Become a better lawyer: running a case, doing a deal, moving in-house and other tips from the top
Good barristers don’t wing it. Without total mastery of the facts, it’s impossible to do the job properly. If you haven’t read page 622 of the exhibits, you’re not going to know how it relates to the evidence that the witness has just given. When I get a case at the last minute, I stay up all night, work all weekend — whatever it takes.
Having said that, it’s important to see the wood for the trees. As your career progresses it becomes crucial to be able to identify which documents to study in detail, and which to pay less attention to. I’ve found myself doing more and more fraud and regulatory work, which often involves dealing with truly vast amounts of material. Faced with 10,000 exhibits, you’ve got to be able to analyse and prioritise pretty quickly.
Press for everything to which you’re entitled. When it comes to pre-trial disclosure of documents, you’re not necessarily going to get everything unless you ask for it. Experience has taught me that if you’re persistent and target your requests carefully, you may well unearth a document that clears your client. During the recent horse race-fixing case in which I acted for one of the jockeys, we found several documents marked “Clearly Non-Disclosable”, which turned out to very substantially undermine the prosecution’s case.
If you don’t understand what the expert is talking about, how on earth are you going to explain it to the jury? I’ve been doing murders since 1985 — murder trials that is, not committing them — so I’ve learnt a fair bit about psychiatry and psychology. But often I’ll have to call experts in fields I have very little prior knowledge of, such as geology, the stock market, football finance . . . Again, preparation is key. Sitting down in front of Wikipedia the night before is certainly not an option.
Advertisement
Hector or bully a witness and you’ll loose the jury pretty quickly. In court it’s absolutely essential to remain courteous at all times. On countless occasions I’ve seen barristers talk down to witnesses and jurors, and as a result they’re much less persuasive.
Eye contact is vital. A facial reaction could be the key to the case. Even if it isn’t, it’s always worth giving the witness your full attention. There was a wonderful incident a couple of years ago where my opponent spent his entire cross-examination smirking and smiling at the jury. Eventually the witness stopped answering the questions. “Well?” inquired the barrister. To much hilarity the witness replied, “Sorry I presumed you were talking to the jury.”
I’ve been mugged, assaulted, burgled, had my car broken into more times than I care to remember. Drawing on those experiences helps me to understand witnesses. Empathy is very important. If you’re dispassionate and don’t engage with people in court, you’re not going to persuade a jury. Of course, you’ve also got to maintain a certain professional detachment.
Don’t give up: a Perry Mason moment may be on its way. Very occasionally one line can turn around a seemingly hopeless situation. Way back I defended a gentleman who was charged with being responsible for a dog that had savaged sheep. Throughout the trial the main prosecution witness remained absolutely confident that he’d identified the correct dog. In a last throw of the dice, I reminded him that the offence carried the death penalty for the dog and inquired as to whether he could be satisfied beyond reasonable doubt that he wasn’t mistaken. After a long pause, he said that he couldn’t, and the dog was gloriously acquitted.
Never trust a nodding juror. I’ve seen jurors nod as I’ve made my closing speech, but it’s possible that while doing so they were thinking, “Jesus! Do you really expect me to agree with that?” So it’s hard to know how important the closing speech is. What I’m sure about is that jurors are more than capable of seeing through a speech that’s based on nothing.
Advertisement
Relax, any way you can. When you’re involved in a big case it can be very difficult to find time to have a breather and clear your head. Take whatever opportunities you can get. During adjournments I’ve been known to find an empty room, lock the door and lay down on the floor for 15 minutes.
You’re only as good as your next case, not your last one. If you lose that feeling of butterflies when the verdict is coming in, you’ve probably been in the job too long. Each case is different, and if you think you can do everything the same way, you’re going to come a cropper.
Jim Sturman, QC, is a criminal barrister at 2 Bedford Row