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Tales from the dark arts of advocacy. By William Byfield
I was what used to be called ‘a mistake child’. The thought first struck me when I was 14 and sitting in the kitchen while my mother made me a late eggs-on-toast. Although we had a spacious kitchen with a large kitchen table, it would not have satisfied the people I watch on Escape to the Country, to whom the need for a kitchen the size of Edinburgh Station seems to be paramount. My mother was standing with her back to me at a Rayburn range that would however have more than satisfied those on ETTC. I asked: ‘Why did you have another child in your 40s?’ There was a very slight pause, familiar to counsel when cross-examining, before she answered: ‘We love you just as much dear.’ I had my answer and, since even I had to acknowledge to my siblings that I was clearly her favourite, I had no reason to feel slighted.
Today, 11 April, is her birthday. She was born three days before RMS Titanic foundered. Time is a strangely subjective commodity. My father had a great-aunt who died at 102 and who had campaigned for Gladstone. We met in her final year. When we entered her house in Stratford, the door was opened by an extremely elderly-looking lady. ‘Hello, Aunt Janet,’ I said rather nervously. ‘That’s her daughter…’ father hissed in my ear. Great-great aunt Janet was in bed wearing a mobcap, looking about 60, and as bright as a button and told me her views (unfavourable) of Disraeli and Gladstone (the reverse). My interest in 19th century history increased exponentially.
Among other assistance she gave me was that the key to people’s characters lay in their faces. Whether because of that advice I had received or as an acquired trick (or curse) of the trade, I have found it impossible to avoid being conscious of watching faces in court: the ferrety face (reminiscent of Narnia) belonging to the witness who will be sharp and suspicious; the open, honest and frank face of the witness who (for better or worse) is going to tell it as it is; the open but puzzled face (wrong ends of many sticks coming); the face that is reading yours without giving away theirs (common in the outer reaches of any Circuit); the confident witness, the cocky witness, the frightened witness, the face of a liar, the eyes that stare back at you and the eyes that will not meet yours for many different reasons, some cultural.
All of this, a barrister computes in a micro-second, often never having seen the witness before – a calculation that may have to change after a few questions by way of road-testing. Particularly in cross-examination, the brain assimilates new data with every answer given and the only time for thought is the padding cross-examiners insert while the brain goes into overdrive, such as: ‘let me put it in this way’, ‘I am going to put some alternative versions of what happened to you in a moment’, ‘forgive me’, ‘with the greatest of respect’, ‘just let me find the passage’ and many more. Sometimes the process occurs during the question itself. You spot a twitch or a change of look in the witness’ face: sudden shock, they know what I am going to ask and are now looking very nervous or the slight, sly smile of pleasure from the witness who sees the trap into which I am walking. You may need to deepen the question, watching the effect on the witness’ shattered nerves or, with the joyful witness, veer off at speed as if the topic is not worth examination. The dark arts. As we have all experienced in our early years (and occasionally thereafter) the wrong choice can miss a trick or, worse, end in catastrophe.
Unfortunately, it is impossible to restrict this acquisition to court. You suffer the pain of knowing when friends are lying to you and the embarrassment of seeing when they think you are lying to them. And worst of all, as I found out yesterday when stopped by the police for a mild speeding infringement (words of warning only) I knew I was starting to look as guilty as the officer already thought I was. As with all Faustian pacts, nothing is ever for nothing. My great-great aunt also told me her theory about men who had a certain type of liquid-blue eyes, but I think that revelation is for another day…
William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.
I was what used to be called ‘a mistake child’. The thought first struck me when I was 14 and sitting in the kitchen while my mother made me a late eggs-on-toast. Although we had a spacious kitchen with a large kitchen table, it would not have satisfied the people I watch on Escape to the Country, to whom the need for a kitchen the size of Edinburgh Station seems to be paramount. My mother was standing with her back to me at a Rayburn range that would however have more than satisfied those on ETTC. I asked: ‘Why did you have another child in your 40s?’ There was a very slight pause, familiar to counsel when cross-examining, before she answered: ‘We love you just as much dear.’ I had my answer and, since even I had to acknowledge to my siblings that I was clearly her favourite, I had no reason to feel slighted.
Today, 11 April, is her birthday. She was born three days before RMS Titanic foundered. Time is a strangely subjective commodity. My father had a great-aunt who died at 102 and who had campaigned for Gladstone. We met in her final year. When we entered her house in Stratford, the door was opened by an extremely elderly-looking lady. ‘Hello, Aunt Janet,’ I said rather nervously. ‘That’s her daughter…’ father hissed in my ear. Great-great aunt Janet was in bed wearing a mobcap, looking about 60, and as bright as a button and told me her views (unfavourable) of Disraeli and Gladstone (the reverse). My interest in 19th century history increased exponentially.
Among other assistance she gave me was that the key to people’s characters lay in their faces. Whether because of that advice I had received or as an acquired trick (or curse) of the trade, I have found it impossible to avoid being conscious of watching faces in court: the ferrety face (reminiscent of Narnia) belonging to the witness who will be sharp and suspicious; the open, honest and frank face of the witness who (for better or worse) is going to tell it as it is; the open but puzzled face (wrong ends of many sticks coming); the face that is reading yours without giving away theirs (common in the outer reaches of any Circuit); the confident witness, the cocky witness, the frightened witness, the face of a liar, the eyes that stare back at you and the eyes that will not meet yours for many different reasons, some cultural.
All of this, a barrister computes in a micro-second, often never having seen the witness before – a calculation that may have to change after a few questions by way of road-testing. Particularly in cross-examination, the brain assimilates new data with every answer given and the only time for thought is the padding cross-examiners insert while the brain goes into overdrive, such as: ‘let me put it in this way’, ‘I am going to put some alternative versions of what happened to you in a moment’, ‘forgive me’, ‘with the greatest of respect’, ‘just let me find the passage’ and many more. Sometimes the process occurs during the question itself. You spot a twitch or a change of look in the witness’ face: sudden shock, they know what I am going to ask and are now looking very nervous or the slight, sly smile of pleasure from the witness who sees the trap into which I am walking. You may need to deepen the question, watching the effect on the witness’ shattered nerves or, with the joyful witness, veer off at speed as if the topic is not worth examination. The dark arts. As we have all experienced in our early years (and occasionally thereafter) the wrong choice can miss a trick or, worse, end in catastrophe.
Unfortunately, it is impossible to restrict this acquisition to court. You suffer the pain of knowing when friends are lying to you and the embarrassment of seeing when they think you are lying to them. And worst of all, as I found out yesterday when stopped by the police for a mild speeding infringement (words of warning only) I knew I was starting to look as guilty as the officer already thought I was. As with all Faustian pacts, nothing is ever for nothing. My great-great aunt also told me her theory about men who had a certain type of liquid-blue eyes, but I think that revelation is for another day…
Tales from the dark arts of advocacy. By William Byfield
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