Friday, April 17, 2015
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.”
“ … 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.”
“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  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.”