LEGAL ADVICE
Ability to focus on the 10% and push 90% to one side is something sadly lacking in many advocates.
T H E A BI L I T Y T O F O C US LEGAL EXPERT JULIAN GIBBONS TAKES A LOOK AT THE ART OF FOCUSING ON THE ESSENTIALS
WHEN STUDENTS SET OUT TO learn the law, hoping to become barrister or solicitor, there is unsurprisingly a lot of reading to be done. A good part of it, it has to be said, is fairly turgid stuff. Just occasionally one comes across something altogether different; something which is actually inspiring of a career in the law; something which sticks with you. For me, that something was a book by the late Sir David Napley, called “The Technique of Persuasion”. Napley’s book was relatively short at around 170 pages (quality not quantity, something I return to below), and was about being an effective advocate. In an age where most high profile lawyers were barristers, Napley stood out as a successful solicitor and a brilliant advocate. Such was his renown that when the former Liberal leader Jeremy Thorpe was charged with conspiracy to murder he chose Napley to defend him. Being a mere solicitor, Napley had no rights of audience in the Crown Court, where the trial took place in 1979. He could however appear at the preliminary committal hearing, before Minehead magistrates’ court, to determine whether there was sufficient evidence for the prosecution to proceed to a jury trial. This was an “old style” committal, meaning that the prosecution witnesses had to give their evidence as if at trial and where the defence could cross-examine. Though Thorpe and his co-defendants were committed for trial, Napley’s skill as an advocate was displayed for all to see, particularly as the normal restrictions on media reporting the committal proceedings were lifted. The central thesis of Napley’s book is of course that advocacy is the art of seeking to persuade whichever tribunal you are before, whether it be judge or jury. He presented a list of things undesirable in an advocate, such as pomposity, boring people with overlong or irrelevant cross examination and cross-examining so aggressive that the judge or jury start to have sympathy for the witness. Most of all said Napley,
advocates should know when not to ask a question, to shut up and to sit down. This last is an example of not being blinded by the mass of often irrelevant or marginal facts in addressing the one or two key points of a case. This last is shown in one of the classic cross-examinations in legal history, that by Sir William Norman Birkett, KC in the trial of Alfred Rouse for murder at Northampton Assizes in 1931. Rouse was accused of murdering a man found in the burning remains of Rouse’s Morris Minor. Examination of the vehicle seems to show that the brass nut on the fuel line had been unscrewed, allowing petrol to escape and ignite. Rouse’s defence team produced an expert witness engineer who suggested that the nut had become loosened by the heat of the fire, rather than being deliberately undone. Birkett’s opening cross-examination of the defence expert was devastating: “what is the coefficient of the expansion of brass?” This question completely surprised the expert, who was unable to answer convincingly. After a further few questions Birkett demonstrated to the jury the expert’s lack of knowledge of his subject, fatally undermining his credibility. This was fatal to Rouse too. It took the jury twenty-five minutes to convict him of murder. He was hanged six weeks later. Almost ninety years on, attempts are still being made to discover the identity of the victim! Birkett’s cross-examination is a classic example of focussing on the essential issue, in that case of the brass nut which the prosecution alleged Rouse had deliberately undone. He did this by undermining the defence expert through attacking his expertise. It was a gamble, as the man could have come up with a definition and an answer (which is 0.000018, for those interested!). Undoubtedly, Birkett had supplemental avenues to explore well prepared, if needed. Like an iceberg, 90% of the work on a case happens before the trial. Ability to focus on the 10% and push 90% to one side is something sadly lacking in many advocates. Exploring every avenue they believe proves how good they are. Often too the client thinks the advocate has not done his job unless every stone has bene turned over. Where parties in court are not represented this desire to cover exhaustively every single point is multiplied many times by parties and trials become longer and longer. Proper legal representation saves the most expensive resource in the courts system, namely judges’ time. Unfortunately, this is lost on those who fund the system, which now grinds slowly to a halt.
Julian Gibbons Norton Peskett Solicitors www.nortonpeskett.co.uk | 01493 849200
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