Trials much like ‘Cricket Matches’

On Tuesday 24 October, Justice Downes discussed the importance of being flexible at trial at the Modern Advocate Lecture series at Law Society House.

A trial is like a cricket match, according to Federal Court Judge Kylie Downes.

“It rains on the first day. The second day someone sprains their ankle, you just roll with it,” she said.

“You don’t just say ‘I’m going home now that cricket game is over’. You actually have to be flexible and ready to adapt to the circumstances.

“And actually like cricket matches, trials are the same. They’re going one way. They look like they are going the other.

“So don’t think it’s lost because something happens. It’s not, because in the next hour, it could swing the other way.”

Justice Downes, who was appointed to the Federal Court in 2021, also advised lawyers not to react at the bar table if something doesn’t go to plan.

“Don’t react because the judges can see everything and they can hear all the things as well,” she shared.

“So just careful what you say at the bar table. Whatever you do, don’t react if your witness doesn’t go as well as you’d like.”

Justice Downes, a barrister of more than 20 years experience, also advised the packed audience to “always be open to reaching a settlement”.

She urged lawyers to have this mindset from day one and even strike up a conversation with the other solicitor outside the court.

“Some times lawyers are so excited about going to a trial, they actually don’t want the case to settle,” she said.

“I don’t think it’s the money so much, they want the battle. And I understand that, but in the end you are doing it for your client and the client might be happy to settle.

“If you can reach a settlement that is a better result for your client. They might not get everything they want, but they never do.”

Justice Downes said it would save the client the stress of cross-examination, the worry of legal costs and “they can get on with their lives”.

She also shared “a little secret” with the Tuesday audience about evidence and objections.

“Judges know or can tell usually if the evidence is good or not. In other words, we can work out does the evidence carry much weight or not.

“You are much better off picking the critical objections, thinking this evidence really can’t go in, and letting the rest in and making submissions about weight.”

Her talk about the intricacies of preparing for, and appearing at, a Federal Court trial, was the third and final lecture of the complimentary series.

It also covered the identification of evidence, development of a case theory, opening and closing submissions, and examination of witnesses.

The Modern Advocate Lecture Series focuses on practical advocacy skills with an ethical perspective. The lectures are held three times a year at Law Society House, Brisbane. They are also livestreamed and recorded.