How to . . . be a judge

And if humour doesn’t work . . . If counsel insists on making the same point 15 times, and isn’t perturbed by your sarcastic remarks, ultimately there’s not much you can do about it. Being short-tempered, I’ve found out to my cost, only achieves a couple of pages of rather rude transcript.

Put the hours in. During the Equitable Life case I had submissions coming in from ten or eleven different sources, thirty odd witness statements, opening speeches that filled an entire lever arch file: fairly typical stuff for a big case. Not that I’m complaining — I found it fun! Less enjoyable are all the committee meetings that judges are increasingly required to attend these days.

Some judges hate to give the impression that they’re ignorant about anything. I rather worked on the opposite principle, giving the impression that I was ignorant about everything. So in response to statements like, “Of course, your Lordship is familiar with the case of Bloggs v Smith”, I’d say, “Well actually, I’m not. Tell me in a sentence what it decides and why it’s relevant.” That could be a real show stopper.

Don’t get over-excited by the law. Essentially the task of a judge is to decide the dispute that is before the court, not to use it as a peg upon which to hang great intellectual legal analysis. That can usually be safely left to the House of Lords.

Call a lie a lie. It was something of a surprise to me just how often witnesses told lies. Sometimes it’s so blatant that it’s insulting. I’ve heard the equivalent of, “I couldn’t have done it because I was on the moon that day.” These are the times when the judicial lower cases of “fading memory” or “convinced himself” are simply not apt. Failing to clearly identify a lie may mean that insufficient attention is paid to the obvious next question: “Why lie?”

Plainly, you must not be afraid to make a decision. One of the problems in the commercial court is that the quality of advocates is such that you could read one side’s argument and think that it was clearly right, then read the other’s and think it was clearly right too. In those situations all you can do is explain that the decision was a difficult one to make and be very clear in your justifications.

Try to put the Court of Appeal at the back of your mind. Many of us have had the experience of reading appeal court decisions which appear to bear no resemblance at all to the case that we heard. It would be lovely if, for once, the Court of Appeal would just agree with you. But have you ever heard of a lawyer (let alone three of them) who doesn’t want to add something? When one of your decisions is appealed you need to swallow hard, then to continue to try cases as your own person. Having one eye on the Court of Appeal tends to lead to over-complex, unnecessarily fussy judgments.

And when your mind starts wandering to the test match score . . . With the best will — and advocates — in the world, it has to be admitted that there are some elements to cases which are boring. One of my anti-boredom techniques was born out of the practice in larger cases of assigning people to closely watch the judge’s reactions to each point. When I felt my attention waning, I’d lean forward and very deliberately highlight the instant transcript on my laptop, then quietly watch as half the court sprang into life and started furiously making notes speculating what it could possibly be that had so excited the judge.

“How not to be a judge.” Some of my old colleagues would probably consider that a more appropriate title for this article! The more serious point being that although judges often look very similar on paper, they differ considerably in their personalities and approaches to the job. Judges are certainly not all chips off the same block.

Sir Gordon Langley recently retired from the commercial court