Week 12, Unit 31
Interactions with your Opponent

In addition to oral and written advocacy, barristers must master an array of other interactive people skills.  These skills fall broadly into skills which you use on your opponent and skills you use on the court.  This unit concentrates upon the former.

You should always encourage your opponent to believe either that you are much smarter or much dumber than them.  If they know you, you should concentrate on convincing them that you are either “really up for it” or “not that interested”.  Of course, everything is relative and so convincing the other side that they are really smart or dumb, or really “up for it” or not will achieve the same effect and in combination might enhance outcomes for maximizing “a swing”.

Examples of ways to throw a false trail include referring to well known female judges as “he”, “his Honour” etc… (especially just before appearing before a female judge), saying you are considering going on Big Brother and asking if your opponent reckons getting a computer is really worth it for a barrister.

The traditional ploys of asking your opponent if there are any relevant cases they think you should consider and asking what bits in the material are most harmful to your case are perhaps over-egging the pudding but you will get a feel for that.

Bringing a really big bag on wheels to a District Court chamber application and then opening it to reveal multiple volumes of the English Reports festooned with “post it” stickers can work to promote a perception of dementedness especially against young players.  Similarly, opening your bag and only having a small bundle of dog eared photocopies of the QIT external notes on torts (1982 version) will rarely go unnoticed especially if you are vigorously highlighting them for the first time whilst waiting to come on.  The old glass of wine mouthwash coupled with the stage whispered dirty joke (sometimes with a water glass spill) can often provoke a letting down of the guard.

As you know, if your opponent looks bad you look good.  The old ploy of spying the winking light on your opponent’s mobile phone and then getting your solicitor to ring the number during your opponent’s closing address rarely fails (of course if this happens to you, calmly look at the number before turning off the phone and saying “Mr Ruddock will have to wait till we’ve finished before he gets his report”.

Constantly refilling and moving your opponent’s water glass into their gesticulation zone or pushing back their chair while they are standing and then making a quick objection can achieve spectacular results.  Of course, don’t do these things if you think the consequences will make you laugh out loud (unless that serves your purpose eg. Judge also cruel person).

Little niggly submissions such as “I know my opponent won’t object to this” and “I don’t know why my learned friend is not running his best case but that’s certainly cut matters short” can make a losing day still a fun one.

Before court when your opponent wants to talk to you it often assists in extricating yourself if you reply (with a smirk) to any reasonable approach: We were taking bets in chambers as to when you would first float that.

Remember, you may practise for a long time so what you do today might just be a little investment in the future even once the decision is in.  If you’ve had a hard fought, undeserved win shake your opponent’s hand, look them in the eye and say “Thanks for running dead on that mate — it’s good that some barristers still believe in justice”.  Similarly, if it’s a hard fought loss make sure you say “Well, I suppose I can’t be too upset when the Judge’s just said what I told the client four years ago”.  You might add “I’m going to tell my mob not to appeal — for what that’s worth”.

Always bear in mind:

1. You can only do so much with the facts and the law, your scope with your opponent is almost always greater.
2. Solicitors and clients are paying for many things including a bit of backbone and at least some decent memoirs.

3. If your tactics are criticised by your opponent, accuse your accuser of having read this article and therefore trying to go the niggle but without the skills to do it effectively. 

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