Every
barrister should read this book. Even if you don’t particularly care about the
goings-on in the Supreme Court of the United Kingdom, there are things here
about advocacy and the politics of multi-judge courts that make fascinating
reading.
The overall
quality of Professor Paterson's writing is so good that we should forgive his solitary and
incorrect mention of New Zealand. It seems his view of the world is not this
one:
There are
many reviews of this work online, some of which summarise it in detail. So I
will just mention some points and leave you to get your own copy.
Oral advocacy
is quite a different exercise from written advocacy. Quoting Michael Beloff QC
in Chapter 2:
“One
wants to reserve something quite deliberately for oral advocacy— as it were to
take a forensic punch, to start off with something that captures their imagination
immediately.”
Paterson
notes that an appeal before the final court has involved a conversational style
of advocacy:
“[Metaphors]
ranged from ‘an academic seminar’ or Oxbridge tutorial, to ‘an informed dialogue’,
and ‘a dialectic between Bench and Bar’, which resembles nothing so much as a
‘conversation between gentlemen on a subject of mutual interest’. [footnotes omitted]
And one needs
to be sensitive to when the court has heard enough:
“Lord
Bingham had a way of saying ‘Yes’ which would quicken and multiply if counsel
failed to take the hint.”
Questions
from the judges can’t be ignored:
“Whilst
the judges in the final court can use the dialogue to constrain counsel’s
arguments as we have seen, they also use the dialogue to clarify what counsel
are arguing, to test counsel’s arguments, and to put their own theories of the
case to counsel.”
And:
“
… in general the least helpful thing that counsel can do is to decline to
engage in the dialogue. This as Lord Bingham observed, is almost a golden rule
of appellate advocacy and reinforces the point that it is about dialogue rather
than sequential monologues.”
An anonymised
leading counsel is reported as saying:
“A
fluent and compelling response to an adverse judicial intervention is the holy
grail of oral advocacy.”
And further,
“However
clever the Lords are they’re not computers, they’re human beings and you’ve got
to make them want to decide in your favour, and that’s what advocacy means,
it’s working out a way of making them feel comfortable coming with you.”
Courageous
advocacy means having the courage to rely on your strongest point, and not
needing to refer to lesser ones. Sir Patrick Hastings KC is quoted:
“The
ability to pick out the one real point of a case is not by itself enough; it is
the courage required to seize upon that point to the exclusion of all others
that is of real importance.”
That’s enough
to give you a sense of this topic, which Paterson treats in considerably more
detail.
The book
concentrates on the various lines of communication that influence judges: with
counsel, with other judges on the same bench, with other courts locally and
internationally, with parliament and the executive, with law reform bodies. The
analysis of statistical information on outcomes is as detailed as it could
possibly be, and is a model for the sort of analysis that could be applied to
any multi-judge court.
The
discussion of how judges decide cases is fascinating too. Meetings before and
after oral argument, decisions on who should write the lead judgment, discussions
during the writing process (including with the judicial assistants), exchanges
of drafts, types of concurrence and the value of dissents are all examined with
the benefit of the author’s extensive interviews with the Law Lords and, later,
the Justices, as well as with senior counsel. We learn about different types of
judicial personality (including observations on Lord Diplock that force one to
conclude he was an arse) and the tendency of judges to reflect ordinary group
decision behaviour by wanting to stick with conclusions they have expressed at
an early stage. It is common for people not to know their own thoughts until
they express them in words, and meetings at an early stage may lead to
premature conclusions and fixed views. The early drafts of a judgment may force
a judge to recognise an error in thinking.
Lord Hoffman
is quoted on this:
“
… I must have written about eight or nine drafts of a supporting judgment. I
was not satisfied that I’d got it right in any of these drafts and I’d tried
this way and that way and eventually it seemed to me the reason why I wasn’t
getting it right was because I was wrong. So I changed sides at that point and
it went 3: 2 the other way.”
An
illustration of interactions and changes of position is given in discussing R v Waya [2012] UKSC 51 (which I have
commented on here on 2 January 2013). Paterson describes what went on:
“Since
they could not agree on the outcome of the case, it was re-heard before an
expanded panel of nine in March 2012. After the first conference (really the
second conference [ie the
meeting that occurs immediately after oral argument]) the Justices were once again unable to produce a majority position. Lord
Phillips suggested that they put their thoughts on paper and eventually a
majority position emerged. Lord Reed, who had come in for the second hearing
thought that the confiscation order should be set at zero. He laboured long and
assiduously to produce his dissent and circulated it before the majority. When
the latter came, their position had changed to take account of his dissent.
Lord Reed then agreed on a joint judgment with Lord Phillips and withdrew the
bulk of his dissent. In all it took 288 days from the second hearing to the
final judgment. In part this was a product of the team-working of today’s
Supreme Court which eventually produced a conjoined majority and a conjoined
minority judgment. However, if the same case had arisen in Bingham’s time it
might well have been a case where he approved of a single judgment in order to
provide guidance to the lower courts.”
