitoring ADF detained prisoners in the Tarin Kowt Prison, advising on operational targeting as well fostering the Rule of Law within the Afghan National Army (ANA) through the development of ‘evidence based’ operations.

Since January 2012 James has been providing legal advice to Command and to Soldiers in an environment where physical hazard, extreme temperature and constant vigilance is routine.

The pressure of private practice might be a welcome relief.

 

Marcus Katter

RICHARD DOUGLAS SC:

We have the pleasure of six highly regarded members of our Bar Association favouring us with their presentation this evening. The format will be as follows:

• the three junior counsel, Adrian Duffy, Damien O’Brien and Liam Dollar will address you, for about 15 minutes each, on a range of topics on the practical aspects of the silk/junior paradigm.
• that will be followed by a panel discussion where our three silk panellists, Danny Gore QC, Graham Gibson QC and Phil Morrison QC, will canvass their views in response to a number of questions put by me, and of which as a matter of courtesy I have given them some advance notice. That should take about 30 to 35 minutes.
• that will then leave us with 10 to 15 minutes for questions.

Dr Cliff Pannam QC, who among other things wrote the book “The Horse and the Law”, said on an occasion like this in Victoria about a decade ago:

… there is no more satisfying experience and rewarding professional experience that junior and senior counsel can enjoy than working, arguing and making decisions together for the purpose of presenting and advancing a client’s cause. The otherwise loneliness of the professional task becomes a shared experience with the opportunity of being able to bounce ideas off one another; to have argument and tactics mutually evaluated; and to share from possibly (and hopefully) different perspectives how an advice should be formulated, pleadings structured, or a case conducted.

I proceed to our speakers.

ADRIAN DUFFY, DAMIEN O’BRIEN AND LIAM DOLLAR THEN SPOKE — SEE THEIR PAPERS ON BAQ CPD WEBSITE.

RICHARD DOUGLAS SC:

Danny Gore, in matters in which you are asked to nominate a suggested Junior Counsel, what are the attributes that you look for in such nomination? Is it your experience with them as your Junior, that they have been opposed to you, or is it is as simple as they are in the room next door or up the corridor?

DANNY GORE QC:

Damien [O’Brien} has really touched upon this group of issues in talking about what Silk a Junior should select. It obviously depends upon the nature of the case. You have to think of a Junior who is appropriate to the particular subject matter of the case. And also for the style of case that it is, whether it is a trial, application or an appeal. We all have different skills and some Juniors are better at say outlines of argument than they are at examining or cross-examining witnesses. So, if as a Silk you want someone to do a good outline of argument, you will look in that direction. If you want someone to handle some of the major witnesses in the case, you would look in that direction. As Damien has also said, communication is important. You can’t work as a team unless you are able to communicate together.

John Gallagher will be disappointed if I didn’t tell a story from time to time in responding to these questions.

I do not remember the first case where I appeared as a Junior to a Silk, but I recall the first case where I appeared with the late and great Peter Connolly QC. He was clearly the leader at the Bar when I was finishing my studies as a Judge’s Associate. For me he was “Mr Connolly”: “Yes Mr Connolly I will tell the Judge that … blah blah blah”. When I came to the Bar I was in the small old lift in the old Inns of Court and I said “Good Morning Mr Connolly”, and he turned on me and said ‘Gore, you are at the Bar now you either call me Peter or you call me Connolly, there is no Mr at the Bar”. I said “Yes Mr Connolly, ah yes Peter, ah yes ummm….”. So how Peter picked me for our first case together I don’t know. Maybe because he knew I would be someone he could ride rough-shod over, I don’t know.

RICHARD DOUGLAS SC:

Phil, given Danny’s comments of Junior selection based on who has experience in a particular field of expertise do you think that means the junior Juniors struggle all the more to get the Junior briefs.

PHIL MORRISON QC:

I think it does. And whilst I agree with those comments I think the ability to leave small appropriate and very expensive gifts has really been overlooked [MUCH LAUGHTER]. But I can say from my own experience two things.

One is as a Silk I am not looking for some patsy to come and say yes and nod their head and sit around like a yard of pump water. I actually like people who come and contribute, stand up, speak their mind, object and intervene when they disagree, not mindlessly agree. I want someone who will bring something to the case, not just come along and be a patsy. That has its own vices. It does lead to a catch 22. I can remember when I started, I think it might have been about 10 years before I got Junior brief to anybody. Simply because I wasn’t fashionable. I didn’t have expensive gifts you know! Graham Gibson and people like David Jackson were very fashionable and they were off with Silks all the time and it used to drive me nuts. So I think that catch 22 does work.

The counter point of all that is, what can you do to make yourself sort of more attractive to Silks? There is only one answer to that … gifts! [MORE LAUGHTER]

RICHARD DOUGLAS SC:

Graham, Damien O’Brien spoke of a practice, an inimical practice as he has described it, of Juniors for a variety of reasons sending drafts to instructing solicitors of their pleadings and advices. I have certainly struck it and the excuse given, unsatisfactorily in my view, is that it is nothing to do with me, it is the relationship that they have with the solicitor that got me the Silk brief in the first place. What’s your view of that practice?

GRAHAM GIBSON QC:

The provision of “draft” opinions to solicitors must be positively discouraged. There can be no upside in that at all. You might think that there is an upside in terms of fostering or maintaining a relationship with a solicitor. It might work that way for a short period of time but inevitably it will come to grief at some stage. There is one exception I think that comes to mind. For example, you might be briefed on an issue of particular specialty or expertise, say a stamp duty matter, by a solicitor who has extensive experience in that field.  In such a case, especially if the brief does not include a memo of the solicitors’ views, or a letter of advice from the solicitor to the client, it may be appropriate for Counsel to seek the solicitor’s views on a draft of the opinion. 

RICHARD DOUGLAS SC:

Phil, Adrian [Duffy] raised the point about disputes between Junior and Senior arising on the run so to speak in Court. What is your view about that?

PHIL MORRISON QC:

That’s a simple one. I agree with Adrian. You have got to do it [disputation], as it were, out of sight of the Court. You can’t have a family barney going on when the Judges can hear every word you are saying and it goes down on the record and the other side can see it as well. If you disagree about objections, the practical reality of that is that mostly it will be settled by the Silk either by taking the objection or not taking the objection. If you feel really strongly about it either way, either the Silk feels that an objection should be taken or a Junior feels an objection should be taken, it is not just the person on their feet who can take an objection.

I have experienced a situation where I was taking a witness on my side and the person who was actually taking the witness on the other side didn’t take the objection, but rather the Silk did. At the time I thought it a bit unusual.

So you can do it, but resolve it as quietly as you can. There is always an opportunity, when either if it’s an examination in chief that comes to an end or alternatively it’s cross examination. There is always a pause of some sort and if necessary you can say we need five minutes to sort this out.

DANNY GORE QC :

Can I respond to that one? Because it enables me to tell another Peter Connolly story.

RICHARD DOUGLAS SC:

Certainly. They are very important these stories.

DANNY GORE QC:

They are important because these are important names for members of the Bar and most of you didn’t even appear before Peter Connolly.

RICHARD DOUGLAS SC:

One of the great members of our Bar and our Bench .

DANNY GORE QC:

Absolutely. He should have been on the High Court. He had that intellect. He was appearing before the High Court in one case. Sir Garfield Barwick was presiding. Connolly was in difficulty over a point. Barwick was really pressing him on this point. Connolly’s Junior, who I won’t name but he later became a District Court Judge, put up a CLR volume and said to him “Connolly read this, read this, read this!” This is the sort of thing that Adrian [Duffy] raised. So Connolly quickly read it, stalled on the point and said “oh look your Honour we rely upon what Justice Kitto said in the matter of so and so and so and so…”. Barwick responded to Connolly that Justice Kitto was in the dissent. And Connolly picked up the book and threw it across the Bar table and turned to his Junior and said “Whose bloody side are you on?”.

Look, I agree with what Phil [Morrison] said on the objection question, as a Silk if you say to a Junior: “Look I think you should object”. You just sense straight away the hesitation for whatever reason, if as a Silk you think you should object, up you get. There used to be an old English practice that only the examining Counsel could object, but I think the practice in Queensland is different and nationally is different. It was also a practice in England that you couldn’t split witnesses, in other words you couldn’t partly examine with the leader and partly with the Junior. I think that practice is still prevalent in Queensland, but that may change.

RICHARD DOUGLAS SC:

Probably best to raise those issues with the Judge if you are going to do it in a larger trial?

DANNY GORE QC:

Exactly. I agree. It is unfair to Counsel on his or her feet for someone sitting down to say please ask this. I mean, I hate it as a Silk and the Junior should hate it as well. So as a Silk you don’t do it unless you think you really have to. You know what level of discussion you have had with the Junior about the point. If you think it is so important it needs to be asked and you feel that the Junior is probably not across the detail, you just have to ask for an adjournment. You then go outside and talk to you Junior about it and let him or her go after that.

PHIL MORRISON QC:

Let me tell a Danny Gore story that tells you about the resolution of conflicts between Junior and Silk. I was Danny’s Junior in a case. We were at a long bar table in the District Court, Planning Court I think. There was a dispute going on between Danny and the opposing Silk about a call for a document. Danny’s opponent wasn’t responding to his call. Finally, things got tense. I was sitting to Danny’s right and the other Silk was to my right again. In front of my eyes about this far off the Bar table, this bound volume, which was the document called for, went sailing through the air. The other Silk had thrown it the air the length of the Bar table and went way past my eyes and went crash and over went the glasses of water. I thought ‘Wow this is exciting’. I reached out to get it and Danny’s hand landed firmly on my arm. He stood there and said “Your Honour, that is not a proper response to the call.” That conflict was resolved.

RICHARD DOUGLAS SC:

The stories are more important than the theory. I will go to you Graham. Liam Dollar raised the issue about disparate views being expressed by Junior and Senior Counsel. These are a good thing in terms of producing a proper result. But what if those disparate views persist in relation to the provision of opinions, trial theory, cross examination? I am not saying it happens a lot, but I have seen it happen. How does one deal with that?

GRAHAM GIBSON QC:

Well you have covered a number of different topics there. If one takes for example an opinion. Frankly, I think a frank discussion of views is to be encouraged between Silk and Junior. Now for many of you who won’t have had the experience, if the Silk has views on the topic, and you have your different views, persist if you think that is the right way to go. I think it is a most productive aspect of Counsel working together.

In respect of the presentation of a case in court, if  things become intractable, ultimately the Silk bears responsibility [for the result].  But only after much talking about a case that is usually months in preparation or in execution.  Discussion is to be encouraged and, if necessary, a persistent and fundamental difference may have to be reflected in the expression of differing views in an opinion.

I can’t let Danny have a monopoly on the Peter Connolly stories.  Peter Connolly had an awesome reputation as a barrister and a fearsome reputation.  On the subject of Juniors, and their performance, he expressed the view, or at least it’s attributed to him, that there are two kinds of junior…..those who pop in after a case to enquire as to how it has gone…..and those who don’t! 

RICHARD DOUGLAS SC:

On that question of conflict, Phil or Danny, any additional comments?

PHIL MORRISON QC:

I know through the Bar Practice Course I was doing that one of the things that I have always told the Bar Prac people who are going to be Junior Barristers: they ought never try and pretend to know more than they do. It will hurt you time and time again. We should all do that and I try to do that. Who knows I have got enough ignorance. So when you get a conflict like that, both as a Junior and the Silk, you should be doing this as well. You shouldn’t just assume that you know every damn thing in the world. You [Silk] should be open to the fact that there is a contrary view, and it may well be right.

This is why I say to you I want Juniors who are not just sitting around doing nothing. I actually want people who are a proper sounding board to test what I am doing and to say that they think I am doing it wrong or have it wrong, or got some decision wrong, or I don’t understand the law or whatever else. You don’t actually have to have a brawl about it; you have a mature discussion.

One of you will give ground and if you ultimately don’t then you simply have to live with one another, maintaining your opposite views. The judge will tell you which one is right eventually.

DANNY GORE QC:

Just a brief comment on that. The way I have normally found it is if say on a point of law you and your Junior have a different view, it is quite easy to handle. In a joint opinion you identify the two competing arguments and then when you deal with prospects your assessment of prospects will reflect the differing views that you have.

So if you were both in favour of a particular point you might assess the prospects as being say 60% in favour of winning that point. But if the Silk is in favour of it and the Junior is against it but a very competent Junior you might assess the prospects a bit within the range of 40 to 60%. So you have dropped the prospects below that 50% to reflect the fact that there is recognition of a contrary argument. And you don’t even have to spell out in the opinion if you don’t want to that the Junior supports one argument and the Silk supports another. There are ways of dealing with it. Learn how to deal with it.

RICHARD DOUGLAS SC:

Senior and Junior Counsel are often involved in litigation over a period of months and there are important and not so important points in the interlocutory phases. There are some Silks who want to have everything run past them. Some are irritated by the fact that they are cc’d on every email on every interlocutory instant. Phil what is your view about that?

PHIL MORRISON QC:

I am very much in the latter [camp]. I don’t want to know everything at all. And I get very irritated if I get mindlessly copied in on things that I don’t need to know. It is normally solved if nipped in the bud very early by one or other of us saying “I don’t want to know about this’, or me saying ‘Listen, don’t bother me about all of that stuff, bother me about these things. And please, (and this has been happening very recently) tell the bloody client not to hit reply all on every damn email he gets because suddenly I start getting client emails which I don’t want.”

I suspect the true answer is it depends on your relationship with your Junior. If you are briefed with somebody – this goes both ways – if you are briefed with somebody in whom you don’t have complete confidence then you are naturally going to be a little more edgy.

RICHARD DOUGLAS SC:

Danny, have you any comment on that?

DANNY GORE QC:

The kind of advice I give to a Junior is to treat the case as your own. Pretend that you don’t have a leader. Weigh up your own skills because you will be developing outlines of arguments and pleadings, and so on, which ultimately will be reviewed appropriately by your leader and you will see how well you meet the standard. As a Junior you shouldn’t think this is easy. You should actually think this is hard because I am going to be tested by my own leader, and he or she could be really quite rude to me if I get it wrong.

If you treat the case as your own the rest will sort itself out. The leader will know that you are actually doing a great job because you are taking on all of that responsibility. The leader will let you know also how often he wants you to know something about that case.

RICHARD DOUGLAS SC:

Can I ask you, Graham, about the issue of division of labour which was canvassed by Adrian [Duffy]. He spoke about the agreed division of issues and witnesses and the like. The question I have for you is this: how early in the process of the brief would that the agreed? Should the briefing solicitor be involved in that division of labour?

GRAHAM GIBSON QC:

Although the subject of the division of witnesses and issues will evolve during the preparation of a case, they are matters that should be addressed and resolved — even if only tentatively — in good time before the hearing.  As a Junior, to avoid any nasty shocks, you should discuss these topics candidly with your leader at the earliest opportunity. 

As to the second aspect, it is a courtesy to involve the solicitor, and I think that should be done.   That said, if I have made up my mind about it in conjunction with my Junior it won’t really matter what the solicitor says about it.  But occasionally solicitors have strong views about such things and it is an issue to bear in mind. 

RICHARD DOUGLAS SC:

There might be a bit of a shock, for instance, at trial for a Junior to find he or she must take a particular witness?

GRAHAM GIBSON QC:

Well, that is what I had in mind when saying so that it is hardly in anybody’s interest that anyone suffer shocks.  The nature of litigation is that we suffer enough shocks unintentionally and we don’t want to inflict any more on ourselves.   That depends on the nature of the case.  Responding to an injunction application, for example, requires decisions to be made immediately and dealing with the matter as if it were a commando raid.   If a trial is months away and there are lots of witnesses it will evolve.  It can’t be left until the last minute obviously. 

What I do is to share my evolving views with the Junior I am working with to see to what extent that they agree with that and are comfortable with it. I should emphasise that I would not expect an inexperienced Junior to be taking witnesses. But it it is not actually doing the Juniors a favour to give them easy ride of sitting quietly in the chair doing nothing because part of the exercise is getting experience. It is a balancing exercise.

RICHARD DOUGLAS SC:

Sometimes the Junior won’t even be in court at a shorter trial. They may not be present half the time they might be out preparing the submissions, assuming they have to make submissions.

Phil and Danny, any comment on that particular issue — division of labour, involvement of solicitor, flexibility?

DANNY GORE QC:

Another Peter Connolly story I am afraid. I was Peter’s Junior in a demurrer.

RICHARD DOUGLAS SC:

You should publish these!

DANNY GORE QC:

Along with the restaurant guide. In a demurrer to a claim for specific performance of a lease and we had a conference with the clients and Peter confidently told the client that we could successfully demur on the basis that the statement of claim didn’t identify the date of commencement of the lease. And he said to me “Gore, you go away and do an outline of argument”. It was in the Full Court of course. So I went and did some research and I found a couple of [English] Court of Appeal decisions which said that you couldn’t demur in those circumstances. I think from memory Lord Denning was on in one I had just come out of university and I thought “This is hot!”

So I went back to Connolly’s chambers and knocked tentatively on the door and he ripped the door open and said “What do you want, you haven’t got a consultation”. I said “I know Peter … Connolly … Mr Connolly, but I have found these decisions of the English Court of Appeal which say that we can’t demur in that matter of so and so…”, he said “They are wrong”. He didn’t bat an eyelid, he just said they are wrong. “Go away and do an outline of argument that says they are wrong.” I said “Why I didn’t think of that?”. As John Cleese said in A Fish Called Wanda — “We won the case”. Peter had his own style. He was a bit rough. In fact he came down to my chambers the next morning and he knocked quietly on the door and I didn’t know who it was and I opened it and he said “Gore I want to come in and say I was a bit tough on you yesterday, I apologise”.

RICHARD DOUGLAS SC:

But he still wanted you to do the outline?

DANNY GORE QC:

He still wanted me to do the outline.

RICHARD DOUGLAS SC:

I have one more question because I want to give an opportunity to these people to ask questions if they wish. It concerns dissatisfaction with Junior Counsel. There must have been occasions where you have been dissatisfied with the performance of Junior Counsel either because of their application to tasks, perhaps their ability, so much so that you think that the client’s interests would be best served by them not continuing as Junior. And perhaps they are a little resistant to that. What’s your view about that issue?

PHIL MORRISON QC:

I don’t think there is any doubt about what should happen, unless you are exercising some sort of prejudice, and hopefully you are not doing that. I have been in a situation where I formed the view that the client’s best interests required a change of Junior. I had no hesitation just as I would expect if the Junior really formed the view that I was such a gallactically stupid person that I couldn’t continue in the case. The Junior should raise it with the solicitor. So I don’t really think there is much doubt about what should happen.

And I will tell you a story, not a Peter Connolly story, a Senior Judge Administrator [Byrne J] story when he was at the Bar and in my chambers. He was fairly tough on Junior barristers even within his chambers as you may not be surprised to hear, particularly when they were working for him as his Junior. If he gave you a task, say a pleading, but usually not a full blown opinion necessarily, he would ask you, or give it to you at 4 o’clock in the afternoon and the next morning say “Have you done that yet?” If you said “No” he would say “Oh dear, we don’t have that much time, perhaps we had better get another Junior in immediately”. So he would discuss switching you out if you couldn’t do it and I think that’s the answer to it. It’s the client’s case, it has to be run the best it can be.

RICHARD DOUGLAS SC:

Graham?

GRAHAM GIBSON QC:

Fortunately perhaps I have never been in that situation but if worst comes to worst, that is right. But one would hope that it could be avoided by counselling.

RICHARD DOUGLAS SC:

Danny can I offer the microphone to anyone to wants to ask questions? Or do you want to tell another Peter Connolly story?

PHIL MORRISON QC:

While you are thinking of questions, can I give you a story about division of labour. You have to be flexible. If you divide the labour up you really have to be flexible. When I was Junior to Pincus, I was taking a particular witness, I knew that and so when that witness was giving the evidence I was there taking every note in the world and concentrating so hard my brain popped. And then the evidence finished and I stood up to cross-examine.

Well I tried to stand up to cross-examine and I got half the way out of my chair and this big hand next to me went thump on my shoulder. Pincus had decided he would take the witness after all. He didn’t bother telling me, just banged me down in my seat and stood up and did it off the top of his head. So be flexible!

RICHARD FRYBERG THEN ASKED A QUESTION ABOUT HOW JUNIORS WERE SELECTED.

GRAHAM GIBSON QC:

It is the exception rather than the rule for me to be contacted by a solicitor and asked ‘Who would you like briefed as a Junior?’  Usually the Junior has been contacted by the solicitor already, or the solicitor will have a Junior in mind. 

If I am contacted the solicitor will say “We would like you to take this brief, we are thinking of briefing X as the Junior, are you comfortable with that.”  And I don’t think I have ever said “No, I am not comfortable with that”.  Although there are circumstances when there has been a discussion – especially when the solicitor has mentioned a few names – as to the nature of the case, the degree of the experience, the sort of matters Danny was talking about at the outset.  “What is the skill set likely to be required?”  In my case, I’m quite sure that much of my work comes from the recommendation of Juniors, and so the opportunity to positively recommend a Junior is somewhat limited.

RICHARD DOUGLAS SC:

Danny?

DANNY GORE QC:

It is probably a little bit more evenly divided in the case of my particular practice. Sometimes, you know, 50% of the time I will be recommending the Junior or vice versa.

One strong piece of advice I want to give to you all, or to the Juniors of course, you should make it one of your goals to be asked to be a Junior to a Silk that you don’t know. Because in a sense then you will know you have really made it because the Silk will really only have approved of that recommendation on your reputation if you don’t know him. So it might be that he was against you in a case, you were doing a case by yourself, you were a Junior to somebody else, or he was sitting in the back of the Court in the Court of Appeal one day and saw you fully argue a case. For whatever reason when a Silk asks for a Junior that he hasn’t worked with before, as I say, you will know you have made it.

RICHARD DOUGLAS SC:

I adverted earlier to what Dr Pannam QC said some years ago. Can I quote further from Dr Pannam from that same occasion. He expressed himself in a manner which fairly resonates with a number of comments this evening pertaining to the role of a junior when briefed with a silk:

For my part I find that there is nothing more interesting and challenging than to work up a case in common with junior counsel, especially with a junior who has particular views about the matter in hand whatever they might be. It is then that the client is best served by having both senior and junior counsel. Juniors whose sole contribution is to rubber stamp senior counsel’s views without any independent examination should just return the brief. They are of little or no use. A reasoned agreement with senior counsel’s views is a very different matter.

I would ask you all to show your appreciation for your participating colleagues in the usual way.

Thank you and have a good evening.

Division of Witnesses and Forensic Decision Making

Many counsel are in the habit of formulating a “Case Theory” in advance of a trial.¹ This will be the unifying theme that informs decisions as to what witnesses to call, what legal arguments to run, what amendments, if any, to be made as the case develops and the various forensic decisions made during the trial.

Whether or not this is done in a formal way is a matter of style. But each counsel must have a clear idea of what they are trying to achieve in the case — what the arguments are and what they are trying to prove.

Most silks will approach the preparation for trial as a team effort.

Preparation will also usually involve, at the least, some level of discussion about the approach to be taken with particular witnesses, even if the cross-examination is being done by the silk.

Where the trial involves the examination and cross-examination of only a few witnesses, it may be that the silk will take all of them. Even in those cases, the silk may ask the junior to take one or more formal witnesses. This will no doubt be influenced by the level of experience of the junior.

It is for the silk to decide which witnesses are to be taken by which counsel in the team. However, a junior should not wait until the issue is raised by the silk. If there are some particular witnesses that the junior feels confortable taking, there is no reason why the junior ought not raise that with the silk. Doing so at an early stage is more likely to allow proper time for preparation.

Conversely, if the junior has been assigned certain witnesses, if the junior does not feel comfortable taking them, or if some help is needed with any particular aspects of the evidence of those witnesses, that should also be raised early.

In relation to those witnesses that the junior is to take, work out the approach to be taken with those witnesses and, in particular, what is sought to be proved from that witness. So far as the opponent’s witnesses are concerned, work out what needs to be put to those witnesses to comply with cross-examination obligations. Those matters should all be discussed with the silk at an early opportunity.

Different counsel have different approaches when it comes to examination and cross-examination. Some prepare the text of questions to be asked and have a comprehensive set of questions and alternative questions. Whilst I do not usually follow that approach, at the least counsel should have thought through the form of questions to be asked and have written down the points that are to be covered with each witness. This is not the occasion to talk at length about approaches to examination and cross-examination. However, so far as is relevant to working with a silk, sufficient preparation of the form of questions needs to be done in order to be able to discuss it sensibly and get feedback.

It is, however, the responsibility of examining counsel to make the decisions during examination/cross examination and re-examination about questions to be asked and objections to be taken.

A difficulty may arise if the silk thinks that a certain question should be asked and the junior has a different view. Early discussion about these matters maximises the prospect of these issues being flushed out and dealt with properly. Where that occurs, the junior must bear in mind that the silk will inevitably be significantly more experienced and has been briefed to lead the advocacy for the client. In most cases this will mean that the junior will defer to the silk’s view about what questioning should take place. Where this happens, the junior should carefully formulate questions of that category, so that there is no misunderstanding between silk and junior as to what questions the silk considers should be asked.

Where during the examination of a witness the silk raises a question to be asked, or suggests that objection be taken to an opponent’s question, but the junior does not agree, this raises a difficult position for the junior. There will often be insufficient time to form a judgment about the matter, particularly about taking an objection. When an objection is taken, counsel must be able to properly articulate the basis for the objection. If the silk suggests an objection, but the junior does not understand what the basis of objection would be, there are some choices to be made:

(a) Not take the objection;

(b) Take the objection and hope to stumble through the argument about it;

(c) Take the objection and then ask the trial judge for a moment to confer with the silk about the argument — bear in mind that you will not get away with doing this any more than perhaps once.

There is no correct answer. Much depends upon the junior’s level of experience and level of confidence that the junior has about the decision originally taken about the matter before the silk’s intervention.

Communication — Trial Preparation

It goes without saying that the communication between senior and junior counsel in the run up to the trial is crucial.

Some juniors work extensively with certain silks and have a good working relationship, such that communication issues are instinctive. However, it will happen that you may be briefed with a silk with whom you are unfamiliar. An out-of-state silk may be unfamiliar with the practice in our courts and vice-versa where you are briefed to appear in another state.

It is important to get a clear understanding with the silk as to the level of communication that is expected. Not all silks like to be copied in on every communication from the instructing solicitors. Similarly, this is a matter that should be discussed with instructing solicitors as well. There has developed a practice of counsel being copied in on virtually all communications to and from instructing solicitors. That may seem well and good, but it needs to be made clear what counsel is to do with these communications — for example, is it for counsel to suggest responses and to draft them, even if not expressly asked to do so?

It may seem simplistic, but it may also be important to establish with the silk exactly what the best method of communication is, particularly with a silk with whom you are not familiar. Not all silks are avid users of email, for example. For some, the most effective communication method is to establish a good working relationship with their secretary.

Another issue arising out of the communication issue is the responsibility for compliance with dates, including most notably limitation periods and court orders. If there is a general copying of almost all communications on a non-specific basis, there is potential for misunderstanding about who is to do what and when. It is best to establish a clear understanding of this at the start.

It is likely that if a case justifies more than one counsel, it is litigation of a kind that has the potential to be stressful. Litigation can be a fast-moving, ever-changing thing. Things happen unexpectedly and at the most inconvenient times. Late amendments, late disclosure, unavailability of witnesses, last-minute demands of clients, solicitors or senior counsel — all have the potential to cause panic and raise the heart rate.

It is therefore important to remain calm and positive when things take an unexpected turn. It is of no assistance to senior counsel to have a junior who is prone to panic. Neither is it of assistance to have a junior who is persistently negative, particularly if that negativity increases when the trial becomes more imminent.

Be up front about other commitments and give a candid assessment of your ability to perform tasks assigned to you. If you don’t think you can get done within time something assigned to you to do, it’s better to make that known up front rather than having to make excuses for it when it is not done.

Remember that the leader is relying upon your integrity as a barrister and that it can reflect upon the leader’s own integrity and upon the client’s case. A junior is not a mere “worker bee” who has no professional obligations. A junior is a barrister who has been briefed, along with one or more other barristers, to represent the client’s interests in litigation. True it is that there is a hierarchy of leadership, but that does not absolve the junior of responsibility.²

One of the important issues to get a clear understanding about is the preparation of written submissions for final addresses. Discuss who is to prepare the draft (typically it will be the junior) and discuss what the content of the submissions is likely to be. Keep the silk informed as to progress and raise any problems on the way through. Once the evidence finishes, there is not always time given to gather thoughts before addresses, so a good degree of anticipation is required.

Communication in Court

This is again one of the many areas of trial work where preparation is the answer to many, if not all, ills.

There are few better ways to throw senior counsel off their game than having someone constantly interrupt to make suggestions, particularly if they are not valuable suggestions. This applies as much to passing notes as to tugging on the gown or audible interruptions.

There may be very good reasons why senior counsel has not asked the question concerned — it may be an inappropriate question; it may be one where an assessment has been made that an unhelpful answer will likely ensue; it may be simply irrelevant or objectionable.

Very often, the junior will be the recipient of a good number of notes passed up by the instructing solicitor or the client whilst the silk is on her or his feet. It is important that junior counsel is an effective filter for these observations and suggestions. They may fall into the same category as the suggestions that the junior comes up with. To constantly interrupt with these suggestions is rarely helpful — but they cannot simply be ignored, as they may be quite important.

Remember that both the client and the instructing solicitor are likely to have had much closer involvement with the facts — and the documents — than either counsel. They may pick up on an inconsistency in the answer given by a witness where it might not occur to either counsel.

Apart from anything else, there is an important issue of client management involved. The client wants to feel that they have been listened to. Whilst most are perfectly content for counsel to run the case at trial, they generally like to think that important points they raise are at least considered, even if rejected.

The best course, if circumstances permit, is to bring all of these matters up at an appropriate break in proceedings — morning tea, lunch or after court. Bear in mind, of course, that it will be rare that a witness can be recalled because some question was not asked in cross-examination. Therefore, if there is an important point not covered, it must generally be dealt with before the cross-examination finishes.

Also be very wary, in relations to one’s own witnesses, of adopting the approach that something not covered in chief can be dealt with in re-examination. That is a dangerous approach.

Very often, of course, senior counsel will ask the junior towards the end of an examination whether there is anything else. If there is no break in proceedings imminent, that is the time to raise any important issues that may not have been covered.

Sometimes, the best way to assist in relation to points that have not been covered, is to get out a copy of any important document that assists with the point and subtly draw senior counsel’s attention to it. That is not done by brandishing a copy of it like a football banner. There is no place for trying to demonstrate to everyone else in court that it is your big point. One must be a team player — the role is rather like that of “super domestique” in cycling.

When one’s own witnesses are giving evidence, it is also important to maintain a calm demeanour — as if every answer given by the witness is exactly as expected. When the silk is cross-examining, the junior similarly ought not make sotto voce comments when disagreeable answers are given. If there is to be theatre, let the counsel on his or her feet be the player.

 Organisation in court

It goes without saying that there are a great many things to attend to when a matter comes to trial. The role of junior counsel is to assist the silk run the trial smoothly, efficiently and to the best advantage of the client’s interests.

The variety of tasks will vary from trial to trial, however there are many tasks that will apply in most if not all trials. The important thing is to discuss with the silk precisely which tasks are to be done and who is to do them. In that respect, take the initiative and try to compile a list of everything that might usefully be done, so that it can be discussed. The silk, with greater experience, will no doubt have views about which tasks should assume priority and, indeed, some that may be not useful at all in the case at hand.

Be on top of the documents, or make sure that there is someone in the team assigned to do this and in fact does it. It is crucial that documents are able to be turned up in court at short notice. Do not assume that the instructing solicitor can do this. Take it upon yourself to make sure that this is covered.

Maintain an exhibit list and ensure that a complete copy of exhibits is kept so that if an exhibit is asked for, it can be produced quickly. It is best if exhibits are kept progressively in separate folders. Again, this may be a task that is assigned to one of the instructing solicitors, but if so, ensure that it is being done.

Be on top of the court file list — know what court file document numbers the latest pleadings are.

Junior counsel should make it their special task to be totally on top of the pleadings. This can be assisted by having folders of all the pleadings and particulars chronologically as amended from time to time, together with a working copy of the most current pleadings. You must be able to quickly find where particular matters have been pleaded and particularised. These become important on the run, as issues of relevance of questions are, of course, to be determined by the pleadings.

Depending upon the complexity of the pleadings, it is often helpful to have a schedule of the latest pleadings, with the statement of claim (and the particulars given throughout the case), defence and reply are arranged in columns, such that each paragraph of the statement if claim is juxtaposed with the relevant paragraph of the responsive pleadings. This makes it easy to look up what has been pleaded and what particulars have been given in relation to each allegation. Sometimes, such a schedule may be something that can be provided to the trial judge to assist, either at the commencement of the trial or as part of addresses.

Maintain a bundle of court orders made in the matter. Of great significance in the lead up to the trial are the directions made as to the conduct of the trial. Directions may extend to the way evidence is to be given and the like.

One of the tasks that is traditionally thought to be the preserve of the junior is the taking of notes of the evidence. This is a task that I think has become less important over time. It was certainly more important when the facilities for quick turnaround of transcripts were not available. Some barristers will remember having done trials in the Magistrates Courts where the transcript was taken by the Clerk of the Court on a manual typewriter, using carbon paper to make duplicates. Thankfully, those days are over and transcripts are much more readily available.

Nowadays, it is often the case that there is too much to do in court to effectively take a comprehensive note of the evidence. Regularly, the junior will be looking up documents or similar, such that comprehensive note-taking is not possible. It is, however, important to carefully listen to the evidence and to try to master the art of doing that whilst performing the other tasks that are necessary.

Whilst on the topic of listening to the evidence, it is crucial to not be talking to your leader whilst a witness is giving evidence or, indeed, if the judge is speaking. This is most particularly so if your leader is examining or cross-examining. I think that it would be infuriating for a judge to see that counsel who has just asked a question of a witness is unable to listen to the answer because the junior is taking the opportunity to speak to the silk.

Similarly, don’t be ruffling papers and causing a general disturbance looking for things whilst others are trying to concentrate on the evidence or on what the trial judge is saying.

Finally, do not absent yourself from court without the silk’s approval, even to do something on the case that you think is very important.

Absence of Silk

It is nowadays rare for silks to be double-booked and to not be available at court when a case resumes. However, where a trial runs over time, or when there is some emergency, it is conceivable that the silk may be temporarily absent from court when it resumes.

How the junior handles that depends upon the circumstances — what stage the trial is at, whether in your case or the opponent’s case, whether the absence occurred with some notice and whether there has been an opportunity to plan what will occur, and so on.

Obviously, where a witness is under cross-examination by the silk, there will be an issue with the junior continuing the cross-examination, although in extreme circumstances, that may be able to be done with the trial judge’s leave.

In complex litigation, the trial judge may exercise a discretion to permit cross-examination to be arranged by issues, such that it is split between counsel for the one party.³

All that said, a junior should at all times be ready to run the case in the absence of the silk. What is more, in many cases that is what the trial judge will expect, particularly if the silk’s absence is not due to a real emergency.

It may be that the junior is very inexperienced and is simply not capable, or confident, of doing justice to the client’s interests by continuing on. The trial judge may have some sympathy with such a position and may be able to accommodate it by a short adjournment. But that should not be the expected outcome.⁴ On one view, a junior should not accept a brief, even a junior brief, unless capable of stepping in if necessary — and a client briefing a junior who is not capable of doing so takes a risk. You can with some confidence hope that your opponent and the trial judge will have some sympathy and will do whatever is reasonable to accommodate the difficulty- the order of witnesses may be changed or other matters dealt with to try to minimise any prejudice – but you cannot count on that being possible.

It is therefore important to be across the case generally and to follow carefully what is going on. A junior cannot sit back safe in the knowledge that the case is really being run by the silk and the junior is merely a note-taker and pourer of water.

Obviously, where this occurs, instructions will need to be sought as to the approach to be taken — in other words, whether to ask for an adjournment or to push on. Give the solicitors (and thus the client) a realistic assessment of the alternatives — whether an adjournment should be sought — remembering that it is the client’s interests that take precedence over junior counsel’s preference, and also remembering that counsel must be satisfied that she or he can properly discharge their duty to the court if the case is to be proceeded with.

Adrian Duffy

 Footnotes

1. Much has been written on the topic. See, for example, Glissan JL & Tilmouth SW, Advocacy in Practice (Butterworths, 1998), pp 11 ff
2. see Yates Property Corporation v Boland (1998) 85 FCR 84, 111E
3. see GPI Leisure Corp Ltd v Herdsman Investments (No 3) (1990) 20 NSWLR 15, 22F-24B; Canberra Residential Developments Pty Ltd v Brendas & Ors (2010) 188 FCR 140, [45]
4. see for example, Marsden v Amalgamated Television Services Pty Ltd (unreported, SCNSW, Levine J, 23 October 1998); Commercial Dynamics Pty Ltd v Ad-Mag (SA) Pty Ltd [1999] FCA 1038; R v Phuong Canh Ngo [2001 NSWSC 887; Wiggins v Dept of Defence — Navy (No 2) [2006] FMCA 969; cf Alstom Power Ltd v Yokogawa Australia Pty Ltd & Anor [2010] SASC 109; Lee v Keddie [2010] NSWSC 1010

Introduction

Life as a Junior Counsel can be tough.

Joining the Bar has often been compared with jumping off a cliff: it is a death defying act which requires blind faith. It can also end horribly.

Starting at the Bar today, however, is much easier than in years gone by. Life in England in the 1800s as a pupil was far more difficult. Lord Bowen, reflecting on his starting at the Bar, recorded “the white-wash misery of the pupil’s room… so bitter is the thought of it that death itself can hardly be more bitter”¹. Dickens in The Pickwick Papers warned prospective members of the Bar of “what fine places of slow torture barristers’ chambers are for the pupil: the waiting — the hope — the disappointment — the fear — the misery — the poverty”.²

Part of our task tonight is to ensure that life as Junior Counsel is not as bleak as that described by Lord Bowen and Charles Dickens. Adrian, Liam and I have selected an array of issues which we think a Junior Counsel should be aware of in order to be a “Good Junior”. We intend to avoid the type of motherhood statements that one invariably hears when attending lectures such as this: “Know your Brief”, “Be Prepared” and “Work Hard”. They are givens. It is impossible to be a good Junior without working hard and knowing the relevant facts and law. Failure to do so is likely to end in all sorts of trouble. Just ask the Junior who worked with Sir Thomas Inskip (later the Attorney-General of England in the early 1900s) who allowed his learned leader to submit to the Law Lords, during the course of argument on an appeal in which the law of gambling was an issue, that “roulette was played with cards”.³ The response from the bench was swift and devastating, no doubt like the fall from grace of the Junior.

We intended to address more specific and practical issues that are likely to be confronted by Junior Counsel as they make their way in the law. We will focus tonight particularly on the relationship between Junior and Senior Counsel. The reason for this focus is that working well with Senior Counsel is one of the most important, if not the most important, ingredient to success at the Bar as Junior Counsel. There are many ingredients to a successful life at the Bar: hard work, good relations with solicitors and good relations with the Bench. In my experience, the most important ingredient to building up a successful practice is working successfully with Silks. You will learn the most from them and are likely to get the best briefs and build up the best group of instructing solicitors by working well with them.

I propose to deal with the book ends of the process of working with a Silk. I intend to cover three general topics:

(a) When and how should you go about having a Silk retained?

(b) Dividing up work between the Silk and the Junior; and

(c) Fees and billing.

I have had the pleasure of working with each of the Silks who have joined us tonight to offer their input on what it takes to be a Good Junior. My speaking on this topic, and their presence here tonight, requires me to make a disclaimer at the start of this talk, lest I be called a hypocrite: “Do what I say, not what I do”.

When and How Should You Go About Having A Silk Retained?

The following questions should be addressed:

(a) when should you seek to have a Silk retained in a matter?

(b) how should you raise it with your instructing solicitor?

(c) who should you seek to have retained?

When should you seek to have a Silk retained?

One of the most important attributes of a good Junior Counsel is to know when they are out of their depth.

Being a successful barrister involves not only hard work, but experience and expertise. That is something that can only come with many years practising at the Bar. You cannot expect to know everything when you start off. Even after a number of years at the Bar, good Junior Counsel can still be lacking (through no fault of their own) essential skills. I think this is particularly the case with trial and appellate work. The dawning of the age of mediation has led to a situation where there are many good Junior Counsel who have been at the Bar for 4 to 5 years who, while making a reasonable living, has never run a trial.

Because of this, it is important to always consider in any substantial matters that you are briefed whether you are sufficiently experienced and competent to run the matter and whether a Silk should be retained.

Obviously, the answer to this question involves matters of judgment and common sense. The matters, however, that should be considered include (in no particular order):

(a) the size of the claim;

(b) the downside for your client if they lose (do you get the sense that they will not survive a loss);

(c) the likely legal costs that will be incurred by the client if you (with less experience) do all of the work and a Silk is not retained;

(d) the likely legal costs that will be incurred by the client if a Senior Counsel is retained;

(e) whether the claim involves any area of expertise or a judicial tribunal that you are not familiar with;

(f) the complexity of the case;

(g) the extent of examination in chief, cross-examination and likely disputes about admissibility of evidence;

(h) whether expert witnesses will need to be vigorously cross-examined;

(i) who is your opponent:

(i) do they have a reputation for being difficult and sharp or spectacularly good?

(ii) do they have Silk retained?

(j) the allocated trial Judge:

(i) do they have a reputation for being difficult?

(ii) have you previously had difficulty with appearances before the Judge?

(k) the length of, and amount of work involved in, running the trial; and

(l) other work commitments.

It is no sign of weakness that Junior Counsel seeks to have Senior Counsel retained. To the contrary, it usually reflects a proper understanding of the importance of a case to a client, the complexities of the issues involved and the fact that the amount of work involved (particularly in a trial) requires two Counsel.

How should you raise retaining a Silk with your instructing solicitor ?

A few points should be made.

First, as noted above, it should never be viewed as a matter of embarrassment or concern that Junior Counsel suggests to their instructing solicitor that Senior Counsel be retained. You should remember that the party for whom you are appearing is the client of the solicitor. It is in the solicitor’s interests to ensure that their client gets the best advice and representation so that they have the best prospects of a good outcome and thereby remain the client of the solicitor. When raising the prospect of retaining a Silk with the instructing solicitor you should make it clear that the best outcome for the client will only be achieved if Senior Counsel is involved.

Second, instructing solicitors will often be concerned about the cost of Senior Counsel being involved. It can be a significant hurdle in having a Silk retained. In that regard, you should discuss with your instructing solicitor how you and the Senior Counsel would propose to divide the work. The instructing solicitor who understands that the leg work will still be done by yourself and that the Silk will come in and out of the case as required, is more likely to be attracted to the notion of a Silk being retained. Getting a good Silk on board can be effectively cost managed and will often lead to less overall costs being incurred on the matter than if only Junior Counsel was retained. This is particularly the case when the matter involves a particular area of expertise or complexity. The experience and expertise that Senior Counsel bring to a matter can often result in dry gullies not been gone up and red herrings being averted, thereby reducing costs.

Third, it is best to raise the question of retaining a Senior Counsel as early as possible in the proceedings. Raising the prospect of getting Silk the week before the trial can often be damaging for your reputation in the eyes of the client and the solicitor. Both may well question why it is only at the last minute it is being suggested that a Silk should be retained. It may be (often wrongfully) viewed as amounting to nothing more than cold feet.

If you form the view, for example, that the matter, if it went to trial, would require Senior Counsel, you should communicate that to your instructing solicitor as soon as possible. It may be, and indeed is often likely, that the instructing solicitor will say that the client does not want to expend the cost of retaining Senior Counsel at this early stage of the proceedings. You may well be content with that arrangement. You should constantly remind your instructing solicitors, however, that any trial would require two Counsel and that if the matter proceeds to trial Senior Counsel will have to be retained. By raising the question of Senior Counsel being retained at an at an early stage, no negative inferences will be drawn.

Third , what should Junior Counsel do if they form the view that the case cannot be properly run without Senior Counsel? Can the Junior Counsel return the brief if the instructing solicitor and client refuses to retain Senior Counsel? The Barristers Rules 2011 do not appear to deal explicitly with this situation. The Converse is dealt with at Rule 99(j) which provides as a ground to return a brief the following:

“If the Barrister, being a Senior Counsel, considers on reasonable grounds that the brief also requires the services of a Junior Counsel and none has been briefed.”

It is most likely that such a situation is covered by the more general ground detailed in Rule 99(g):

“If the Barrister’s advice as to the preparation or conduct of the case, not including in its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be.”

It is difficult to see why advice from Junior Counsel that the conduct of the case requires Senior Counsel would not fall within the broad terms of Rule 99(g).

Who should you seek to have retained?

The question then arises as to who you should seek to have retained as the Silk. Again, this involves questions of judgment and common sense.

It is critical that the Silk you seek to be retained is one with whom you can work effectively with. You will hear a lot tonight about the need for good communication between Junior and Senior Counsel. Such communication will not be likely to occur unless there is a good rapport between Junior and Senior Counsel and an environment exist between the two in which Junior Counsel feels free to raise concerns with Senior Counsel.

Senior Counsel should also be selected with the type of case in mind. A case that will turn largely on credit issues will invariably require the key witnesses on the other side to be vigorously cross-examined. Choosing a Silk who is notorious for their cross-examination is undoubtedly likely be to be a good move. Conversely, if the critical issue is a complex legal proposition, different Silks may come to mind.

If you have any doubts or concerns about who you should seek your instructing solicitors to retain as Silk, consult with other Junior and Senior Counsel in your Chambers. They will no doubt be a good source of information as to who should (and should not) be retained.

The Division of Labour

One of the key reasons that Junior and Senior Counsel are retained in a case is because there is a substantial amount of work to be undertaken. Both cost efficiency and the proper running of a case requires that the Senior and Junior Counsel understand what roles they are to play in the matter and what tasks they are to fulfil.

Adrian later will deal in detail with the issues of the division of labour during a trial. My comments here are at a more general level.

The key to the successful division of labour amongst Senior and Junior Counsel is communication and expectation setting. In this regard, the Junior Counsel should seek to be pro-active. Senior Counsel are often very busy appearing in Court. Invariably as Junior Counsel you will be spending a lot more time on your case than the Senior Counsel will. You should identify the tasks that need to be undertaken and then communicate with the Silk what you propose to do. This can be done by way of a brief phone call or by sending an email to the Silk which they can read at their convenience. That type of communication will lead to the necessary discussion as to what each of you will be doing in the lead up to the matter coming on (be it an application, appeal or trial). It will ensure that everything that needs to be undertaken is attended to.

That kind of pro-active communication should extend to matters such as which witnesses each Counsel will take. It is Junior Counsel’s constant fear to hear the words uttered from the Silk “you’ll be right to take this witness” when you have assumed that the Silk would be dealing with the witness. That situation can be avoided by Junior Counsel identifying the witnesses who they can realistically deal with and proffering to the Silk that they will look after those witnesses and that the Silk will look after the remaining witnesses.

Disappointing a Silk is never a good career move for Junior Counsel. An important way to ensure that disappointment is avoided is by Junior Counsel setting realistic timeframes with Senior Counsel. Junior Counsel (especially as they get on a few years) can be very busy. If you have other work commitments which are likely to interfere with the preparation of the matter, you should communicate those to Senior Counsel so that they understand your other work commitments and the two of you can work out a realistic time frame. If you are late getting something to a Silk, do not remain silent. A short email which explains that you are delayed and when you expect to get the document to the Silk will be viewed far more favourably than deafening silence.

The division of labour should be the only division that exists between Senior and Junior Counsel. It is critical that both Senior and Junior Counsel work as a team. The Senior Counsel should have trust in you, and vice versa. Both of you should feel confident in the knowledge that each of you are looking out for each other.

That notion of working as a team is, in my view, fundamentally undermined by what has become an unhealthy, but common, practice of Junior Counsel sending draft documents (be they advices or pleadings) before they are sent to or settled by Senior Counsel.

I am at a loss as to why such a practice has developed. It is difficult to think other than that the Junior Counsel seeks to show their instructing solicitors how “smart” they are by sending the draft to the solicitor so that they can see that the document settled by Senior Counsel has been the subject of minimal changes.

I have always taken the view that you should never send any draft documents to instructing solicitors without the express consent of Senior Counsel. If both Junior and Senior Counsel have been briefed to produce a document, then it is a team effort. The document should not be provided to the instructing solicitor unless and until it reflects the views of both Counsel. If your instructing solicitor asks for the draft to be provided you should explain to them that it is not appropriate that you do so and that if they wish to take the matter further then they should contact Senior Counsel.

There are obvious problems in providing drafts to instructing solicitors. Two need only be mentioned.

First , it has the obvious potential to cause division between Junior and Senior Counsel. Clients and instructing solicitors will sometimes (and wrongly) assume that, because no major changes were made to a draft, the Senior Counsel has not turned his or her mind to the document to the extent expected or to the extent that Senior Counsel’s fees reflect. Such unnecessary conflict can be avoided by simply working as a team and ensuring that any document that is provided to the instructing solicitors is a reflection of the work undertaken by both Counsel.

Second , it avoids the potential difficulty of the Junior Counsel getting the advice or document horribly wrong. There is a reason why Senior Counsel has been retained. They are more experienced and have greater expertise in the law. It is not uncommon for Junior Counsel to have completely “missed the point”. The itemised bill from Junior Counsel, which shows that they spent many hours on a draft which the instructing solicitor knows was a complete waste of time, may not get paid.

Fees and Billing

I raise this topic with a view to generate discussion amongst the profession as to what Junior and Senior Counsel should do in terms of conferring or consulting in relation to what they will charge.

In my experience, there is no hard and fast rule in relation to whether you should communicate with Senior Counsel about what you intend to charge. Again, it is a matter of judgment and common sense. If, for example, the instructing solicitor readily briefs the Silk then it may well be wise to ask the Silk whether the fees you intend to charge are appropriate. One should always be thinking about getting the next brief from the instructing solicitor with that Silk.

Equally, I do not think that there is any hard and fast rule about where Junior Counsels’ fees should sit in terms of quantum as compared to Senior Counsel’s fees. With time based charging, working with a busy Silk on a matter will often lead to a situation where Junior Counsel’s fees exceed (and sometimes significantly exceed) that charged by the Silk. That is often the case in complex commercial matters. The Junior Counsel is doing most of the legwork and is likely to spend far more time on the case than Senior Council.

I do recommend that you consult with Senior Counsel in relation to cost estimates. Do not volunteer to your instructing solicitor how much the Silk intends to charge. Ask the instructing solicitor to ascertain from the Silk what he or she expects to be charge.

Consultation in relation to cancellation fees in relation to lengthy trials is also advisable. It is helpful to know the basis on which the Silk intends to charge in the event the matter does not proceed. This will inform your decision as to how to structure any cancellation fees you intend to charge.

Damien O’Brien 

Footnotes

1. Cited in C.H.S. Fifoot, Judge & Juris in the Rein of Victoria (1959), page 22.
2. Charles Dickens, The Pickwick Papers (1836-7), Ch.21.
3. R.E. Megarry, Miscellany-at-Law (1995), pp.49.50.