Litigants in person part 8

Of course whilst litigants in person can cause pandemonium, it is probably as well to bear in mind that it is not only litigants who can fail in this way.

In general the standard at the Bar is very good. This is what one would expect of a referral profession. What that means is that other professionals by and large refer work to barristers. If a barrister is no good you would not expect any other professional to ever refer work to him. It can be a different matter if one is in-house. Thus if you are a higher rights advocate acting for a firm of solicitors, then the solicitors obviously have a vested interest in putting you forward since they will receive the fee for that advocate. That is not to say that every such advocate would inevitably be useless, but it means that those advocates are not having to earn their living in the general market. (This applies whether those advocates are advocates for civil or criminal work). The same would apply in respect of CPS higher rights advocates. They are not selected by the CPS on the open market, they are selected because they are in-house. One would therefore expect that useless barristers would never be instructed because no one has a financial interest in instructing them, and no competent professional would instruct them. However sadly although the vast majority are competent, there are some spectacular examples to the contrary.

I once spoke to a law student who had been to court to watch case. The case was about contract, and concerned exemption clauses (which are attempts by one party to mean that it is not responsible for the consequences to the other party even if it does something utterly dreadful). There is much law both common law and statutory in relation to this topic, and one of the basic cases which students look at is a case called Thornton and Shoe Lane Parking (all about notices posted at the car park and the effect of those). This is such a basic contract case that most students would have heard of it. This particular student heard a barrister arguing about exemption clauses and heard him refer to the case of "Thornton and Shoe Lane Packing". When the judge queried whether he really meant parking, the barrister wasn't sure. This may seem a minor error relating only to one letter of the alphabet. It was not. It was an indication that the barrister could not possibly have read the case because if he had he could not have made that error. Therefore he was basing his submissions on authority he hadn't even bothered to read. If it was obvious to a first-year law student that the barrister did not know what he was on about, then it must have been obvious to the judge and should have been obvious to everyone else.

Before I went to study law, when I was a schoolboy one day I went to the courts and watched a case in progress and listened to a barrister making his submissions. To be fair, I did not know the difficulties in the case, I had not read the papers, and having become a barrister I know it is much easier to think that being a barrister is simple than for it to be so in practice. However, having listened to him, I was absolutely convinced that if they had given me the papers for an hour there and then, I could have made a better job of the case without any legal training. That may have been adolescent self hype, but the barrister can't have been particularly good for even the most exuberantly self-confident teenager to take that view.

Perhaps the most significant example concerns a criminal case where there were various defendants. This particular barrister represented one of the defendants. In his desire to make a police officer look like a liar, he appeared to lose all common sense. The prosecution were only trying one offence and so on the rules then applicable were not allowed to adduce evidence of another offence. Thus they could not use the fact that this defendant was alleged to have shot someone else as evidence in support of this shooting. However this did not stop the barrister snatching defeat from the jaws of victory. "You say that the defendant also shot another man don't you officer? ", he said to the astonished police officer (who was torn between grateful surprise that he was allowed to bring in evidence of the same, and a lurking suspicion that there must be something more to it than that the eye otherwise the question would never have been asked). "You also say that when you arrested the defendant you found the gun on him that he allegedly shot this other man with, don't you?". By this time the doubts had gone, and the police officer assumed his Christmas present had come early. Yes he said. "You were lying weren't you?", said the barrister. Even if the jury thought that the officer might be lying, the prejudicial effect of bringing all that in far outweighed any benefit to be gained. It is therefore not just litigants in person who can go wrong.

On a more amusing note, a female CPS advocate once outlining a case and referring to a hearing condition of the defendant, instead of outlining that the defendant suffered from " tinnitus", solemnly told the court that the defendant suffered from" tittitus". It says much for the judge and the other advocates that they all managed to keep a straight face.