Just Right

Say what you need to say, take things as far as they need to be taken, and then stop. This is a golden rule for advocates, but easier to state as a rule than to follow.

One Question Too Many

A typical illustration of this is the "one question too many" example. Cross-examination is, in large part, about securing admissions from witnesses who have said something that you must challenge on your client's behalf. ("Although I said I was 10 yards away when I identified the defendant, perhaps it could have been as much as 30.". "When I said that Mr Bloggs was at a meeting on 24th October, I might have been wrong."). In fact many of the examples that you hear of the "one question too many" rule are unrealistic because they only expose things that were likely to come out in any competent re-examination. (For example the fit looking but not particularly large gentleman who was a prosecution witness against three attempted muggers, all of whom had had to be taken to hospital after their attack. The jury seemed baffled by how this could have happened if the witness had been attacked in the way he stated. It might not have been inclined to accept his explanation. Counsel unfortunately asked him how, if matters occurred the way he said, he was able to fight off three larger men. " If I had not been a fourth dan black belt in karate I think I might have been in trouble." was the response.) The rule is however an important one. It is one aspect of the general rule that in cross-examination you get what you need or can realistically expect to get, and to do anything else is to risk getting answers that can be fatal to your client's case.

An Illustration

Sometime ago a case took place relating to a northern city which we will call Chespool. These were proceedings about business rates. Business premises, owned by company X Ltd, were given a certain rateable value in the then new valuation list. That value would determine the level of rates (local property tax) that would be paid by X Ltd over a long period of time, and so there was a lot of money at stake. X Ltd thought that the value put on their property was way too high and so took the means of challenging this before the Lands Tribunal, a type of court set up to determine various property issues including rating. There were three parties before the tribunal. The valuation officer, who had determined the value for rating purposes, the local council for Chespool, and X Ltd. All of the parties from X Ltd who attended to either give evidence or instructions lived in Chespool and were ratepayers of Chespool (what would now be council tax payers). All three parties were represented by Counsel, but obviously the valuation officer and the local council were on the same side looking to achieve the same result namely that the valuation should stay as it was.

The brief fee

The local council were represented by a well-known QC. In those days the brief fee was always clearly marked on the front of the brief as were the refreshers. It was a five-day hearing. A lot of money was at stake for the local authority, not just because the amount to be paid from this particular property was significant, but because what happened with this valuation could affect a number of other business premises. The QC was paid what in today's money would be a brief fee of about £40,000, and £5,000 per day. Although there would be the prior preparation, if the hearing lasted for five days that would be £60,000 in total. Needless to say, once someone had seen this marked on the front of the brief, within the first day everybody at the tribunal hearing knew how much he was being paid.

Frothing at the mouth

Counsel for the valuation officer had to go first and was especially thorough. He was trying to prove exactly the same as the local council. Therefore when he had dealt with each witness, because he had done a really good job there was not really anything else to say. Apart from about two questions during the week, all that the QC said was as follows. "I adopt in its entirety the cross-examination of my learned friend for the valuation officer. As you will appreciate, my concern is the interests of the ratepayers of Chespool.". At this he would sit down with a flourish. There were lots of ratepayers of Chespool in court, most of them there with X Ltd. Most of them were frothing at the mouth at the amount of money being spent on the lawyer who was not actually in practical terms saying or doing anything. The more so when they felt it was a bit rich for him to comment on the interests of the ratepayers of Chespool when he was costing them so much. It seemed to make it worse that in every adjournment of the QC would stand on the steps at the entrance the tribunal, smiling cheerily and smoking a cigar.

A duty to stay silent

Whilst their concern was understandable in fact they missed the point. The QC had been instructed because the local authority had complete confidence in him. He was there to make sure the case was presented properly. As it happened in each instance he was content with the work that Counsel for the valuation officer had done. Had he not been he would have pursued his own cross-examination. However if he was happy his duty was to stay silent. It would have been against his client's interests for him to approach matters on the basis that because he was being paid a lot of money he had to be seen to be saying a lot of words. He was paid to use his skill to make sure that things went the right way. He did. They won the case. Even though the employees of X Ltd probably to this day when they talk about court cases talk about what a waste of money he was.

If he had gone on at great length he might have sounded as though he was earning his money, but might have been doing anything but.

The experienced lawyer

Next week we will consider various other ways in which going on for too long can damage a client's case. Having the courage to know when to stop is a key part of being a successful trial lawyer. If a celebrity chef adds a particular ingredient until the taste is delicious and just right, he would not keep adding more in the hope that it might ultimately get better. An experienced lawyer is not thinking about how everyone sitting at the back of the court will judge him. His aim is to persuade the party making the decisions, whether that is a jury, a judge or the members of the tribunal. That is why in the Lands Tribunal case the QC made exactly the right decision. Everything was just right for his case, and he had the experience and courage to leave it that way.

Michael J. Booth QC