Judicial collision part 11

It is not just Mr Smith who has had judicial problems of the sort described two weeks ago. Another barrister, Mr Yates, had some problems with a judge we shall call Judge Bass.

This was a trial when Judge Bass had from a very early stage obviously taken a very dim view of Mr Yates's clients. Under the rules as they then existed, each side had to go through a process in respect of its documents called "discovery". That consists of providing lists of all documents which might be relevant, so that the other side could see the description of those documents (as set out in the list) and then take copies as required. There is now a more limited obligation called disclosure. However effectively in those days if your client came up with more documents, because of the extensive obligations of discovery you effectively had no choice but to cause your solicitors to prepare another list.

Unfortunately for Mr Yates his client company had been undertaking a business reorganisation and their documents were in a state of chaos. Thus proper discovery never took place before trial. It may well be that nobody had taken sufficient effort or time to look for documents before the trial started, so that they were genuinely missing when the original lists were prepared, or the reason may be (as the judge obviously suspected) more sinister than that (i.e. deliberate suppression of the documents). Either way, when the managing director of his client turned up every day with a new box of documents, Mr Yates had no choice but to ask for time to look at them and then produce a list. Each day Judge Bass would say in a weary tone, "What have you got for me today, Mr Yates?". The judge plainly reached a stage where he found it difficult to treat Mr Yates's clients as willing to do anything other than pull every tactical stunt available, and at the same time seemed rather unfairly to treat Mr Yates as personally responsible for this sorry state of affairs.

This came to a head during cross-examination. The judge is entitled to prevent any questions which are not proper questions (although he may normally be guided by the objections or otherwise from counsel for the other side). What he should not do is effectively take sides or try to directly control cross-examination. It is always crucial for a judge to bear in mind that he has not prepared the cross examination, and that he may not have adequately grasped where the cross examination is going. If it is going anywhere, all will be revealed. However there is always a risk in a judge interfering and asking counsel putting the question exactly what the reason is for putting a particular question. Once the judge does that, he is effectively asking counsel to explain, before the question is answered, what the question is relevant to and what sort of answer it is designed to elicit. That is as good as asking counsel to send notice to the witness saying "This is what you have got to be careful about when answering this question.".

After a series of inappropriate interruptions of this sort, Judge Bass really excelled himself. No doubt he was influenced by the unfavourable impression he had obtained of the clients of Mr Yates, and perhaps subconsciously was concerned that the cross examination was designed to achieve an unjust result in favour of the clients of Mr Yates. However his job was to judge the evidence as adduced, not to prevent questions being properly asked. Instead when Mr Yates asked a particular question, the judge interrupted. "Why are you asking that question" the judge said. A little wearily, since this was effectively flagging to the witness what he should say, Mr Yates explained. "I don't know why you're asking that question" said Judge Bass, "because I would imagine if asked that question the witness would say (Judge Bass then gave his answer)". "Nonetheless I would be grateful if I could ask the question", said Mr Yates, a little angrily, because the judge was ruining any possibility of surprise. Mr Yates asked the question. The witness, perhaps unsurprisingly, repeated word for word the answer which Judge Bass had suggested he would give. Any normal judge would have hung his head in shame and realised he had interfered with the normal progress of cross-examination. Judge Bass was not a normal judge. With no hint of irony, and an apparent lack of understanding of what truly happened which could only be described as of Olympian proportions, Judge Bass said "I told you Mr Yates.". As if the witness copying his answer had had nothing to do with it.