When Behan, Rose and Selby set up this blog we were all practitioners turned academics. Taking practice into the Academy seemed like a good idea. It is that, though funding problems for schools and their students, on line teaching and learning, and the ever present cry to 'do more with less', thwart the ambitions to adequately prepare today's students for tomorrow's practice.
Some 18 months ago Selby quit his tenured position and headed back to practice, about a quarter century after he'd left it. Much has changed but the fundamentals of being persuasive, though brightened by the micro chip and touch screens, are as important and as overlooked as always.
The order of what follows reflects the significance of the issue to Selby's practice rebirthing. Readers should impose their own order upon the material, reflecting upon their experiences.
Strategy - the skill of making a choice about what path to follow, with what resources, and how best to deploy them- is so often missing from the court room. Gathering the evidence, finding the law is not strategy. Those are the supply tasks that precede the questions: What can be done? What will be done? – a 'why' question; When will it done? – a matter of adroit timing. How will be it done? – a response to the atmospherics.
Handling witnesses and opposing lawyers – I'm predisposed to giving anyone the benefit of the doubt once. Once that benefit has been 'used up' then I progress to a detached firmness, followed by a ruthless streak behind an impassive mien. An example – an insufficiently experienced prosecutor who likes to win at all costs slips up. We (client, instructing lawyer and I) take advantage – something we would not have done if she'd behaved professionally. I confess that we more than take advantage, but I do it with a smile.
Handling judges – it's impossible to fully grasp the advantage of being the same age cohort as the judge until that time arrives. It's so much easier to distill the real wisdom from rubbish dressed up in the trappings of power. Some things though are timeless: be seen and heard to be competent (as that is so welcome on the bench); be efficient in questioning and submission; be polite – even to those who don't deserve it; and, try to turn the judicial quirk to an advantage.
Flexibility – the written list of questions (each and every one), the scripted opening or closing address, oh how I welcome that in my opponent. Such people are unable to respond to the unexpected. Recently I watched a prosecutor's closing address to the jury. So boring. I watched the jurors looking all over the place. The prosecutor saw only his notes. I went out for coffee and to answer some emails. I came back. Still boring, some jurors sleeping. He stopped at last. The defence rose from the other end of the bar table. He had the interest of all jurors before he reached the lectern in front of the jury rail. His 'notes' were a few dot points. He engaged his audience, all the time. The jury quickly acquitted his
client.
To those who are note bound with their questions remember just this: most of the 'fuel' for your next question is in the answer just given. Hence you cannot know your next question until you have processed the answer to which you should have been paying close attention.
Think laterally – there's often an angle that hasn't been seen by others. Stand back from the 'story' and look at it from a range of standpoints. Always give your clients and their witnesses encouragement to do the same. So often someone makes an 'off the cuff' comment that shines a light on something that was previously unseen.
When a client has supporters put them to useful work. Make them valued members of the team.
Be a good public loser – it's an adversarial system so you win some, you lose some. Be pleasant to your winning opponent, be gracious to the judge, debrief you client without rancor, and then go to the gym to sweat all the bile. That way your family are spared (some of, most of, all of) your resentments. Learn from every loss, just as you should from every win.
Keep perspective – it's important to the client but it's one small case in a huge system. Even if the media seems interested that is so transient . Lose a sense of objective perspective and you can adversely affect how you are seen in future cases.
Hugh Selby © July 2015
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