Selby on the Magic of Atmospheric Advocacy

It’s Soccer World Cup time.  Every mis-directed kick, every off side, every fumble, along with every magic moment – caught in the moment to be dissected, wept or laughed about by commentators and fans. Soccer is just one sport among many that shows our love for venting passion and being entertained.

There’s plenty of passion in courtroom trials, at home and abroad. It’s often ‘make or break’ for the parties.  And as for the entertainment:  have you noticed how much attention the media pays to any trial where journalists are in the dock?  Or to those trials where a tall poppy seems likely to be cut down? Or those trials where the sheer magnitude of the criminal activity – be that war crime, serial killing, ripping off a bank, massive pollution, draws the media like predators to the smell of blood. Think of the current English trials of the former News of the World staff, and those of the aged entertainers who, it is said, repeatedly groped.  Think of Egypt and the Al Jazeera journalists.  Think of China, and on it goes.

But can you remember even a paragraph of recent, informed, quality mass media critique of court room advocates whose shortcomings and strengths in court lose and win cases that affect personal liberty and business viability?  More likely is a silly, adulatory comment about how some mediocre advocate monstered a witness, that witness already being destroyed by the known facts. Let’s face it, if we’re serious about getting informed media comment about trials then we need to provide more journalists with the critical skills to do that job.  There’s an opportunity for NITA here.

Of course, once we do that then the cat will be right out of the bag. Better trained media will quickly appreciate that the tedium of so many trials reflects the poor quality of play.  And why is a trial – that real time investigation of past human activity that is so important to the parties - so tedious?  Alas, there is no reason to improve: the advocates are content with things as they are; the parties who have a good enough knowledge of the rules of their favourite sport and the experience to distinguish good play from bad, they have nothing with which they can evaluate advocacy performance.  There are no replays, no panel discussions, no open market in which advocates are traded, not even training sessions where ‘form’ can be assessed.

There is much more poor trial advocacy than there is good trial advocacy.  As evidence of that I had more than 1000 recent law graduates, over a dozen years, observe criminal hearings around Australia and assess the advocacy that they saw and heard using well-accepted criteria.  Good advocacy never accounted for better than 20%. This is the inevitable result of playing a game in which the rules receive a lot of attention, but the actual play barely any.  Sports journalism seems to bring plenty of informed criticism. Witness not only the soccer World Cup, but any weekend reporting of all top level sport.  Not so advocacy. 

Certainly there are some deservedly well-known trial advocates, but more media attention is likely to be paid to celebrity lawyers, people whose undoubted self-promotion skills are not matched by their court room skills.  What’s more, at public inquiries (especially those that ‘show case’ corruption), all too often the media is duped by the atmospherics into thinking that is was an advocate’s skill that brought the witness unstuck.  In truth it was the dogged determination of backroom investigators searching and revisiting records, and interviewing ‘minor’ witnesses that sets up the witness for the fall from grace.  As they enter the witness box it is not a question of will they fall.  The questions are how soon, how far, and with how much finesse by the advocate. The answers, alas, are likely to be: too slowly, not far enough, and not much.

Court rooms are performance spaces.  Advocates are players in a high stakes game.  I wonder what odds the bookmakers took on the outcome of the ‘News of the World’ phone hacking trial? It’s not a pure ‘intellectual game’ in the nature of chess, because the witness pieces in this game are sentient and unpredictable. It’s not a pure physical game in the nature of a ball sport, because the advocates can only oscillate around a fixed point in the court room.  It is, however, a game that shares with those other games the attributes of rules, procedures, and that indefinable but very intrusive element that is ‘the atmosphere of the time and place’.

It’s surprising how so many experienced advocates are blind and deaf to the atmosphere of a trial, the more so when these same advocates will talk at length about the excitement of a live concert over a recording, the thrill in being at the stadium over the comfort in front of the TV, even how ethnic food eaten in its traditional locale has something that cannot be captured elsewhere.

The High Court of Australia has recently introduced timely and free audio-visual recordings of its hearings, along with pre-hearing online access to the parties’ written submissions. It’s instructive to be able to see and hear the best appellate advocates ‘persuading’ benches of five or seven. To watch and hear an exchange between an advocate and one or two of that bench is to appreciate how law is shaped by sharp intellects at work within a complex array of stated and unstated beliefs.   Traditional transcript is a very poor substitute, so obviously so that it’s worth pondering when Courts of Criminal Appeal will naturally prefer excerpts of the audio tape to the transcript:  reviewing the bare written words without the benefit of the accessible ‘live’ context is unnecessary blinkering.  Timing, pause and tone convey much meaning in witness questioning and judicial directions – none of those being accessible on transcript.

By the way, the ready availability of the parties’ written submissions, along with the audio visual of their oral argument is proving to be a boon to law student learning.  Let the students read the submissions, watch the oral subs, ask them to draft the court’s decision, mark their effort, and then let the Court have the final word when it hands down its decision.

Now, back to atmosphere and why advocates need both to pay attention to it and employ that knowledge in their advocacy.  Advocacy ‘brilliance’ is more than the words uttered or written.  It is the timing, the variable voice speed, the changing tone, the use of silence, the correct feel for what the audiences (judge, judges, jurors) are wanting, the deft control of a witness, achieving the right balance of legal principle and evidential fact, not merely understanding the atmosphere in that courtroom, but being able to manipulate it to aid the persuasion. We can see this in the different environments of a defence and prosecutor cross in a criminal trial.

Atmosphere is ever present. In a sexual assault trial the tone, the vocabulary, the innuendo that arises in the evidence of the alleged victim all goes to atmosphere. When the defence begins its cross it better be aware of whether the starting atmosphere is one of fact-finder belief or latent disbelief of that alleged victim. The defence is exploring possible gaps in the prosecution case and seeking to have the fact-finder decide that those gaps are wide enough to entail that the prosecution cannot prove its case.  At least in the early stages there is likely to be seeming changes of fortune between the two sides as pieces of evidence, and the value of individual witnesses is chipped, dented, and – just occasionally – destroyed by the defence’s cross-examination.   The defence will sound and look ‘up beat’.

An accused gives evidence at trial when the prosecution case is so strong that if the accused fails to give evidence then the calculated guess of the accused’s advocate is that the fact-finder will find the accused to be guilty. From the  defence perspective ‘up beat’ has come and gone. Once the accused gives evidence then the prosecutor gets the chance to cross-examine them.  If the accused is a strong witness and the prosecutor is a weak cross-examiner then the miracle of an acquittal may follow.  If, however, the prosecutor bests the accused then the fact-finder’s decision to bring back a guilty verdict is made easier with each exchange that the prosecution wins.

Thus the dynamic when a prosecutor cross-examines is inherently different to the earlier defence cross-examination of prosecution witnesses. The prosecutor only gets to cross because the die of guilt is well cast.  It can be summed up as, the defence cross makes and pokes at holes, but a prosecution cross spreads icing.

Just to drive home how important ‘atmospherics’ really are, how such atmospherics can overcome ‘objective’ fact-finding, recall Senator Joseph McCarthy and the hearings before the infamous House Un-American Activities Committee.  At the more ‘local’ level recall Gaines’  ‘A Lesson Before Dying’ or Harper Lee’s ‘To Kill a Mockingbird’.

For ‘brilliance in cross’ we must look, nearly always, to defence cross-examinations of prosecution witnesses. Having the jury see the confident ‘eye witness’ as unreliable, the alleged victim of a sexual assault as a guilt ridden, or publicity seeking exaggerator, a police officer as error prone, an expert as unreliable – those are cross-examination journeys that require mastery of the atmosphere, imagination, a flair to take advantage of the unexpected, exquisite timing, and the ability to draw the fact-finders deep into the defence’s unfolding story.

© Hugh Selby

June, 2014