Sunday, 26 August 2012


I realised some time ago that, no matter what other rules to follow as an advocate, there is only one rule that should apply to everything an advocate says and does in court. I'm certain it's the only important rule for an advocate to obey, even though it's broken by all advocates some of the time, and by some advocates all of the time.

Don't be boring.

Some advocates hate the idea of trying to entertain. Some, perhaps, see themselves as engaged in too serious a business to dwell on the way they deliver the message, rather than concentrating exclusively on the message itself. These advocates will inevitably be less successful. It's self-evident that if nobody is listening to a word you're saying, it makes no difference how brilliant (or true) your words might be.

One of the areas where court proceedings are often at their most boring (and that's saying a lot) is where an advocate feels compelled to put a long, droning series of propositions to their opponent's witness, for fear of being caught out in a breach of Browne v Dunn:

PROSECUTOR: You then took the chocolate bar, didn't you?

PROSECUTOR: You then left the shop, didn't you?

PROSECUTOR: You're lying now, aren't you?

It's an opportunity to present their case theory, I suppose. But it's not going to yield any surprising results, and as an exercise in 'testing the mettle' of a witness it's not very effective. It's not possible to draw many conclusions from a series of predictable denials, and the more protracted the process the less interesting (and useful) it proves to be.

When this formula is delivered well it is merely neutral to the party doing it. When done badly, it looks desperate and inept. Oh, and beginning each and every question with, 'I put it to you ...' doesn't improve matters.

We've discussed this dilemma here before. Iain Morely suggests making the process less self-damaging and more pleasant for everybody by inviting the witness to disagree:

COUNSEL: I suggest you are mistaken in your identification, but you disagree with that, don't you?

As a way of meeting puttage obligations without ruffling anyone's feathers, it could work. It has the advantage of being unusual, so that's good, even though I can see it becoming equally repetitive in the wrong hands.

I was reading an article by the late Brian Donovan QC on the weekend, from the presentation he used to give (prior to his elevation to the bench) to the NSW Bar Practice Course. He suggested a couple of other ways of putting the client's version to a witness, and another reason for doing it (around page 5 of this version):

1. Gentle irony

Donovan warned against the use of heavy sarcasm, which most tribunals find grating (and unprofessional). But, he suggests, beginning puttage statements with a phrase like, 'I don't suppose it could possibly be that ...' can avoid coming across as unpleasant, and makes the flat denial that will likely result seem more unreasonable.

COUNSEL: I don't suppose it could be that she got into the car first?

COUNSEL: I don't suppose that it could be that you didn't see the entire incident?

COUNSEL: I don't suppose, on looking back on this incident, that it's at least possible that you are filling in a few gaps in your memory?

The answers are the same either way, but the gentle way in which the propositions are put may given them a weight they wouldn't have otherwise.

2. Mix it up

There's no rule that every question needs to be delivered using the same sentence construction.

'So and so happened, didn't it?'
'Would you consider this ...'
'Would it be true to say ...'
'Was it the case that ...'

They all do the same job. But like an advocate who says, "Your Honour" at the end of every sentence, the same syntax very quickly becomes a meaningless litany.

Donovan wasn't absolutely against the use of repetitive puttage, but only where it was certain that subsequent witnesses would contradict (hopefully, overwhelmingly) the version of this witness. He also pointed out the persuasive value of a repetition of the account later to be given by defence witnesses (of exactly the sort that R v Christie [1914] AC 545 prohibited).

Any other suggestions for getting around classic, boring puttage?

1 comment:

Anonymous said...

Please post more on advocacy! it is very helpful as my colleagues and I begin this year's readers' course.

Also, some tips for beginning barristers would be greatly appreciated.