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
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