‘Sam and Ralph’ – The Role and Practice of Counsel in the System of Justice

The graduands of the Bar Association’s Bar Practice Course #82 were treated to an entertaining and erudite address from Justice John Bond on the evening of completion of the course. His Honour provided a very practical and useful perspective to those about to embark on a career at the Bar, from someone whose career has spanned over 40 years in all parts of the legal profession. The address, entitled “Sam and Ralph”, was warmly received (you will have to read it to find out the genesis of the title). His Honour provided useful guidance and many tips for those about to commence practice at the Bar, but also reminded more experienced practitioners of many integral aspects of practice, including the high importance of courteous professionalism. His Honour’s observations will repay frequent reading.

We are, you and I, at opposite ends of the spectrum of a career in the law.

You sit before me at the start of your journeys. 

On the other hand, I have done 2 years’ articles; a year as a solicitor; a year as an associate; another year as a solicitor; then at the bar I was a junior for 12 years, a silk for 16, and I have now been a judge for almost 10 years. 

So I stand before you, not that far from the end of my career in the law. 

I’m happy in the service.  I love what I do.  I find my judicial role to be both challenging and fulfilling.  It is one of the things which gives meaning to my life. 

But, next week, I turn 64.  Only 6 more years, and I face compulsory retirement.  I’m not looking forward to it.   

What then can I offer you from my present comparatively ancient vantage point? 

I gave some consideration to calling this presentation “Stupid things I have done, and how you can avoid them.”  There certainly would have been plenty to talk about on that front.  Many of your lecturers and others here present have known me long enough to attest to that conclusion.  That presentation would have been entertaining for you, but I think too embarrassing for me. 

Instead, what I think I’ll try to do is to encapsulate a miscellany of what I see as the most important lessons I have learned from my career in the law.  Not all of them will resonate with all of you.  But my hope is that some of them will and, if they do, you remember them somewhere down the track and use them for your benefit. 

Let me start by explaining why I named this presentation “Sam and Ralph”.

Sam Sheepdog and Ralph Wolf were characters in Warner Bros’ Looney Tunes and Merrie Melodies cartoons when I was a kid.  The cartoons are still being shown and, at least according to Wikipedia, still being produced.

Sam and Ralph seem to be good friends.  Each morning, they meet up on their way to work, apparently chatting amiably: “G’day Sam”, “G’day Ralph”.  They clock in at work and go about the business of the day.  Sam’s job is to look after his flock of sheep. Ralph’s is to get the flock of sheep.

After they both clock on it all kicks off.  Ralph engages in various dastardly plans, often involving Acme Corporation products just like Wile E Coyote, with a view to getting his hands on the sheep.  His plans, comically bizarre, invariably end in failure and usually with Sam knocking him out with a single punch.   

The beauty of the cartoon is that at the end of the day, when the stop-work whistle blows, and even if Sam’s huge fist is about to connect with Ralph’s head, Sam and Ralph immediately stop what they are doing.  They go and clock out and head home, again chatting amiably.  The night shift, Fred and George, clocks in.  And the next day it starts all over again.

… it is a pretty decent metaphor for what barristers do and how they should do it

Although Sam and Ralph are shown as blue-collar workers just doing their jobs, I’ve always thought it is a pretty decent metaphor for what barristers do and how they should do it. 

Whilst criminal trials do not descend into actual combat, nevertheless counsel for the Crown and counsel for the accused are real adversaries.  It’s no longer the case that the accused’s life is at stake, but the accused’s liberty and reputation may well be.  The same may be said of civil process.  Counsel for the opposing parties are real adversaries, conducting a real fight, where the stakes are often high. 

But when the fight is over, it’s over. 

Let me share a story.  When I was in practice, Bob Holt and I were silks who each developed reputations as leading silks in building and construction disputes, including arbitrations.  Bob is almost 2 metres tall.  I am more sensibly sized.  We were often opposed to each other.  He tended to represent government and institutional clients, and I tended to represent claimant contractors.  One day, when my wife was the president of the Institute of Arbitrators, someone approached her at a function and surreptitiously asked her whether it was true that Bob and I really hated each other, as he had heard.  Rowena thought the question was hilarious.  When she later told me, I couldn’t wait to get back to chambers to give Bob a call.  The truth was the opposite: we were mates.  And when we weren’t opposed to each other, we often used each other as sounding boards for various legal propositions or constructions of contractual clauses.

And that is the first lesson.  Although you and your opponent will be adversaries engaged in civilised combat on behalf of clients and often for high stakes, never let it get personal as between the two of you.  Often, you will actually be friends with your opponent.   But even if you are not friends, you should try to emulate the conduct of Sam and Ralph.  When the fight is over, it’s over. At least for that day.

Of course, comedic combat metaphors aren’t the only appropriate metaphor for what you will do and how you should do it.  There are many metaphors deriving from competitive sports, especially contact sports.  Let me develop another one.

When I was at school I played rugby.  Badly.  For a few years after school I kept playing, still badly.  My friend Les, however, played rugby well both at school and for a few years afterwards.  He was a breakaway.  One day he was telling me about a big match he had played in where he had put his hand down for balance as he packed in at the side of a scrum.  The opposition prop took the opportunity to stand on his hand.  I thought that was pretty poor conduct, but Les reacted more calmly telling me “Bondy, you get a bit of niggle in a big game”.  He just ignored the incident and played on.

That’s my second lesson:  you get a bit of niggle in a big game, but don’t let it distract you.  Play on.

In your case the big game is the civilised combat in which you are engaged on behalf of your clients.  There are rules which govern how the game should be played, how that fight should be fought.  But apart from the strict rules, there is a spirit in which the game should be fought.  You should behave professionally and with courtesy.  To continue the sporting metaphor, you should play the ball, not the person.  There should be no arguments ad hominem where you attack the character, motive, or some other attribute of the person making an argument rather than addressing the substance of the argument itself.

But we don’t live in a perfect world.  It’s a human system.  The people within it are imperfect.  Things can get very tense.  Tense for the client, tense for you, tense for your opponent, and even tense for the judge.  Sometimes tempers will flare, intemperate things will be said, perhaps by your opponent, perhaps even by the judge.  Sometimes you will be the culprit. 

It’s a big game, and that means you’ll get a bit of niggle.

The point of saying this to you is so you can recognise that the poor behaviour you might encounter is often only a reflection of the stress of the fight you are in, possibly even of the stress of some other fight about which you know nothing.  If you understand that, you will find it easier to cope with the niggle when it happens.  In most situations what you should do is to try to understand where the behaviour is coming from then simply suck it up and move on.  And if you are the one who is at fault, you might want to consider recognising your poor behaviour, apologising when appropriate, but then forgiving yourself and again, moving on.

One tip I can give you.  When an opponent’s behaviour has upset you, go back to your chambers and debrief with your colleagues, especially your more senior colleagues.  Get it off your chest.  Curse your perfidious opponent to your heart’s content.  Perhaps your colleagues will commiserate with you about their own bad experiences with that person.  Perhaps they might even give you a perspective on what happened, which conveys to you that it wasn’t as bad as you thought.  Or even that your assessment of the behaviour about which you were complaining might have been wrong and you are overreacting.  You’ll find debriefing with your colleagues, especially more experienced colleagues, helps. 

And if it’s a judge’s behaviour that has upset you, do the same thing.  Just don’t do it in public or in front of your client: that’s not just unprofessional, it’s probably a contempt.     

Try to be part of the solution

On the subject of dealing with judges, my third lesson to you is an advocacy tip.  “If you are not part of the solution, you are part of the problem.  Try to be part of the solution.”

I must be a slow learner because I did not really come to understand this until I had been a silk for a couple of years.  I was brought in as part of the team for one of two defendants involved in a massive case which Chesterman J was managing towards trial.  Our team comprised Pat Keane QC and John Sheahan QC and a host of juniors.  I was brought in as the third and most junior silk to perform a specific role.  The proceeding eventually ran all the way to judgment, the trial taking of the order of 100 days.  It was a really hard gig.

My anecdote however concerns an interlocutory skirmish which I was briefed to run against the plaintiff a few months before the trial was scheduled to start.  I can’t remember what remedy we were seeking but it involved me making a mountain out of a molehill concerning some aspect of what we said was the plaintiff’s bad behaviour in the progression of some interlocutory steps.  In the grand scheme of things what I was complaining about really didn’t matter.  But what I do remember is that after he had heard my diatribe, Chesterman gave me a pained look and said “Mr Bond, I’m just trying to get this thing ready for trial.” 

And that brought it home for me.  He was just trying to do a job, namely, to bring the squabbling parties to the trial by the then scheduled trial date.  One way or the other he was going to do that, come hell or high water.  The way I had framed the application was to create an obstacle.  It was part of the problem.  If I wanted to get anything out of the application, I should have framed it in such a way that the relief I sought was part of the solution to his problem. I had not, so I did not achieve what I wanted.

… you get more flies with honey than you do with vinegar

How should this inform what you do?  Well, its straightforward.  Judges are just people like you, albeit with 20 or 30 years more experience.  On any particular day in which you appear before a judge, she or he will have a job to do, a decision to make, a solution to find.  Put yourself in the judge’s shoes.  You want to have a clear appreciation as to what that day’s problem is for the judge.  Then you want to frame your behaviour and your submissions in a way which the judge will see as assisting them, that is in a way which will be seen by the judge to be part of the solution to the judge’s problem of the day.  Obviously, you want to assist in a particular way so that the solution favours your client.  But you will find that you get more flies with honey than you do with vinegar.

While I’m on this topic, can I identify for you two aspects of the judicial role, the difficulties of which I at least had completely underestimated when I was a barrister. 

First, it is quite difficult to get on top of an unfamiliar factual framework quickly.  I found this out when I was a judge in the trial division and started sitting in applications.  You get a 10-page submission from one side.  A similar submission from the other side.  Possibly also a reply submission.  You read them over the course of, say, 20 minutes.  It’s the first time you’ve ever dealt with these parties or the details of their particular fight, yet as soon as you have finished reading, you are expected to engage sensibly with two advocates who have been living with the problem for days and are completely immersed in its detail. And in the ideal situation, you are trying to give an ex tempore judgment.  All I can tell you is that it’s a lot harder than it looks.  So, if you want to be part of the solution, recognise that difficulty and find a way to simplify the complexity such that your proposed outcome is the more obvious solution.

Second, fact finding is hard.  That’s why when the opportunity came for me to change to appellate work I jumped at it.  Trial judges do not get some magic amulet which enables them to determine whether a witness is credible and reliable and should be believed over another witness.  Demeanour has some but relatively minor relevance, but what usually gives greater assistance is the identification of consistency or inconsistency between a witness’s testimony and other evidence which is likely to be reliable e.g. contemporaneous texts, emails or correspondence; objectively established facts; facts which are not in issue; or the evidence of independent or disinterested witnesses.  If you want to be part of the solution, give the judge the ammunition to make the factual findings you want.   Do not do what sometimes I have seen in transcripts of a multi-day trials in the District Court, where some incompetent counsel merely advances words to the effect “well having seen the witnesses your Honour will be in a position to determine that my witnesses should be accepted” and then moves on to why they should win if their witnesses are accepted.   That is hopelessly inadequate. 

Can I now move on to a couple of other things I want to say to you about how to behave in the conduct of your work.

You will have been taken to various aspects of the Barristers’ Conduct Rules at various times during the course you have just completed.  I don’t want to repeat any of that.  But I do want to say that courteous professionalism is not something to which you should aspire merely because it is required of you by those rules.  My next lesson to you is this: behaving with courteous professionalism is in your own self-interest.  That is so for two reasons: first it will help you in your relationship with judges.  But, second, it is the most effective way of advertising and getting more work.

… avoid the snark

As to the first point, you will by now have been told that in correspondence and submissions, you should avoid the snark.  Remove the adverbs.  You will have been told that judges hate that sort of stuff.  I’m here to tell you that what you have been told is true.  We do.  But the reason we hate it is that it’s usually a distraction.  To continue on the point I have already made, it’s not helping us to solve the problem of the day.  If we have to interfere with a cross-examination because counsel is being rude and unfair to a witness, then we have been distracted from understanding whatever real point counsel is seeking to make.  And the same applies where we effectively forced to referee between squabbling opponents.  It’s a distraction from the main game.

As to the second point, and this is where your self-interest really comes in, is this.  The best way of advertising is to be so good and so professional that your opponent’s instructing solicitor or your opponent’s client will want you next time. 

As counsel I have seen opponents win cases but having made such pigs of themselves on the way through, that my solicitors have formed the view that not only would they not ever brief the winning counsel, but they would take it upon themselves to ensure that no-one else in their firm would ever brief that counsel.   

On the other hand, I have also definitely seen (and heard of) the converse.  Cases where winning counsel has operated to devastating effect, but on the way through, displayed courtesy to the opponent, to the opponent’s solicitor and to the opponent’s client.  Funnily enough within a few days or weeks, they have received a brief from the opponent’s solicitor or client on some other matter.  I have been left in no doubt that the manner of the win was causally related to the latter outcome.

You should try to remember that.  Never confuse mindless aggression with competence.  To repeat, courteous professionalism is not just your duty, it serves your self-interest. 

My next proposition is just as easily understood, but, bizarrely to my eyes, still sometimes breached by advocates.  Even if you are the smartest person in the room, don’t behave that way.  It is discourteous to your opponents and the judge. And it is unhelpful.  No one likes being talked down to or being made to feel inferior.    

I once presided over a case in the trial division which involved a taxpayer’s attack on the validity of assessment decisions for land tax.  The taxpayer ran a constitutional argument against the validity of a section of the Taxation Administration Act, and, accordingly, of the assessments.  It sought to persuade me, first, that when the Act conferred jurisdiction on the Commissioner for State Revenue for the issue of assessments and the determination of objections it was conferring judicial power on the Commissioner and, second, that conferral of jurisdiction was void on Kable grounds because, the taxpayer contended, State Parliaments could not confer judicial power without also conferring a proportionately regulated right of appeal to the State Supreme Court and, third, the Act had not conferred such a right.

Bret Walker SC represented the taxpayer and ran those arguments.  Bret was and is one of Australia’s leading constitutional lawyers and High Court advocates.  Other very good and very experienced senior counsel represented the other parties.  Without any disrespect to them or undue humility on my own part, Bret was undoubtedly the smartest person in the room.  Yet you wouldn’t have known that from the way he ran his argument.  When in the course of argument, I expressed some heretical proposition concerning the constitution, Bret gently pointed out my error and brought me back to a proper consideration of the issue.  It was a real lesson in advocacy.  I enjoyed the whole thing immensely.  He didn’t win the point, but then he didn’t expect to.  He was trying to set up a test case that he could take the High Court.

I have seen different behaviour by advocates, where they have talked down to judges.  It is amazing to me.  It never works.  Truly, if you behave like that, I don’t know what’s going on in your head.

You will have occasions when you think you are more knowledgeable than your opponents or even the judge on some particular issue.  But don’t let it show.  You will be far more persuasive if you take that approach.  And, from a self-protection point of view, sometimes you will think you are the smartest person in the room, but you will be wrong.  Much less embarrassing to reach that realisation if you haven’t already made a pig of yourself.

… all have had a touch of imposter syndrome

And look, I don’t know any of you at all.  Perhaps some of you will be the next Susan Kiefel, or Stephen Gageler, or Pat Keane, or James Edelman.  But chances are you are not. Like the rest of us, you probably will not always, or even often, be the smartest person in the room.  You will have doubts about your own abilities.  But that’s not necessarily a bad thing.  I can give you the comfort of knowing that the most brilliant people I have known, people who must have known that on any objective assessment they were not only competent but actually very good, all have had a touch of imposter syndrome.  That is, they all had a bit of self-doubt in their own abilities, despite evidence to the contrary. 

Whilst you do have to have a healthy ego to do this work, and you can’t let yourself be crippled by self-doubt; I don’t think that a touch of imposter syndrome is a bad thing.  It helps you avoid arrogance and self-satisfaction.  And it operates as a driver in what should be your never-ending pursuit of excellence.  Cultivate that, not hubris.

The final thing I want to say to you is to encourage you to recognise the importance and worth of your role as a barrister.  By this I mean that you should appreciate that in your journey you will play an important part in maintaining the rule of law.  There is a real societal benefit which flows from your choice of a career in the law. 

Of course, one aspect of the worth of such a career is that it will, hopefully, provide the means by which you will provide for yourself and your family. There is merit and self-esteem to be found in that basic proposition. Its worth should not be underestimated.  But in truth the same can be said of any form of remunerative work, whether that of labourer; tradesperson; surgeon or scientist.

Those of us in the law have, or should have, higher aspirations than merely earning a living. Barristers’ work helps their clients, some of whom might call for the barrister’s services at the lowest point in their lives. And at the most abstract level, barristers are not just workers for themselves or their clients, but workers who contribute to the rule of law. 

There is worth in a society governed by the rule of law.  Society cannot be governed by the rule of law unless there are laws. And laws are of no use unless they are applied, interpreted and enforced.  Those of us in the law, one way or the other, help to make laws and help to apply, to interpret and to enforce them.  We all play a part in the dispensation of justice according to law.

This is a real societal good.  Never forget that.  Our system of the rule of law isn’t perfect by any means.  But it is better than the alternative.  It is not overly dramatic to observe that there are plenty of present-day examples of societies which are not governed by the rule of law, but which are governed by raw power, usually out of the barrel of a gun.  Barristers’ work helps our society avoid that outcome.

One of the most eloquent statements of the same conception which I have ever read was made by Robert Bolt in his play “A Man for All Seasons”.  The play is based on the historical events leading up to the execution of the great English saint and jurist, Sir Thomas More, the 16th century Lord Chancellor of England.  I recommend the magnificent 1966 cinematic version of the play featuring Paul Scofield as More. 

The statement I am thinking of occurs when More is talking to his future son-in-law, William Roper.  Roper seeks to encourage More to use the power of his office as Lord Chancellor to arrest the dastardly Richard Rich, an ambitious weasel of a man planning to do harm to More, contrary to, in Roper’s view, God’s law.  More resists the suggestion, arguing that if Rich has broken God’s law, then God could arrest him, but he, More, would not, because Rich not broken any law.  The passage continues:

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

I’m no Paul Scofield, and my reading of the passage can’t do it justice.  But on any view, it is stirring stuff.

I acknowledge that it might be difficult to remember such lofty ideals when you are toiling in some far-flung Palais de Justice presenting a sentence submission on behalf of someone who has pleaded to a minor common assault.  Or, as a junior slogging your way through days and days of transcript trying to find some jewels for cross-examination or closing submissions, in a case where no-one is really the good guy.

But my point is nevertheless real.  By playing your part in the system, you help the system work.  And it is worth doing so. 

And even if you can’t see any immediate or direct objective good in what you are doing, can I pass on the substance of some advice which the great Sir Gerard Brennan gave me when I was his associate in 1985. 

Even if you can’t immediately see that the performance of your professional role is achieving anything objectively worthwhile, anything which you can regard as something useful for society, just keep going.  Hone your skills, get as good as you can, earn as good a reputation as you can.  Eventually you will be given a role or an opportunity to do something which you can regard to be truly worthwhile and meaningful. 

For me, his Honour was right.

Of course, in the process of honing your skills, sometimes you will be Sam, winning the day with a devastating blow, but sometimes you will be Ralph, the recipient of that blow.  Which you will be on any given day will often be outside your control no matter how brilliantly you perform.  But the thing to remember is this: whether you are Sam or whether you are Ralph, it really is how you play the game that matters.  And at the end of the day, you’ll find that playing the game has been worth it.

And on that note, I’ll stop.  It’s now over to you.  Good luck in your careers.  I hope to see you in Court.