No eye contact, no spontaneity

Being tortured by your students - the trials of trial advocacy instructors ... Lessons of Sir Patrick Hastings - counsel should rely on memory not notes ... Better to observe the witnesses ... "Chris," she cried with her last breath ... London Calling with Leverhulme

Marsha Hunter and Brian Johnson are exceptional trial advocacy instructors.

They are much in demand among the big law firms in the United States. Their book, The Articulate Advocate (Crown King Books, 2009) is a best seller.

Their teaching concentrates on the physical aspects of advocacy and persuasion: how we communicate effectively and what we need to do to win at court.

Both are former opera singers. They are compelling speakers and energetic, frank coaches.

They are also married to one another.

Until recently, the stylish Marsha used to fly her own plane to teaching engagements. When she talked about the weather it had resonance.

Her great thrill is watching people improve as an advocacy course progresses. She believes a lot of it has to do with building confidence.

Brian is also inspirational, but the adage that the customer is always right can be hard to swallow for teachers.

Some time ago in Dallas, a prim, power-dressing delegate at a massive international firm who believed she had reached the acme of professional achievement at the age of 24, was asked by Brian why she stood side-on to the jury when addressing them.

"You are not looking at the people you are trying to persuade," he said.

Her reply was clipped:

"I want you to listen to this carefully. I'm only going to say it once and I'm going to say it slowly. This is the way we address juries at my firm. Do you understand?"

Brian was unfazed.  "Then I'm unable to help you any further."

*   *   *

Simons: not the f*#%@* Diet Coke ManIn England, the legendary advocacy trainer, Daniel Simons, who died earlier this year, gave much shorter shrift to such types.

He taught a two day course at the College of Law for Clifford Chance.  At the end of the first day he asked the class if there were any questions or problems.

"More of a problem than a question," said a haughty young miss.

"Give it up," replied the professor who, if you needed to ask, was also American.

The young English lawyer was clear.

"The Diet Coke in the drinks machine is not fizzy enough and I'd like you to have it sorted out by the morning."

"Are you serious?" he asked and the room fell silent.

"Yes," she said.

"Hey lady, "said Simons to rising outrage, "Do I look like the fucking Diet Coke Man?"

*   *   *

Marsha and Brian: why are all the barristers taking notes?Brian Johnson and Marsha Hunter went to see a trial at the Old Bailey last week. Someone was up for attempted murder.

Despite conventional wisdom, Americans, like Australians, can be sensitive. The pair was keen to make sure they would teach things in the UK that did not conflict with local customs.

After the Bailey, they were concerned and had a question for me.

"Is it the practice in English courts that the advocates take notes of everything that is said, even when there is a court reporter there?"

During the trial they had noticed that both counsel, while cross-examining, wrote down every answer.

"In fact, everyone had their heads down," they said. "There was no eye contact and no spontaneity. Is this how they do it here?"

Unfortunately, it is widespread and catching. It has always been the case that average barristers copy even one another's bad habits. It makes them feel safe.

But getting it onto the record is now more important that persuading the court.

*   *   *

Avory: later "hanging judge Avory"However, for Marsha and Brian reassurance was at hand and I told them about Sir Patrick Hastings (Leverhulme, January 29, 2008).

Young Pat was desperate for a position in the chambers of one run by Sir Horace Avory. Horace didn't take pupils and the interview was tough.

Hastings said he could be useful by making a note on Horace's briefs. Avory's reply was crushing.

"No-one but a fool ever makes a note on his briefs, so why should he want someone else to do it for him?"

Hastings, who got the job, became a legendary cross-examiner. He prided himself on never making a note.

He never allowed his pupils to do so either. He relied entirely on his memory (The Autobiography of Patrick Hastings, Heinemann, 1948).

He summed up late in life. (Cases in Court by Patrick Hastings KC, Heinemann, 1949.)

"Some counsel even prepare notes for their cross-examination. Oh how I hate those notes! If you can't remember the details of your case without notes, you must have a very bad memory."

Patrick Hastings: hated notesHe added:

"Some spend the time during which the witness is being examined in laboriously writing down every word he is saying. Without realising that they are wasting the golden opportunity of studying the witness himself."

And that's just the examination-in-chief. What would Pat have made of counsel writing down the answers as they cross-examined?

Mind you, it's not a tall order.

If they are cross-examining well, most of the answers should be, "Yes".

*   *   *

A chap called Higgs was potted this week for at least 15 years by Judge Andrew Gilbart QC.

Higgs knifed some unfortunate lass he had met on Facebook.

She urged him to greater passion during the act of coition.

The device she used was to scream out "Chris". Not unreasonable, you might think.

But Higgs's first name is Gary.

In sentencing Higgs, Judge Gilbart put it with some skill into lawyer-speak.

"It seems you were overcome by your view that she could still be interested sexually in others and be as readily welcoming to conduct an affair with others as she had been with you...In my judgment this is a case of an unreasonably possessive man killing his lover in a rage." 

What powers of observation you have, your Honour.