Skip to main content.

More Talking Tactics part 2

Pursuing the football analogy more closely, one thing which is often a source of complaint are the interventions of the referee. Did the referee get it wrong? Should he have approached it differently? Did that failing influence the outcome? Similar issues apply in litigation.

One of the more amusing assertions which is constantly trotted out by football commentators (in respect of refereeing aberrations but also in respect of luck generally) is that "these things even themselves out over a season". That is obvious nonsense. Over a period of time the effect of chance will tend to level out, but there is no particular magic about the ratio of incorrect decisions to 38 games, or indeed any other particular number. It is perfectly possible for one team to have been subject to more dubious decisions than another.

The same applies in litigation. Poor decisions do not even themselves out over the course of the case. Therefore they can affect the outcome.

Of course litigation is subject to a process of appeals. If you lose the cup final 2-1 to two dodgy penalties, then the FA cannot overturn the result in the way that an appeal court can. However there are considerable limits on the extent to which appeal courts will interfere. Just because they take a different view from the judge does not mean that they will interfere with anything that was within his discretion as long as his view is not one which no reasonable judge could hold. Similarly in respect of findings of fact (who was lying, who was not) appeal courts are very deferential to the judge at first instance. The judge saw the witnesses, had a chance to take a view about them, and it is very difficult for an appeal court to second guess that. Whilst the appeal courts can overturn the various failings of the trial judge, it by no means follows that because the judge got it wrong that an appeal court will be willing or able to interfere.

Sometimes the behaviour of a judge does not show up on a transcript. His manner might enormously influence a jury, but it might be very difficult to show that from the words used. Many years ago there was a judge who was notorious for making gestures which would influence the jury, but which it was next to impossible to pin down for an appeal. The particular trick of this judge was to wink at the jury to show he didn’t believe an answer to a question. In one case, counsel fought back. They had a junior noting every wink so they could cross refer it to the transcript. The judge was unrepentant. "Did you get that one down?", he would ask after each wink.

Counsel has to accept, just as football managers do in respect of referees, that judges sometimes get decisions completely wrong in circumstances where you can do little about it. As in football, the effect can be both unfair and catastrophic even though well intentioned. In both spheres, because even the fairest and best are only human and make mistakes, then unfortunate errors will inevitably occur.

Michael J. Booth QC