About

I find it difficult when discussing law to convey the strange mix of excitement and stress when I am doing a case.

When read in a certain (perverse?) way, legal textbooks and practitioners’ text can be exciting. Lord Sumption has commented on air that “Law is nothing but common sense with bolts on”: but what strange and wonderful bolts.

In ordinary life, however argumentative, there are only so many conflicts we can get into and so many arguments one can make. But the law reports (i.e. decisions of specific cases) are full of (often bizarre) conflicts, with each side taking an apparently persuasive positions.

Unlike in ordinary life, where arguments are often unresolved, the Judge has got to sort it out one way or the other (and churning out another judgment for lawyers’ admiration and study).

How did we get here? What happened between the time when they were perfectly ordinary individuals, and the time when they were each represented by someone in wig and gown, trading accusations in legalese?

These are the themes I want to explore. The key points I want to make are roughly as follows.

Assembling the cast: client walks through the door

  • The client needs 3 kinds of people to help with a litigation/potential litigation:

    • Person A: who does all the mechanical/administrative parts for him
    • Person B: who talks to him as a sympathetic friend and helps him navigate the process
    • Person C: who advises at one remove and tells the best story for him as can be done before a Judge

  • But they don’t make lawyers that way:

    • Professionals need stream of income: hence “practice areas” for repeat/corporate clients, not the occasional litigator.
    • Legal professions were not carved out deliberately: barristers and solicitors elbowed out the Sergeants and settled into what they are by historical accident.
    • Solicitors and barristers often have to work as Persons A, B and C at the same time, which is no good. But there is no obvious way to change this either.

Setting the scene: pleadings and paper evidence

  • Clients give the raw materials, lawyer crafts the story
    • by whittling down the case to the minimal legal essentials.
    • and emphasising the best points (and de-emphasising other points) in their subjective judgment.
    • The other side responds and the story develops.
    • by the time it goes to Court, the whole debate may be transformed into something else all together.

Acts in the Play: interlocutory applications, trial and execution

  • In the litigant-driven common law system, there are almost countless options to move things forward, slow things down, and add twists and turns before the trial.
  • Before trial, judges need to assess the merits time and again by reference only to lawyers’ written materials.
  • By the time witnesses is heard only during trial, everything has been framed by the lawyers many times over all stages of the case.
  • People want judgments (some time empty judgments) for many reasons. Monetary considerations may not be the only one at play.

Criticism: the meaning of it all

  • The judgment is just a snapshot of the situation taken by specific people. It doesn’t have to vindicate/condemn; win or lose, one has to move on after a time.
  • There can be no objective test for the best lawyer or best way of fighting a case. Everyone is in the end all just a story-teller doing the best with the raw materials within the stories of their lives.

For these points, I rely partly on my time a judicial assistant, pupil barrister, and barrister.

But these are philosophical reflections with no uncontroversial right or wrong answers. Different lawyers probably think about them differently; most probably don’t slow down and ponder. Which is exactly what I want to do in these blogposts.