By Alexander Chandler KC
Barristers who sit part-time as judges gain several advantages: an insight into the workings of the court system, an understanding of the pressures of time when judges are over-listed, and, above all, a box seat in terms of seeing what works and what doesn’t work as advocacy.
I have sat part-time for a decade; initially as a deputy district judge in the county court; latterly as a recorder in the family court. The experience has been broadening and extremely useful for my ‘day job’ as a barrister specialising in financial remedies on divorce. In my view, there are three main lessons from the bench:
- Keep it short;
- Be reasonable;
- Show don’t tell.
The first two will hopefully be self-evident.
Keep it short
One of the common threads that run through the Civil Procedure Rules, Family Procedure Rules and Criminal Procedure Rules is that documents (statements of case, position statements, skeleton arguments etc.) should be “concise”. In some situations, page limits are prescribed (e.g. FPR PD27A, §5.A.1; CPR PD 52C, § 31(1)(b)). This is for good reason: judges do not have the time to pore over prolix and unstructured documents, particularly when if they have been filed in relation to a short hearing in a busy court list.
The best documents are those that start by summarising the issues and the parties’ positions, so that the court knows from the outset what the hearing is about and what issues have to be determined. The worst ones are too long, fail to get to the point until several pages in, and ignore a point put most clearly by Richard du Cann QC in ‘The Art of the Advocate’:
“It is the judgement of the advocate and not the client which must be exercised in the conduct of a case. He is a representative and not a delegate”[1]
While that lesson is easier stated than put into practice, given the demands and expectations of lay clients and instructing solicitors, one should always have in mind that the main purpose of a position statement or skeleton is to advance one’s case with the court and not to please one’s own side or irritate the other party. That main purpose is not served if it takes the court an unduly long time to read through counsel’s magnum opus and to tease out the issues. The point, which has been made in academic studies into the divergence of sentencing during the working day (the ‘hungry judge’ effect), is that judges are human and may react with irritation by the way in which case is put, regardless of its merit.
Be reasonable
As a junior barrister I was taught a valuable lesson by my leader in a case: always be reasonable. You win cases by being reasonable and by seeking to persuade your tribunal, rather than taking a strident and unyielding position. I cannot emphasise too strongly how impressive it is, when sitting, to have an advocate make a sensible concession, either in writing or orally, to acknowledge that the court may find the evidence lacking on a particular point, or that an argument involves a very steep climb.
I don’t know why this works so well. It may be that judges appreciate honest submissions (which can confer a ‘halo effect’ on the advocate’s other arguments); or it may be that judges appreciate being treated by counsel as intellectual equals, as opposed to passive sounding boards for submissions which are put with equal force (regardless of whether they are good or bad), seemingly in the advocate’s hope that one or another will stick. Far better in my experience for a barrister to recognise weaknesses where they exist, rather than taking an entrenched and unrealistic view.
Show Don’t Tell
The third lesson is one of the adages of good creative writing – ‘show, don’t tell’. In the context of screenwriting, writers are encouraged to show or dramatise character traits rather than flatly stating them in dialogue. Or, as Anton Chekhov is reputed to have said, “…don’t tell me the moon is shining; show me the glint of light on broken glass”.
In a legal context, an advocate who ‘shows’, sets out the case clearly and concisely without over-elaboration or unnecessary embroidery. By contrast, an advocate who ‘tells’ labours over every transgression the other party has made, making liberal use of adjectives (‘disgraceful delay’, ‘appalling litigation conduct’, ‘ ), whereby the written submissions are interlarded with comment (‘regrettable’, ‘disappointing’, ‘unacceptable’ etc.)
As a worked example:
Showing
“H has missed six payments, failed to file his statement by the due date or at all, and has not responded to numerous chasing letters. This has caused W significant hardship”.
Telling
“H unaccountably failed to make any payment whatsoever on not only one but each of the six dates, causing tremendous financial pressure for my blameless client, thereby demonstrating H’s utter contempt to this court. He compounded these breaches by deliberately ignoring the court’s direction to file a witness statement which has added to the unacceptable delays in this regrettable case, causing untold hardship and uncertainty”.
One can understand why a lay client would prefer the latter approach. However, from a judicial point of view, there are a number of problems with ‘telling”:
- The first objective of any court is to understand what a case is about, before it can consider the merits of each party’s position. Many position statements draw the court into the detail of a series of complaints (often put in vivid and emotive terms) without allowing the court to see the wood for the trees, in terms of what the hearing is actually about and what it needs to determine;
- Diminishing returns quickly set in. A document of 12 or 15 pages which maintains the line and tone that one party’s behaviour is unacceptable, distressing, disgraceful, appalling may eventually, regardless of the merit of what’s being related, cause the court’s attention to stray;
- Many judges – indeed many thinking people – resent being told how to react to a given situation. The court may find it reprehensible that this party has failed to pay maintenance to his ex-wife for six months; but it may not appreciate an advocate making an extravagant submission along the lines that “…this is unprecedented bad behaviour”, or “…this may be the worst example of contempt the court has seen”. Judges are well able to reach their own conclusions; indeed it might be said that this is the essence of being a judge.
- An advocate who ‘opens the case on the ceiling’, runs the risk that the force of a good point is lost because the court responds to the advocates style (i.e. “I can assure you that this court has seen far more serious allegations”) rather than the substance of the argument.
Far more effective, I would suggest, is the style of advocacy that does not ram every point down the judge’s throat, but sets out the facts clearly and objectively, whereby the judge joins the dots and sees the pattern. As has often been pointed out, judges are human beings, subject to the same biases and thinking processes as everyone else.
Judges do not enjoy being the passive recipients of adjective-laden and cliched submissions that tell them how to react. They want to have their curiosity aroused and do a bit of the forensic chasing themselves. Show do not tell.
Alexander Chandler KC
[1] “The Art of the Advocate” (2nd ed) (1980) p.51