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
- Much has been written on the topic. See, for example, Glissan JL & Tilmouth SW, Advocacy in Practice (Butterworths, 1998), pp 11 ff
- see Yates Property Corporation v Boland (1998) 85 FCR 84, 111E
- 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]
- 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
