How to win a hopeless case

I’ve often heard TheBusker chuckle about the many ways to win even the most hopeless of cases. ‘Everything’s winnable once you have a real, living and above all fallible judge sitting in front of you. Maybe you’ll start off chatting about the weather or a particular detail relevant only to him such as his mother’s health or son’s prospering career as a solicitor. But even if the usual lines of attack fail, you should always, and I mean always, have a scales of justice speech up your sleeve. Get that right and it’ll never fail.’

Yet despite the speech having entered the realms of legend, I still haven’t yet experienced it first hand. Well, until last week at least when closing speeches were due on the liability issue in the case I was fighting against him. So with this in mind, you’ll understand why a shiver went down my spine when TheBusker stood up and said,
‘Your Honour, the scales of justice…’

No! Not the scales of justice! Anything but that…please! I stood up to object almost as some kind of Pavlovian reaction. TheBusker gave me a kindly smile and sat down to allow me speak. Which exposed the fact that in reality I had no grounds for stopping him other than stamping my foot and moaning ‘it’s just not fair’. He then stood up to resume his speech.

‘Your Honour, the scales of justice are a finely balanced instrument which have been used down the ages to settle disputes both great and indeed small. A constant in our lives which for most of our lives we simply take for granted. But very occasionally one is faced with an extraordinary decision where then scales are so finely balanced as not to be able to determine whether they are falling down on one side or the other. At those rare times it takes but…’

He theatrically dipped his hand into his suit pocket and as if from nowhere produced…

‘…a small feather to tip the scales one way or the other. Just the very smallest thing to make the difference between one side’s case and the other. Your Honour, this is one such rare cases in which the scales are indeed balanced. We say one thing and the other side say the other but in reality we are equally matched.’

His voice dropped as he continued.

‘Thankfully Your Honour, when the cases are indeed evenly matched then all we ever have to fall back on is the burden of proof and that lies today with the Claimant. Sadly for him, Your Honour, in the absence of that little feather…’ with which he dropped his own one to the ground, ‘the case must be dismissed.’

Well, it was obvious to us all that the judge was utterly charmed by the performance. After that no amount of my trying to tell him that our independent witness counted for enough feathers to fill a whole courtroom was ever going to change his mind.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

March 3, 2015 · Tim Kevan · No Comments
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Simples

‘Nothing’s ever simple any longer.’ It was OldSmoothie lamenting once again. ‘The bigger picture’s been lost forever and we’re all just buried in details and small print.’

‘And whose fault do you think that is?’ asked BusyBody.

‘Of course, it’s got nothing to do with lawyers,’ added UpTights.

‘Clever commercial lawyers who draft terms and conditions which allow companies to do over the little man, maybe,’ he replied. ‘But certainly not us good old-fashioned common lawyers.’

‘Oh, listen to the champion of the little man,’ smiled TheVamp.

‘I like to think I have my moments,’ said OldSmoothie.

‘And of course you’d never take a technical pleading point or kick a case out that had missed limitation?’ said BusyBody.

‘That’s completely different. That’s just our job,’ OldSmoothie replied. ‘We do what we’re instructed to do.’

‘If anything, surely we should be celebrating the modern world’s obsession with detail?’ said TheBusker. ‘I mean, if it wasn’t for solicitors instructing us to take technical points we’d all be out of work.’

Which silenced OldSmoothie for the rest of tea.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

February 24, 2015 · Tim Kevan · No Comments
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Late payment

‘I received a cheque today for a case I did over twenty-five years ago.’ It was OldRuin and he was smiling as he told the story at chambers tea. ‘It was accompanied by this note from the senior partner of the firm of solicitors who sent it:

“Dear OldRuin,
I realise that even by the tardy standards of my own side of the profession, twenty-five years is a little excessive but I thought you might in any event appreciate the fact that we do at least always stand by our word and pay our bills. While I realise that the sum of £35.48 is hardly going to go very far in today’s money, I thought that the addition of a magnum of champagne to accompany it might at least cover the lost interest you might otherwise have been earning.”‘

OldRuin then pointed to the trolley which normally carried the tea and said,
‘I thought you all might like to join me in celebrating my latest windfall.’

‘What are you going to do with the cheque?’ asked TheVamp.

‘I will put it inside the frame which sits in my downstairs lavatory at home with the title “Chamber of horrors”. It will replace the cheque which is currently in there and which was paid only sixteen years late.’

With which he proceeded to fill the glasses and pass them around before TheBusker proposed a toast:

‘May solicitors keep us in work for many years to come by being as bad with their other deadlines as they are at paying our bills.’

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

February 17, 2015 · Tim Kevan · No Comments
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The glamour of the bar

“I suppose you must have been busy recently,” said my mother yesterday.

“Er, yes,” I replied. “Same as ever, I guess.”

“But what with all the rioting and the like,” she continued, “I imagine it must have been particularly hard. Since you’ll have got the call up, that is.”

“The call up?”

“Oh, I don’t know what you call it but I know what goes on behind the scenes.” She tapped her nose conspiratorially.

“What?”

“Oh, that’s right. I wouldn’t expect you to let on. Very good, BabyB. The country’s in safe hands with you and your friends pulling the levers.”

“Safe hands? Levers?” By now I was completely lost as to what she was trying to imply. “Mother, I honestly have absolutely no idea what you’re going on about.”

She started to look a little doubtful. “Er, well, maybe I’m wrong. It’s just that I’ve always imagined that now you’re part of the great British establishment you get called up whenever there’s trouble which needs sorting out behind the scenes.”

“What? The temple horn is sounded and we flock from all corners of the kingdom to some sort of special grand wizard’s council for barristers and save the city from ruin?”

She brightened up. “Exactly.”

“Where we get to wield our trusty horse-hair wigs like magic wands and zap all the muggle rioters back into their boxes.”

“You see, I knew it went on.”

“Yes, mother,” I relented. “You’re right.”

If only she knew the true size of the gap between perception and the reality of my small claims track road traffic hearings in the likes of Swindon, Slough and Watford County Courts.

BabyBarista is a fictional account of a junior barrister written by Tim Kevan whose new novel is Law and Peace. For more information and to read past posts visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

February 10, 2015 · Tim Kevan · No Comments
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Time clock

OldSmoothie had a solicitor client today who was wise to OldSmoothie’s billing tactics and was extremely keen to keep the costs to a minimum.

‘I didn’t send any papers along as I wanted to be with you when you were going through them.’

‘No problem at all,’ said OldSmoothie. ‘Now, would you like a coffee before we get started?’

At this the solicitor clicked his fingers and the assistant he had brought along with him, especially for the purpose, brought out a huge stop watch and ostentatiously stopped the clock from running.

‘You know, OldSmoothie, that’s extremely kind. I’d love a coffee and I’d also be delighted to talk about the weather, football, politics or whatever else takes your fancy. Just so long as it’s not on our time.’

‘Er, yes, well, quite. Certainly. Yes.’

With which OldSmoothie conducted what was possibly his fastest conference since he became a QC.

February 3, 2015 · Tim Kevan · No Comments
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Kangaroo court

Earlier this week it was TheVamp suffering judicial ignorance. Today I had the pleasure of being subjected to the following judgment:

‘Mr BabyBarista tells me there is clear court of appeal authority to say that I cannot find for the proposition put forward by the other side. That may well be so. But this is the small claims court and we all know full well that in reality Mr BabyBarista’s insurance company is never going to appeal such a small case.’ He gave me a cruel smile before continuing, ‘Which of course means that I am not only completely free to disregard such high-minded authorities but very much intend to do so.’

When I mentioned this to OldSmoothie later, he chuckled and said, ‘The funny thing is, BabyB, that while parliament is constrained by Brussels and the supreme court by Strasbourg, the very lowest court in the land is in reality the last unappealable and truly sovereign body left.’

‘Nice to know that someone’s prepared to give a show of independence at least,’ said HeadofChambers.

‘What, through a kangaroo court overturning not only the rule of law but any hope of justice for clients as well,’ I said a little tetchily.

But hey, maybe I’m just a sore loser.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

October 28, 2014 · Tim Kevan · No Comments
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I’m appealing

UpTights was against OldSmoothie today and his pupil reported what happened later in the day. When she turned up, she looked more uneasy than usual.

‘I’ve started a new diet,’ she said somewhat defensively as she approached. ‘Four hundred calories a day all taken as liquid.’

As she got closer the reason for this introduction became clear. ‘Woah, you could strip paint with that breath,’ said OldSmoothie.

‘Yes, er, well,’ said UpTights. ‘I don’t think there’s anything more to discuss.’ With which she turned on her heel.

OldSmoothie then turned to his pupil and said, ‘Go and tell the usher that UpTights has suggested we use the small courtroom given that this is only an interlocutory hearing.’ He smiled smugly and waved over at UpTights.

Well, the first thing you should know about courtrooms is that there’s no air-conditioning. What’s more, the small side rooms tend to be tiny and er, somewhat intimate. So when we were ushered through, UpTights looked distinctly worried and it turned out with good reason.

Once the judge got a whiff the hearing was cut short with a very quick finding against UpTights’ case. As they were all leaving the courtroom, UpTights said somewhat sulkily: ‘Anyway, I’m appealing.’

‘On today of all days,’ came the reply, ‘that statement really couldn’t be further from the truth.’

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

October 21, 2014 · Tim Kevan · No Comments
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Handling the client

I don’t know what it is about family law barristers but there’s a large number that seem to take the whole thing extremely personally. I say that after having had to endure such a case this morning. As I sat flicking through my papers in the robing room, the peace and tranquility was suddenly interrupted by what felt like a human whirlwind.

It was a male barrister about the same age as me and he rushed in with an air of great urgency and self-importance. Given that there were only two others in the room, it was then more than a little odd for him to shout out,

‘Who is the barrister representing Mrs Smith in the divorce hearing today?’

I indicated that it was me. ‘I think everything’s agreed,’ I said.

‘Far from it,’ he said. ‘I’m not at all happy about giving you all that money and I’m going to tell the judge in no uncertain terms.’

‘You mean your client’s not happy about giving my client all that money,’ I corrected before adding, ‘Have you seen the consent order?’

‘Of course I have,’ he said dismissively. ‘But it isn’t going to stop me telling the judge what for.’

Which is exactly what he did, much to the consternation of the judge who generally deals with personal injury cases and interrupted him with,

‘I don’t know where you usually practise but let me tell you very clearly that I don’t appreciate grandstanding in this court. All the more so when it has no purpose other than to vent the feelings of your angry client. Remember, it is your job to control the client just as it is my job to control you.’

There was silence followed by a, ‘but…’ which went no further after the judge looked at him and raised his eyebrow as if disciplining a young pup.

The barrister sat down and his client started poking him angrily in the back.
‘And may I add,’ said the judge. ‘That if your client isn’t happy with your performance that you might consider the point that you reap what you sow. Always keep a professional distance and never get emotionally involved with a case however much you might think it helps at the time.’

Another ‘but…’ followed and an even sterner looking eyebrow shut him up before the judge rubber-stamped the order and pointed towards the door.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

October 14, 2014 · Tim Kevan · No Comments
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Judicial assistance

Okay, so here’s an admission. I do a lot of car cases. I cross-examine other drivers on their driving abilities and have a go at them for breaching the Highway Code. Pretty average for a common law barrister, you might say. That is, were it not for the fact that I’ve never actually learned to drive. Now in any other line of work this shouldn’t be a problem.

Shipping lawyers don’t have to be sailors and aviation lawyers certainly don’t need a pilot’s licence. The problem is that if a client is ever going to take you seriously in conducting his precious road traffic case, the very least he expects is that you are also a driver and not only feel his pain but understand exactly what he is going on about.

Now don’t get me wrong. This generally isn’t a problem. If I don’t know what a hub cap or a crank shaft is, I simply say ‘For the benefit of the court, could you perhaps enlighten us as to how a particular thing works’. But today the truth was very nearly out.

You see, I was cross-examining a man who had an irritating habit of answering my questions with a question and at one point he turned to me when I was being particularly aggressive and said, ‘Do you drive mate?’ I ignored it and tried to continue. ‘No, mate,’ he continued, obviously smelling blood. ‘You’re on this big high horse and everything. Just tell me this: do you even have a driving licence?’

I was absolutely stumped and looked like a rabbit in the headlights with nowhere to go. As my initial pause turned into what felt like a deafening silence my client started to look at me a little suspiciously. Eventually and in blind panic by this point, I turned to the judge for assistance. He gave me a knowing look before turning sternly to the witness and saying,

‘It’s not for Mr BabyBarista here to be answering the questions and if you continue in this belligerent manner I will have no alternative but to commit you to the cells for contempt of court.’

The judge gave a kindly smile, my opponent smirked, and I lived to fight another day.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

October 7, 2014 · Tim Kevan · No Comments
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Blustering buffoons

‘One of the great advantages of being a barrister is that it’s almost completely unaccountable to the people who employ you in the first few formative years of practisc.’ It was OldSmoothie lecturing one of the new pupils.

‘Formative in the sense of making mistakes off the backs of others,’ said HeadofChambers.

The pupil looked a little taken aback and BusyBody stepped in to explain.

‘Solicitors, you see, are simply too expensive to be dealing with the smaller level of claims and hence the need to instruct the baby Bar.’ As if that somehow made it better.

‘But the irony of all this,’ said OldSmoothie, ‘is that going down in flames on behalf of a client often causes more gratitude to be fed back to the all-important solicitor than ever a clinically brilliant display of advocacy leading to a victory might bring.’

‘Like you’d know what that is OldSmoothie,’ said UpTights.

He ignored her and continued, ‘Which of course means that the system therefore encourages the success of the over-confident, grandstanding losers in the early years.’

UpTights raised an eyebrow but resisted the temptation to comment.

‘Until that is the cases get bigger,’ said OldSmoothie, ‘and solicitors can justify coming along to watch. It’s only then that they realise quite what monsters they’ve been feeding.’

‘I was against just one of those today as it happens,’ said TheVamp. ‘The problem is that inexperienced counsel come in front of inexperienced district judges and it’s quite literally the blind leading the blind. The more he emphasised his terrible points with “It’s obvious, Sir” the more the district judge seemed to agree with him and whenever he buried his head in his hands muttering ‘Complete rubbish’ the judge simple frowned at me.’

‘Truly a meeting of minds,’ chuckled TheBusker.

‘That might going a little far,’ smiled TheVamp. ‘But a meeting of some sort at least.’

BabyBarista is a fictional account of a junior barrister practising at the English Bar, written by barrister and writer Tim Kevan. For more information and to read posts from the last few years visit babybarista.com. Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

September 30, 2014 · Tim Kevan · No Comments
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