ADVOCACY – THE JUDGE;S VIEW SERIES 2 PART 5: LAW AND THE WHIRLIGIG OF TIME: LEARNING TO LOSE A CASE WELL

It is difficult to review a book like Stephen Sedley’s  Law and the Whirligig of Time. A wide ranging series of essays that covers everything from the “role of the judge ” to Bob Dylan and Under Milk Wood.  It is a book that is impossible to categorise. I have taken a small part of the book to fit it into this series. This does not do justice to the entire book which is fascinating reading.

THE AUTHOR

A while ago, as first year students, my colleagues and I were surprised one day to find our usual be-jumpered law lecturer was absent. In their place was a be-suited junior barrister who told us he was going to tell us about procedure. A talk about “Pleading”, “interrogatories” and some mysterious tome called the “white book” followed. It was interesting, well delivered and obviously  fresh off the mark. But it was different to our usual academic fare and we left the lecture safe in the knowledge that procedure was unlikely to feature heavily in our futures. What do lawyers have to know about procedure after all?

That junior barrister, Stephen Sedley, went on to become Sedley LJ and many of his experiences and interests feature in this book. (although,curiously, nothing about the traumas of teaching first year law students in the 1980s).

 

GETTING IT WRONG

The chapter of most interest to us is chapter 40 “Getting it Wrong”

“Any Advocate can get it right. It just takes application, learning and judgment. What requires inspiration and an occasional touch of genius is getting it hideously and irretrievably wrong: not just losing, which call advocates do half the time, but screwing up big time”.

The examples given run from Dickens to Theo Herbert.  It deals with the age-old problem of pronunciation of legal Latin and the young advocate who was wanted to submit that the order of the court was “ooltra weerayze”.

Don’t you mean “ultra vires”? asked the judge.

“No my Lord: I have never heard that expression before.”

MEETING AN OLD BUFFER ON THE TRAIN

It also tells the story of a young advocate who met a “nice Old buffer” and his wife on the train. The advocate spent the train journey telling the nice old buffer how he was going to appear in front of a High Court Judge held in low esteem by the legal profession as a whole.  A judge who had no merits but married money and gained advancement without any personal merit. The advocate’s stories were in mid-flow when the train arrived.

The High Sheriff of the County was on the train platform. To welcome the barrister’s fellow passengers – the High Court Judge and his wife.

(There is a warning there for many advocates).

THE JUDICIAL PUT DOWN

Mr Justice Maule, in 1852, considered an “innovative” argument

“The last point is perfectly new, and is so startling that I do not apprehend that it will ever become old”

BEWARE OF HUMOUR IN COURT

“For my generation of barristers, one way of getting beaten to death in open court was to crack a joke in Lord Justices’s Megaw’s court. Cracking jokes is the prerogative of the bench”.

LEARNING TO LOSE A CASE WELL

The final section, however, contains advice to the advocate.

“There’s no talisman against getting it wrong, except getting it right. Getting it right, however, doesn’t necessarily mean winning. Possibly the hardest thing to achieve in legal practice is losing a case well. By this I don’t mean going down with all flags flying, guns blazing and band playing. I mean leaving court knowing that you couldn’t have done more: if you can get that right, you won’t be getting much wrong.”