Shock and Awe part 2

If you are a renowned expert in a particular area of law, your submissions are bound to carry weight. Of course reputation and ability are inextricably linked. Part of the reason why you are a renowned expert in the first place is because of your knowledge and the ability to convey that knowledge in a way which is persuasive and attractive. That reputation is likely to be reinforced by a combination of the attractive and well thought submissions you are making, added to the existing reputation.

Reputation will always reinforce any perception of what the party with the reputation is doing. This effect has been noted many times in the boxing ring. A boxer with a reputation of being very good is always more likely to catch the judge's eye than a boxer with no reputation. That is not to say that the boxer with a reputation will always win, very far from it. In nearly all contests the decision will be a fair reflection of what occurred. Sometimes however in a close contest the perception of what you are expecting to see can colour how effective you regard what is actually being done as. This is not conscious bias or wrongdoing, it is just a fact of human perception.

Likewise reputation can have its effect upon opponents. Again an analogy with the boxing ring is apposite. In his heyday Mike Tyson was a brutally effective heavyweight. However his effectiveness was substantially increased by the way that opponents would be intimidated before they had even started. Similarly if a barrister is against a renowned opponent that is not a factor he can altogether ignore. It is not a question of being intimidated, but assessing possible outcomes. If you are trying to settle a case you are trying to see what the best outcome you can achieve in negotiation is, and comparing that what you expect to happen in court. If your opponent is a famous cross-examiner with an especial skill for breaking down witnesses and ruthlessly exposing inconsistencies in their stories, that is unlikely to be a factor that you can ignore when considering how well your case is likely to stand up and what the best and worst outcomes are.

One reason why it is hard to disentangle reputation from ability is that normally the ability which gave rise to the reputation in the first place is all too apparent. Many many years ago, there used to be a potential action cause of action for something called breach of promise. If someone promised to marry you, and then did not, you could obtain damages . Needless to say, whilst there would no doubt be many genuine cases, this also meant that there were a number of cases where either false allegations of a promise to marry were made, or strenuous efforts were made to get someone to say something which could be taken as a proposal of marriage. A not uncommon scenario in the circumstances was for young man with potentially large inheritance to be targeted. On one such occasion a woman had turned up in order to pursue a case for breach of promise against the heir to a vast fortune. Another case was proceeding in the same court room and she watched a QC cross-examining the last witness in the case. She motioned to a member of the Court staff, to whom she had already identified herself as a litigant in the next case on. "Who is that man?" she asked, pointing the cross-examining QC. "That is Mr X. QC," she was told. "He is the lawyer for the defendant in your case, and he is the man who will cross examine you.". "Never", she said, and left the court. The case was not pursued and was dismissed. She might not have known who Mr X. was before arriving at court, but she had a very clear idea of what he was like before she left.