Being there part 1
Those following the Phil Spector trial in the United States would have been somewhat bemused at the fact that the key defence lawyer absented himself for a part of the trial. This was with the consent of Mr Spector. Nonetheless some commentators expressed concern as to what the jury would make of it all.
As an associate member of the American Bar Association I know that US trial lawyers take their job very seriously. Noted trial lawyers in celebrity trials no less so. The lawyer had gone off to play the role of judge in a television reality show. Whilst that might be regarded as a bizarre basis for absenting yourself from a trial, I do wonder if there was some cunning ploy in this. Being talked about as a judge in the TV show (by most members of the public probably regarded as being rather more important than being a judge in real life) may have been designed to bolster his status, and there may have been a view that when he returned to the trial he would be able to give it fresh impetus. Whether that is the case or not, it is a good illustration of the issue of whether the lawyer will be there or not.
When a few summers ago I was travelling across Afghanistan taking DNA samples as part of the Alexander in Afghanistan project, my projected return was about three weeks before I was due to start an important civil fraud trial. Before I went my junior expressed concern that something might happen to me on the trip which could either mean that I would never be coming back, or that might mean my return could be substantially delayed. (work it out yourself!). It was abundantly obvious that his principal concern was that he might have to take on the trial without a leader. He got 100% for complete honesty.
In fact on many occasions a junior may have to "hold the fort" during the temporary absence of the leader. I have a forthcoming trial which clashes with an existing two-day hearing before the Law Lords in the Privy Council. In fact the trial will not sit on those two days, but it would be quite easy as an alternative for the junior to carry on alone for those days. However carefully a court diary is planned, clashes will occur. Whilst the consent of the client will of course be obtained for disappearing in such circumstances, and such a situation is never ideal, sometimes events conspire to make this happen.
I was once listed to do a trial which would commence shortly after another trial I was doing. The week before the first trial the other side were allowed to substantially amend their case, on the basis that they said it would not affect the trial estimate. Our side considered that the effect of the amendment would make the trial three times as long. The amendment was allowed, and it was very quickly clear that our estimate was correct. That meant that I would not be available for the start of the next trial, and advised accordingly. The suggestion was put to me that, as my client was the claimant, it wouldn't matter if I missed the first week of the trial. It was indicated that I could write the opening speech for a junior to read out, and arrive at the end of our witnesses just in time to cross examine the other side. I regarded that as a recipe for disaster. What if I hadn't arrived even when the other side witnesses started to give their evidence? In any event I would have missed all of the evidence given by our witnesses, and while concluding another trial could hardly keep up to speed with that. A leader is better off not attending at all than attending without having had time to do justice to the case.