Nothing to say

Nobody will believe that a barrister could ever find themselves in a position where they had nothing to say. However sometimes you are pretty close to it. Recently I have had two different barristers ask my advice about cases in which they have been instructed where they can find virtually no arguable point.

Hopless cases

You might wonder how any case that was hopeless could ever get so far. There are a number of ways. The first is it might be a case that no one has ever considered that bumbles along to a hearing. Or someone might have taken a view which is radically different to the one you take. (There are occasionally barristers who give very strong advice but who are then unaccountably unavailable when the case comes to be heard, leaving someone else to step into the breach). What seemed a good case may change when other facts come to light. In other cases the client is simply not interested in any negative advice, believes he or she knows best, and insists on the case proceeding. In those circumstances you just do the best you can.

Judges forget

What does not help is that judges can sometimes forget what it was like to be a barrister. They forget the hopeless cases that they got landed with at the last minute. They can assume (and make their view pretty clear) that the barrister in front of them is obviously too stupid to understand the weaknesses in the case, and that it is purely down to the barrister that the case is being misguidedly pursued. They never consider that perhaps either some other barrister or the client is the one who insists on the case being brought, possibly against your advice.

I remember one such case, a High Court trial a long long time ago. Long before CPR, and before even the raft of practice directions dealing with trial preparation. Thus the trial bundles were literally brought to the hearing.

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I had had no prior involvement with the case before the trial day, but the solicitors were worried that the client might lose, the client was sure that he would win. The client was "morally" right, but there were a number of legal difficulties in the case. It was plain that the judge didn't think much of the case as I attempted to open it. Fate conspired against me. When the judge was being difficult against a case he plainly regarded as hopeless, I decided to try and press home my best point. I told the judge to look at page 24. I told him what he should deduce from the first paragraph. He indicated that was a ridiculous suggestion to make based on that paragraph. I politely disputed this. After some increasingly fierce exchanges, I asked the judge to read the first sentence and see that it supported a particular proposition. He said that was nonsense. I then quoted the sentence. He said "my first sentence doesn't say that". My page 24 was different from his page 24. He then asked my opponent. His page 24 was different again. The bundles had been incorrectly paginated (page numbers put in) in error. Things went from bad to worse. During the mid-morning coffee break I managed to persuade my opponent to pay some money to settle the case. The client, having seen the way things were going, was pleased that we had been able to do a deal. I was surprised that the other side were prepared to pay us any money, but since nothing is ever completely certain in a court room, they could have refused and then found by day two of the trial that the judge was taking a different view.

Make it brief

So how do you deal with the situation where you are landed with Mission Impossible? Especially when you do not get the option of refusing the mission! You focus on your best point or points. You do your best to sound confident and convinced that your arguments are correct. You make it brief. You may well be trying the judge's patience anyway. Nothing to be gained in trying it to breaking point. Besides, if you keep it brief and persuasive, he has less time to work out why the argument is in fact a load of old rubbish.

Michael J. Booth QC