26/10/2022Civil Litigation + Dispute Resolution
26/10/2022Civil Litigation + Dispute Resolution
It has become a habit of mine after reading a book that I consider has taught me a lot to reflect + write a blog article sharing my newly discovered "Pearls of Wisdom".
It was a pleasure to read the late Chester Porter QC's autobiography "Walking on Water: A Life in the Law" which covers his long career as a veteran of more than 57 years in the law, 52 as a Barrister.
After reading this blog article I hope you are sufficiently motivated to:
1️⃣ Listen to the archive recording of the series of interviews by John Farquharson in the Law in Australian Society Oral History Project [August 1-2, 2001];
2️⃣ Read the autobiography yourself; and
3️⃣ Seek out Chester Porter QC's other two books (refer to the bottom of this blog article for details).
Chester Porter QC was a leading Australian criminal defence barrister a.k.a. the "Smiling Funnel-Web*" due to his uncanny ability to lay a spider's web during cross-examination for his witnesses to catch themselves in …
His reputed “Chester Porter walks on water” followed his brilliant defence of District Court Judge John Foord, who had faced charges of attempting to pervert the course of justice.
A caricature in the National Times portrayed Foord in a T-shirt which read:
“Judge John Foord Can Thank the Loord”.
* A Funnel-Web is a well-known species of spider in Australia. It is the world's deadliest spider able to kill a human in 15 minutes!
"All young persons contemplating a life in the law as a career should read this book."
"We should all read Walking on Water and be better educated. and no one should embark on litigation before they have done so. By the time they lay the volume down, they will have cooled off, left their solicitor untelephoned, saved themselves a bucket of money, and averted a heart attack." Australian Book Review.
"These memoirs should be prescribed text for legal studies in schools and police academies. Members of parliament might learn a thing or two as well!" The Weekend Australian.
Chester Porter QC's body of published works (including his autobiography) in my view are his Ethical Will / Legacy Letter to the Legal Profession.
As advocacy was such an integral part of his life, he has brought to life the text of his autobiography by recording lengthy and detailed interviews about his life in the law.
Reflecting upon his advice on writing persuasive written submissions in his textbook, I can see that he has "walked his talk" in his autobiography.
In particular, the more I reflect on certain aspects of his autobiography, the more persuasive the pertinent points he has made become.
More than being a memoir of historical events, the text is chock full of lessons learned and objective analysis.
Where progress has been made in law reform he gives due credit, and where reform is still required he clearly articulates the problems and challenges for the legal profession to tackle in the future.
The written submission gives the reader time to think and consider.
The idea is to draft it so that the more it is considered, the more convincing it will be.
It was only towards the end of his long (more than half a century) legal career that Chester Porter QC specialised as a criminal law barrister for first-time offenders. Whilst he didn't think it was possible, he ended up taking silk as a Generalist.
It was only at age 59 (after nearly four decades as a generalist) that he specialised.
Being a general practice lawyer myself I can safely say that in the legal profession as it stands today in Australia it is the road less travelled.
Both the public and fellow members of the legal profession automatically enquire as their first question upon discovering you are a lawyer:
"What area of law do you specialise in?"
I get it, the law has become more and more complex and it is foolhardy verging on reckless to dabble in areas of the law with which you are unfamiliar.
On the flip side, general legal knowledge can be invaluable in providing innovative legal solutions to clients that a specialist might miss.
This humorous quote^ from Chester Porter QC takes these points to their extreme and is apt to include at this point:
Generalist ➲ a person who knows less and less about more and more until finally he knows nothing about everything …
Specialist ➲ a person who knows more and more about less and less until finally he knows everything about nothing …
If you are interested to delve more deeply into the debate please read the following FAQ and surf the Smartlist:
SmartList dedicated to this topic called: The Generalist v Specialist Debate ➲ SmartList
How to decide who is telling the truth in the typical criminal case involving the word of one witness against that of another?
My first contested case was in the Central Police Court. I was defending a young lady charged with saying in or near a public place (the street) to a neighbour the following "insulting words":
"Shut your bloody mouth and give your arse a go."
I have never been too sure what these words (if they were spoken) meant. They were in any event, insulting. Despite my best endeavours and her denials that she spoke the words, my client was convicted, largely on the unspoken rule that her neighbour would not have prosecuted her is she had not said the words. This may be a useful rule of thumb, but is is hardly reliable. Of course, it helps to clear up long lists of cases in lowly courts.
According to the law, the finding of guilt against my client should only have been made upon proof beyond reasonable doubt. The magistrate might have had some idea as to the probabilities, but could he be sure beyond a reasonable doubt?
Being wrongly convicted of insulting words can be a matter for real grievance, as can being wrongly convicted of assault if you were defending yourself against aggression, or being wrongly convicted of sexual assault or rape. All these things happen where one person tells his of her story more impressively than another.
Jack Shand QC taught me a great deal. He was probably the best cross-examiner at the Sydney bar in my lifetime. He was the great propounder of the idea of "shutting the stable doors"; that is, cutting off in advance possible escapes from a cross-examination trap.
For instance, when I gave him the information that the Parker's photo has been taken well after the date of Mrs. King's identification of McDermott from photos, he proceeded in cross-examination of Inspector Calman to obtain innocently and without fuss the following answers:
1️⃣ Mrs. King's identification was from photos.
2️⃣ Parker's photo was one of those shown to her.
3️⃣ Calman took Parker's photo himself and recorded the fact in his diary.
4️⃣ The date so recorded in Calman's diary was correct.
5️⃣ The date of identification was recorded in his diary.
6️⃣ That date was before Parker's photo was taken.
Thus all the stable doors were shut and there was nowhere for the horse to bolt when he was asked to explain how Mrs. KIng could have identified McDermott from photos that included Parker's photo.
We, of course, submitted that the identification from photos was simply not true.
Whilst closing the doors Mr. Shand QC appeared to be fumbling and not sure of what he was doing.
This was appearance only.
When all the doors were shut he was clear enough, and there was no fumbling.
Before I could be a silk I had to have established by reputation and my practice. After the second Voyager Royal Commission I suppose it was only a matter of time until I became a Queen's Counsel. I was afraid to apply, believing - wrongly - that one needed a specialist practice to take silk. I was still doing a lot of State Government work, company work, divorce work, land-subdivision work, common law - just about everything.
Many times I advised clients not to bring defamation cases.
They are expensive, and the results are often unpredictable.
Slander is for spoken words, libel for written words.
In slander cases there can be a real dispute as to whether the words were spoken at all.
In many contract cases I found out how quite bona fide recollections differed as to conversations, and how honest people could get into difficult disputes, each genuinely believing that right was on their side.
The written word, moreover, could be quite ambiguous in unexpected circumstances.
Civil cases involved many facets of human nature. This was especially so in cases about shop takings. A business would be sold and the purchaser would find that the takings were far less than those warranted or represented by the vendor.
I had a bad record of losses in these cases. In one case it turned out that the vendor had paid people to go in and buy during the trial week provided in the contract, and thus boosted takings.
These days, commercial litigation has become more and more expensive. Photocopiers reproduce numerous irrelevant documents and this produce briefs consisting of many, many folders.
There are preliminary proceedings, complicated pleadings ( a written outline of a party's case), written submissions, interlocutory (pending the ultimate decision) orders, etc.
This is no place for a small businessperson with a small purse.
When I had only been at the bar for about 10 years I was lucky enough to appear in the High Court instructed by the New Guinea Public Solicitor...
My first such case was Sirinjui - whose companion decided to throw four spears into the victim. Apparently for comity my client then threw a further four spears on the spur of the moment and not pursuant to any common purpose or pre-arrangement. This was the first of several appearances before the great Sir Owen Dixon who was very amused by my submissions that the appellant could not be charged with murder since his spears may well have been thrown at a corpse nor could he be charged with multilating a corpse because the victim may have still been alive.
Sir Owen Dixon cited a famous Harvard puzzle:
"A man has two deadly enemies when he is about to make a trip across a desert. One poisoned his water in his water-bag, the other slashed the bag so that it leaked. The man died of thirst. Who, if anyone, was guilty of murder?"
Ultimately, Sirinjui was acquitted.
Some cases involve only questions of law. Others involve both questions of law and fact. However the vast majority of cases are decided solely on the facts, with no dispute as to the law applicable.
The study of a witness's demeanour in the witness box is often a cause of error because the judge comes to dislike the person. From dislike to disbelief can be a short step indeed. If we are honest with ourselves we realise that some people appeal and some repel, and there is no reasonable or logical explanation for the differences.
Demeanor is an untrustworthy guide in courts and in ordinary life. I know of a judge with great faith in his ability to perceive demeanor who in his non-judicial life fell for a confidence trickster, much to his cost. Confidence tricksters make excellent witnesses. They usually have perfect demeanor.
In criminal cases the truth usually emerges later. sometimes long after the hearing. In civil cases that happens much more rarely. In fact it is much more difficult to reopen a civil case. One wonders how many litigants suffer grave injustice because of mistakes made in deciding the facts. I know the number is not small.
Some progress has been made... However, the fact remains that many mistakes are made in finding the facts in both civil and criminal cases. This is well illustrated by the wrongful convictions recently discovered in the United States of persons on death row (over 100).
Our Appeal Courts have done very well indeed in deciding questions of law, but the mechanisms for correcting errors in deciding questions of fact in civil and criminal cases are few and inadequate. Our great lawyers tend to become hopelessly involved in abstruse and difficult questions of law. They tend to regard questions of fact as unworthy of their attention. One superior English Court of Appeal actually said as much, but many years ago.
The process of fact-finding in the courts is not well understood, under-researched and calling for improvement. Hopefully new, fresh minds in the law, perhaps those of women in particular, will effect substantial improvements.
1️⃣ Simplicity and attractive presentation are no substitute for accuracy.
2️⃣ Complicated use of technical language is often a disguise for nonsense.
3️⃣ Theory without experimental proof is no better than unproved theory.
4️⃣ The expert who performs the tests everyday may well have fallen into bad habits.
5️⃣ The expert who performs the tests for the first time is likely to be more careful and check the results obtained more thoroughly.
6️⃣ History shows that the greatest experts were by no means pleasant people. An expert's results should be judged on their merits, not on the expert's appearance as a witness.
7️⃣ Often, but by no means always, a real expert can explain his or her work in simple language.
8️⃣ An impartial witness will be prepared to make concessions. An expert who is an advocate fights against making any concessions.
9️⃣ Expert evidence should be considered carefully in the light of the known facts.
"Walking on Water: A Life in the Law" by the late Chester Porter QC [1926-2021].
To learn more about Chester Porter QC's career + accomplishments:
Listen to the series of interviews by John Farquharson with ^Chester Porter QC in the Law in Australian Society oral history project here. [August 1-2, 2001].
I also recommend his textbook "The Gentle Art of Persuasion: How to Argue Effectively". The book is mainly concerned with advocacy before the Court. I have extracted some of Chester Porter's advice on written submissions in one of my earlier blog articles "The Gentle Art of Persuasion ➲ Written Submissions".
He also has a 3rd book, "The Conviction of the Innocent: How the Law Can Let Us Down." which I haven't yet read.
Credits: This blog article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This blog article is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.