Gallavin on Litigation: Play to your audience

By Dr Chris Gallavin

I am not sure what is more fascinating, the in-court behaviour of Pistorius, the media attention lavished upon his counsel Barry Roux or the over-the-top public clamour for more of a case that has captured the world’s attention.

In this week’s column I will explore the influence of dramatics in court – its role, its influence and whether our largely conservative style of court etiquette does or ought to allow for the playful but high stakes game of entertainment.

Amateur dramatics aside, a litigator must never underestimate the importance of knowing his or her audience.

I am sure litigators will agree with me when I say that more important than the fixture date is information on who the presiding judge will be. This is as important in criminal cases as it is in civil hearings and forms the specific basis of much wringing of hands in the context of appeal court arguments.

Research on past judgments and learning from those colleagues with differing experiences of appearing before your assigned judge is an investment of time well worth the possibility of writing it off as non-billable hours.

Submissions, both written and oral, can take quite a different form once research is complete on the style, habits, and the pet likes and dislikes of particular judges.

I recall appearing in a case in the Court of Appeal and being faced with a bench of three, two of whom I knew in advance would take diametrically opposed views on a specific point. “I want to hear your submissions on the law/fact divide,” I was directed, only for that to be immediately quashed by his brother judge not interested in such academic naval gazing. I was tempted to quietly sit down while their honours debated – however they abruptly stopped and looked at me with what appeared to me to be baited breath awaiting whom I would implicitly crown with my submission. My suitably respectful submission was consequently so watered down that I doubted that I had made either judge happy with my words.

Although I do not know counsel in the New Zealand Poultry Board case I am sure that their submission to Justice Cooke was suitably worded to reflect that there was a long line of authority establishing the existence of the principle that there existed some common law principles so fundamental that even Parliament could not usurp them. Counsel was no doubt wise and would have stayed quiet on the fact that the binding authority was all that of Justice Cooke himself.

Making it easy for your audience, judges and juries alike, to accept your argument or evidence is an important component of success.

Likewise, an ability to read the play in a hearing is vital in order to be a successful advocate.

Advocacy ought not to be pre-planned to the minute degree, leaving no room to move within a hearing or submission. Just as the great rugby players of this country are outstanding for their ability to read the game as much as their physical superiority so, too, advocates must be nimble on their feet, recognise their opponent, and acknowledge their audience.

But what about amateur dramatics?

A peculiar aspect of the Pistorius case is that, if the newspapers are to be believed, his behaviour is for the benefit of a professional judge and two lay judges only – not a jury. The accusation of playacting is somewhat diminished in these circumstances, although judges are not to be presumed as heartless creatures of little to no ability to be influenced by such actions, particularly where the fact in issue is intention.

In my column on the frailties of demeanour evidence it was implicit (I hope) that judges were often just as susceptible to the drawing of unsound conclusions of witness box behaviour as members of a jury. However, behaviour of a criminal defendant aside (whether theatrics or genuine grief – note I am being careful with my words) is not really what I want to focus on, rather the actions of counsel.

Turning to face away from a witness when cross-examining them, looking at the ceiling or anywhere but the witness while asking preliminary questions before turning to cast a deathly stare at the witness at the pivotal moment is, of course, the great stuff of Perry Mason but is hardly Denny Crane material. But so is our system and I, for one, would not like to see the New Zealand courts hijacked by overly dramatic counsel hell bent on stating, ‘… you can’t handle the truth!’

Human nature however does, and will always, have a role to play in litigation and as such the personality of an advocate must be allowed to shine through, idiosyncrasies and all. You must give a flavour of who you are even if, I dare say, you are a criminal prosecutor who has taken the duty of dispassionate delivery to the extreme.

Some, and you know who you are, have to fight the urge to exhibit your flamboyance to the court. We are most definitely not permitted to be rude, particularly if that judge is our audience and we want him or her to accept our argument.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence. 

This article was first published in LawTalk 843, 6 June 2014, page 24.