You strike me as of widely differing seniority and I know your areas of practice differ too. Not to mention your incomes. Not to mention your genuine level of interest in this keynote speech. Thank goodness for the enduring politeness of today’s legal audience — I very much hope — important to someone like me, who stands before you with so many obvious deficiencies: not native Australian, first visit to the continent, old, boring, a lawyer, no amusing novelty value — really nothing for you to laugh at at all. That of course may shortly change, whether I like it or not. But stay strong, I have one hidden claim to presence here. We’ll come to it in due course.
Last October in London the prestigious Kalisher Lecture was given by the actor Martin Shaw. He is both a Bencher of Gray’s Inn and, like me, a Kalisher trustee. Set up in 1996 to commemorate the outstandingly able and irreverently amusing Michael Kalisher QC — he could almost be Australain — it looks for talent from any background which would otherwise find the costs of training for the Bar prohibitive. His title was “Excellence is Through Industry Achieved” — hands up if you can name the play from which the quotation comes. No, neither could I. His central theme was support for the existence of a top layer of the best, rising through the ranks, recognized by virtue of star quality honed in the arena — the courts. He said:
The court is an unforgiving crucible in which the competent survive, the inadequate dissolve, but the good are burnished. You all remember or still experience the toiling into the small hours mastering the brief, slogging to court, coping with someone unappealing, hostile, and less intelligent than you — and as well as the Judge, the defendant. Those are your training grounds. The attritional honing of your individual skills and style, in the arena, against an opponent.
The Bar is a profession of competitors. Against one another, against the odds, against the individual’s own notional 100%. Competition is the one sure guarantor of excellence. And Aristotle had a few thoughts: Excellence is an art won by training and habituation. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. We are what we repeatedly do. Excellence, then, is not an act but a habit.
It’s so simple to set out. It’s less simple to translate into how the legal profession functions or ought to function in 2013. In England and Wales (Wales is a country with connections to England going back hundreds of years but where what they’re saying is hard for the English to understand. The natives have mixed views on people from England. Sometimes they are welcoming, sometimes not. For the visitor it can be difficult to tell. Nervousness is common). As I was saying, in England and Wales we confront a time of financial constraint unknown before now. There is little money for the profession and all the indicators are that in 2014 and 2015 there will be less.
Consequently, not only are we in the age of instant communication and relentless pursuit of speed of response but also of trying to make those factors redound to our benefit against a backdrop of reduced and dwindling resource. The legal profession is flooded at the incomers’ end with youngsters who can call themselves barristers but who stand little chance of a pupillage, let alone a tenancy. Those who win a permanent place in chambers then face the next precipice: getting work. Those who stay in the profession face yet another: retaining work. In the crucible, the unforgiving now starts from Day One.
So, what to do? What advice to give the school-leaver deciding on a next step? There’s this: The cast of mind of a lawyer is useful across the piece. Lawyers think analytically, express themselves clearly, are careful bordering on the pedantic, and aim to get it right the first time because they know that clearing it up means the Court of Appeal. And time spent in the Court of Appeal is horrible. I should know. In 2013, when so much of society is dumbed down, the young are at risk of not expressing themselves well, or sometimes at all, let alone attractively — texting and social networking militate against it. But if they can think, write, and speak clearly they can skilfully advance or oppose a proposition.
It is the mark of the educated mind to be able to entertain a thought without accepting it. Aristotle again.
Skills you have at your fingertips, which by now come naturally to you, will help them pass exams, get jobs, and do well in any interview. It means that when they speak they are unconsciously an ambassador for the life they have chosen. I agree with the actor Kevin Spacey. If you’ve been lucky and have made something of yourself within your chosen profession, it’s your duty to send the elevator back down. He’s colonial. I think he means “lift”.
Additionally, as Mr Shaw explained during the Kalisher lecture, in a small but collegiate profession, the trust and confidence of one advocate in another is crucial. “Being as straight as a die”- is key. The sharp, the dodgy, the “don’t turn your back on him” cannot hide. Everyone relies on this deep-seated tradition of probity, not least the Judges. They have neither opportunity nor time nor inclination to descend into the well of their court to unpick the behaviour of counsel. They must be able to consider the arguments, not concern themselves with what manner of man or woman advances them.
We are now in the business of ensuring that the 2013 and onwards legal profession continues to shine against the ordinary and, I’m afraid, there are obstacles. Standards, due to influx of number or other reasons can be lower than one would want, the young potential entrant is arguably paying to join a profession which can’t feed him/her, there is both reducing money and the white noise of competing public entities baying for their share of the pot.
Striking any chords?
I wonder if trials need to change their shape? In England and Wales we have modified and are modifying our attitude to the oral tradition, the change amounting to broad highways in civil and administrative procedure, country lanes in crime. There are two things in play: the attitudes of counsel and the mindset of the judge, and the prevailing mood of the meeting. A happy confluence of all three might make a major difference. Is it worth pulling back from the amount of time we spend ventilating issues in court? The first question I’d ask is whether the time we currently spend pays proportionate dividend. Let’s look together at some examples.
Economy of expression is always good. The Lord’s Prayer: 65 words. The Gettysburg Address: 258. The European Directive on Duck Egg Production: 12, 921. Economy of presentation is good – most of the time. There will always be occasions when some part of the case requires more rather than less and much of that is in the sense, the feel, of what’s happening. You know that. And you know when “more” is genuine, not a money-maker for the shyster.
Experts. We still, certainly in civil or in crime where we think a jury needs it, take an expert through his/her report in examination in chief. We are better now at translating the technical terms but we still tend to include the technical first and then explain it. It’s a small point but not I think insignificant because it shows mindset. “Cut” not “laceration” and “graze” not “abrasion” is a graceful concession to progress but really not best practice, more an acceptable second best. Is it?
We are increasingly good at locking experts in an airless room and making them reduce to an agreed document the areas in dispute. Do they need to be together? They need to communicate, but it is 2013, and there is e mail and the videocon. There are occasions when eyeballing the other chap is the best way but it isn’t always so. What’s wrong with a rebuttable presumption making the attendance of more than one expert the exception not the rule?
And if experts can do it why not some other category of witness? I am on my guard because I want to keep clear of appearing to suggest a move to an inquisitorial system. Foreigners cause enough problems already – I can see you thinking exactly that. But as so often there are aspects of another way of working which might withstand intelligent translation. Many more consequential questions in advance of a hearing? Once again in civil we are streets ahead of administrative law and of crime and exactly this is unexceptionally done. Not often enough, but done nevertheless. In crime if it’s happening at all it is the exception. But quite often, in a robbery or a personal injury fraud, whether the car were parked on the north or the south of the street matters but isn’t crucial. It’s which way it was facing and the line of sight that are important. Three disinterested householders one pedestrian and a passing motorist have to come to court and that may be unavoidable. We all know that setting the scene and settling the witness — or unsettling him, dependent on whom one represents — is often part of the skill and what counsel is paid for. But there are legion instances when either some need not come or, more often I suspect, might still have to come but the time spent in the witness box could be reduced. Trials cost money because time costs money. Reduce the time per contest and the advantage might seem so slight as not to justify the effort. But add up the saving over a year and nationwide and the picture might change.
Tablets. We are creeping — unconfidently — towards using tablets. It’s common now to see counsel with their Ipads, often alongside their achingly slender designer cutting-edge laptops, and the Court of Appeal Criminal Division is trying a pilot of ipad use instead of or as well as textbooks and reports. You like it or you don’t. You are prepared to try it or you’re not. You’re willing to kidnap a passing eight year old and learn how to use the thing, or you’re not. So far so good.
One lingering problem is presentational: it’s the label of luxury, a gift to the Luddite, and a gift with ribbons and bells to the Luddite with right wing views. “They give these people tablets, when victims wait months to give evidence/they whine about cuts, etc etc. What’s wrong with a pencil? ” It’s first cousin to “Prisoners watch television in their cells. Can this be justice?”. It’s hard to shift opinion from perceived but misconceived hedonism towards money-saving good sense. In truth I strongly suspect that photocopying thousands of pages of documents, putting them into unwieldy huge ring-binders — which will break — is relatively quickly upriver of the tablet in cost. And you can wipe and re-use the tablet. Trial after trial jurors can use the same ones. Witnesses can be taken to documents, statements, plans, on them. Experts already rely on them — a FMRI scan can be shown far more effectively on one than in sequential hard copy pages. The only attendant sadness is that we might forget Sedley’s Laws of Documents.
First Law: Documents may be assembled in any order provided it is not chronological, numerical or alphabetic.
Second Law: Documents shall in no circumstances be paginated continuously.
Third Law: No two copies of any bundle shall have the same pagination.
Fourth Law: Every document shall carry at least three numbers in different places.
Fifth Law: Any important documents shall be omitted.
Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.
Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
Eighth Law: Significant passages shall be marked with a highlighter that goes black when photocopied.
Ninth Law: At least 80 percent of the documents shall be irrelevant.
Tenth Law: Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
Addendum: Transcriptions of tapes (inclusive of videotapes) shall omit all relevant material or, if that is not possible, all material adverse to the interests of the transcribing party. However, insertion of spurious evidence in favour of the transcribing party is permitted on condition the party’s solicitor is not informed or forgets to alert Counsel.
Eleventh Law: Only one side of any double-sided document shall be reproduced.
Twelfth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
Thirteenth Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:
1. a steel pin sharp enough to injure the reader,
2. a staple too short to penetrate the full thickness of the bundle.
3. tape binding so stitched that the bundle cannot be fully opened, or,
4. a ring or arch-binder, so damaged that the two arcs do not meet
Back to my current theme — use of time. Deference — I love it, perhaps because I’m at the right end of the telescope. Titles — I love those too. Sometimes the full majesty of my position is unaccountably overlooked. You’d think that one glance at me and the only two words to come to mind are “Your Ladyship”.
But I’ve had most appellations over the years. Your Honour (wrong) Your Lordship (wrong but less wrong) Madam (wrong) Sir (wronger) Your Eminence (wrong but, as we speak, quite encouraging) and my personal favourite, Darlin’.
Should we be shedding words which add nothing? Or at least reducing how often we insert them? “I wonder if your Ladyship would be good enough to turn to Volume 1? If I might take the court to page 3 I respectfully suggest we shall find the fortification for the submission to which I now turn” — which I could convey, with perfect politeness “My next submission: Vol 1 page 3”.
Summings-up. We’ve let these run away with us. We sum up the law, we distill the facts.The law we have to sum up is itself pointlessly complex, layered and stratified. But it shouldn’t take sixteen pages of written directions. And Routes to Verdict should surely fit on one page. We really must grasp the Oscar Wilde danger: I had to write a long letter because I didn’t have time to write a short.
Sometimes a sentencing exercise, if some counts on the indictment are pleaded as happening ages ago, then a while ago, then nearly present day, then present day, can require us to use four past editions of the relevant textbook. I’d rip up the whole lot, and I’d codify it.
Jury research. There is no need to panic. We could retain the protection for individual trials but still secure good quality information. For example: “Are summings up useful?” If 10,000 jurors said they aren’t, might it tell you something? “Did you understand the experts? If no, did you understand when the Judge had explained things to you?” Those answers might be illuminating, and that’s all I’m interested in. What is the point of dissipating energy hand-wringing if you’re wringing about the wrong thing?
So my aim has been to leave you thinking. What shape should the Bar of 2013 onwards be? Are we still entitled to educate thousands of beginners for a career as practising professionals knowing what we know of their likely prospects, or should we simply tell them that the lawyer has an approach which is of wide benefit and leave them to it? What’s wrong with a rigorous analysis of what nowadays does us no service? Gobbledegook, too many statutes, prolixity. (That’s “wordiness” until you reach the Court of Appeal.) Should we find out what we do well and what we do less well? And should we be actively aiming to harness tradition and convention so that those two old chums are our servants as much as they are our masters? This is not an easy one. Like making the profession shine against the ordinary it’s a phrase with which no-one would argue. It’s the implementation which requires balance, otherwise a good deal of convention and received orthodoxy might disappear, disguised as a necessary sacrifice to progress. I wouldn’t like to see robes go. I like very formal terms of address. I don’t want a conversation with counsel though I welcome a dialogue. I don’t want to see anything more than courtesy and compassionate efficiency in the way we deal with witnesses — I am not their friend, and neither is counsel. We are there to get the nearest to 100% accuracy out of them in a fashion which recognises their frailties and that of the system. Parties are entitled to leave a court disappointed, but not aggrieved.
I’ve opted in these few words for a consideration of the general via a starting point rooted in the particular. I’ve tried to avoid landscape but to persuade you to ask where an adaptable profession centres its relevance by reference only to the day-to-day. Theory is a joyous but not exclusive route to progress. So, here in our Gold Coast resort, we remind ourselves — because we’re all Aristotelians now — that we are what we repeatedly do. Excellence is not an act but a habit. That surely is the clue to how we test whether the Bar is readying itself both for today and for the future.
We forget at our peril to whom the Bar needs to be relevant and for whose benefit it needs constantly to adapt. The answer is not solely you, and it’s certainly not me. It’s the man or woman who never wants to see any of us again. From his and her I suggest the question is “Are you in 2013, with all that is available to you, doing your best — in my interests?”
Now, we must revisit the title of the Kalisher Lecture “Excellence is through industry achieved”. William Shakespeare, Two Gentlemen of Verona.
And how do I seek to hold up my head here in Australia? Like all good little middle-class English girls, my companion of choice was my Teddy bear. But unlike my peers I had another, very close to Teddy in my affections. My aunt brought him back for me when I was really tiny. He lives with Teddy and I still love him desperately. I hold him very carefully so as not to hurt him. He’s a koala. I pondered bringing him, but then I realised that a return to his homeland for the only time in 61 years might prompt him to stay. I understand, now I’ve met you, how tempting that could be, so he’s at home in Sussex, with Teddy. Better not to take the risk.
Thank you so much for letting me come and see you. Thank you even more, assuming that you were, for listening to me.
The Rt Hon Lady Justice Rafferty DBE
