Here is my latest book review which appears in the December edition of LawTalk.

The Australian Advocacy Institute’s Advocacy Manual – The Complete Guide to Persuasive Advocacy, 2nd Edition, 2018 (Reprint)
 
By Professor the Hon George Hampel AM QC, The Hon Justice Ann Ainslie-Wallace, Elizabeth Brimer and Randall Kune
 
Reviewed by Garry Williams
  
As the Hon Murray Gleeson AC QC (Chief Justice of Australia (1998-2008)) says in the Foreword to the First Edition of the Advocacy Manual – The Complete Guide to Persuasive Advocacy:
 
“There can be a certain pleasure in watching an adversary alienate a potentially helpful witness, irritate a judge, or otherwise employ the arts by which some lawyers seem to snatch defeat from the jaws of victory.”
 
But while such schadenfreude may be momentarily satisfying (and we all know that it can be), winning against an opponent who is not quite up to the task is never as satisfying as doing so against competent counsel or, better yet, a very skilled adversary.
 
Which is why the Australian Advocacy Institute’s Advocacy Manual should be compulsory reading for anyone who practises as a litigator.  Someone who reads it and applies what is within its pages will undoubtedly improve their advocacy skills.
 
I have to confess that I had never heard of the Australian Advocacy Institute’s Advocacy Manual before I found an obscure reference to it on the Internet. Given that I actively keep a lookout for books on the topic of advocacy and the first edition had been published in 2008 this surprised me.  
 
This and the bold claim on the cover that it is “The Complete Guide to Persuasive Advocacy” made me want to track down a copy.  
 
Could it really live up to the claim?
 
First, I checked whether it was in any of the major New Zealand law libraries. It isn’t.    
 
Second, I checked Amazon®. It wasn’t available there either.
 
Finally, I found it.  It was available (of all places) from the Australian Advocacy Institute’s website (www.advocacy.com.au/2018-purchase-aai-advocacy-manual.html). Doh!
 
I paid the purchase price of AU$198, together with the required postage and packaging fee of AU$40 (for an international order) and it arrived on my desk a few days later. 
 
It is a black hardback volume consisting of 222 pages.  It is divided into the following 13 sections:
 

1. The Ethics and Etiquette of Advocacy
2. Preparation and Analysis
3. Evidence in Action
4. Opening Address
5. Examination in Chief and Re-Examination
6. Cross-Examination
7. Argument
8. Appellate Advocacy 
9. Plea in Mitigation
10. Expert Evidence
11. Written Advocacy
12. Advocacy in Mediation
13. Communication

 
The work comprehensively outlines the fundamentals of advocacy and uses a fact pattern that is familiar to anyone who has done the NZLS Litigation Skills Course in the last 30 years to do so – DPP v Daniel Jones.  
 
The purpose of including the fact pattern (which involves the prosecution of a bottle shop for knowingly supplying an alcoholic beverage to an intoxicated person – Mr Walter Watkins) “is to provide illustrations and exercises in the skills and techniques of advocacy, and to do this in a practical way by examining [a] case as a whole”.  The fact pattern is more complicated than that used in the NZLS Litigation Skills course but essentially it involves the same issues.
 
The work is a practical guide to the philosophy, performance and practice of good advocacy.  Nevertheless, it recognises that while the necessary skills can be described, the learning process necessarily requires both demonstration of each skill and performance.  It should not be overlooked that the Advocacy Manual is usually used as an adjunct to attending one of the AAI’s advocacy courses, but, while that is so, much is to be gained by just reading it.
 
The first section, The Ethics and Etiquette of Advocacy, contains a useful summary of the various duties an advocate owes to the Court and his or her client. This summary is succinct but captures these important obligations in 3 pages of bullet points.  The section also concisely sets out the important rules of etiquette.  
 
Compliance with the rules of ethical conduct and etiquette is of fundamental importance and familiarity with the content of this section of the work will help to enhance an advocate’s confidence in and out of court and their standing in the profession.
 
The second section, Preparation and Analysis, states that there are four components of, or steps to preparation. These are said to be:
 

• obtaining a thorough knowledge of the case materials;

 

• acquiring knowledge of the current relevant law, evidence and procedure;

 

• undertaking analysis to develop a case theory; and

 

• performance preparation.

 
The parts of this section that relate to the characteristics of a good case theory and developing a case theory, while brief, contain some of the best advice that I’ve seen on these topics.
 
Having developed a theory of the case i.e. what you need to achieve in the case, the work then advises that good preparation requires you to prepare how you will achieve this.  The authors suggest that this performance preparation is best approached by preparing the closing address first as “when prepared first, argument as to [the] facts and law, based on your case theory, will give you the direction needed for the other steps in the trial”.  Such a draft closing address will serve “as a guide to what needs to be done in order to support your case theory… . This is like an architect preparing final plans before the building starts”.
 
Section 3, Evidence in Action, covers such topics as relevance, hearsay, identification, character evidence, arguing for or against the admissibility of evidence on a voir dire, making and answering objections during a trial, dealing with a hostile witness, impeachment, and the rules in Browne v Dunnand Jones v Dunkel.  All good stuff, covered succinctly but in such a way that the crucial aspects of each topic are developed sufficiently.
 
Sections 4-6 deal respectively with the topics of Opening Address, Examination in Chief and Re-Examination, and Cross-Examination.  Again, each of these sections deals with these topics comprehensively.
 
Sections 7-8 cover Argument and Appellate Advocacy.  Both are essential reading.  
 
The section on Argument focuses on the essential requirements of persuasive argument and breaks this down into the need for logical structure and reasoning; credibility (both of the argument and the arguer); and pathos(empathy).  This last requirement is elusive but appears to be the achievement of mutual understanding with the decision-maker. 
 
The need for effective presentation is also stressed and a list of techniques is provided which can help to achieve this aspect of argument.
 
The description of the characteristics of a persuasive appellate argument found in the section entitled Appellate Advocacy is particularly valuable. So too is the material in this section that relates to structuring oral arguments on appeal. The topics of dealing with questions from the Bench and communication are also covered.
 
There isn’t space in a book review of this length to outline the content of the remaining  sections in detail. It suffices to say, however, that they well worth perusing and digesting.  
 
So, is the Advocacy Manual “The Complete Guide to Persuasive Advocacy”?  
 
In short, “Yes, it is” and, if you don’t believe me, here is a taste of what some other reviewers have said about this work:
 
Michael McHugh, former Justice of the High Court of Australia (1989-2005) wrote:
 
“This is the most valuable work that will repay reading and re-reading by even the most experience advocate. It should be on the shelves in every advocate’s law library.  I would not only adopt the statement in the foreword by the Hon Murray Gleeson AC QC, one of the greatest advocates that the Australian profession has produced, commending “this valuable work to all aspiring legal advocates”, I would also commend it to the experienced legal advocate.”
 
John Doyle, former Chief Justice of the Supreme Court of South Australia (1995-2012) said:
 
“A practitioner who absorbs and applies the teaching found in this manual can be confident that he or she will be an effective advocate.”
 
Christopher Steytler, former President of the Western Australian Court of Appeal (2005-2009) wrote:
 
“This is not a book to be put away. Every barrister should keep a copy handy at every stage of the litigation process.”

Here is my latest book review for LawTalk.  It relates to the latest edition of Pleadings Without Tears.  It will appear in the November edition.

Pleadings Without Tears
 
A Guide to Legal Drafting Under the Civil Procedure Rules
 
By William Rose (revised and updated by Roger Eastman), 9th Edition, Oxford University Press, 2017
 
Reviewed by Garry Williams
  
It is a matter of some regret to me that Mylward v Weldon (1596) appears to have been forgotten.
 
In Mylward’s case, the plaintiff had his son, Richard (instead of counsel), draw up the Replication (which, as I’m sure you all know, was what a Reply used to be called).  
 
This pleading ended up being rather longer than was usual.  As the judgment recounts it occupied “six score sheets of paper, and yet all the matter thereof which [was] pertinent might have been well contrived in sixteen sheets of paper”.  
 
The Courts of the time being slightly more robust than they are today, Richard was committed to Fleet Prison and it was ordered that the Warden should then take him to Westminster Hall “and then and there cut a hole in the myddest of the same engrossed Replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same Replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse …”.
 
While getting a pleading wrong these days is unlikely to result in quite the same outcome, particularly given s 9 of the Bill of Rights Act 1990 (the right not to be subjected to cruel, degrading, or disproportionately severe treatment or punishment) and due to the fact that the Courts appear to have a more permissive approach to litigants in person than they once did, getting the pleadings right has many advantages.  
 
Mr Rose’s Pleadings Without Tears is about getting pleadings right and doing so in a way that puts the client’s case in the best possible light having regard to the circumstances. 
 
The book is written in an approachable and entertaining style and is inexpensive. I bought a Kindle® electronic copy from Amazon® for US$31.57. The paperback version was the same price.
 
It outlines the core skills required and fundamental rules to be followed to produce successful pleadings and other litigation documents. 
 
While it would be fair to say that it is primarily intended for those who are new to litigation, it nevertheless will be of appeal to a wider legal audience.  This is because it contains practical insights and tips that will be of benefit to not just the “newly minted” among us.
 
It is probably important to point out that Pleadings Without Tears is not a litigation precedent encyclopaedia or reference book like Atkin’s Court Forms or Bullen & Leake: Precedents of Pleadings. Rather, as the Foreword says:
 
It is far from being another precedent book. It enables the reader to grasp the underlying principles of drafting. It also discusses tactics on how best to express a point to gain the maximum benefit for the client. Anyone reading this book will gain a real insight into how lawyers present their clients’ cases, and how they do this in ways that will be attractive to the court.
 
The book is divided into 13 chapters.
 
Chapter 1: Pillars of Understanding (General Principles) starts with some preliminary advice about how to approach the task of drafting a pleading.  
 
In essence, Mr Rose accepts straight off the bat that there is no one “right” way to draft a statement of claim or defence, but counsels that it is usually possible to draft one in such a manner as will maximised its strength.  However, in order to do that he stresses two points.  
 
First, he says “it is imperative that you get as full instructions as you can before starting”.  It is after all, much better to get it right the first time and not have to amend.
 
Second, he counsels using language with precision, arguing that precise and elegant drafting carries with it the air of authority and that that can have a useful effect on the way in which an opponent and the Court views a case. 
 
The remaining chapters deal with the following topics in turn:
 
Chapter 2: Getting the Show on the Road (The Claim).
 
Chapter 3: Making a Fight of it (The Defence and Counterclaim).
 
Chapter 4: The Right to Reply (The Reply).
 
Chapter 5: Don’t Answer Back (Rejoinder, etc).

Chapter 6: Pray – Tell Me (The Request for Further Information)
 
Chapter 7: ‘Just to Let You Know …’ (The Answer to a Request for Further Information).
 
Chapter 8: Come and Join In (Additional Claims Against Third Parties).
 
Chapter 9: Pieces of Eight (The Part 8 Procedure). This is what we would call Originating Applications.
 
Chapter 10: ‘To Tell You the Truth …’ (Witness Statements, and the Odd Affidavit).
 
Chapter 11: Just a Minute (Minutes and Agreed Orders).
 
Chapter 12: Bones of Contention (The Skeleton Argument).
 
Chapter 13: A Matter of Opinions (Opinion Writing).

Each chapter provides a wealth of practical examples and contains the necessary detailed analysis and explanation to enable the reader to easily acquire a thorough understanding of how to draft each of the documents discussed. 

The importance of pleadings should not be overlooked and Pleadings Without Tearsdoes not do so.  The work accurately describes the functions of pleadings and highlights, in particular,  that a well-drawn pleading should enable the parties to accurately identify the issues in dispute and evidence that will need to be called. Nor does it overlook the fact that the drawing of a really good pleading in a complex case requires a mastery both of the relevant facts and the applicable law.  

While mastery of the art of pleading only comes with experience, Mr Rose’s Pleading Without Tears is the primer a novice needs to get the hang of this aspect of court-craft.  
 
I am confident that its readers will benefit from its coverage of the principles upon which good pleading is based.
 
If only Richard Mylward had had a copy back in 1596.
 

This is the book review I wrote for the October 2018 edition of LawTalk on The Articulate Advocate.

The Articulate Advocate
Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations and Motions
 
Brian K Johnson & Marsha Hunter, 2nd Edition, Crown King Books
 
Reviewed by Garry Williams
 
In 1992, Dr Tom Amberry, a 72-year-old retiree, walked onto a basketball court in Riverside, California and made 2,750 consecutive free throws without a miss.  This, at the time, was a world record. In fact, Dr Amberry could have made more, but he was asked to leave so that they could close the gym.
 
LeBron James’ NBA career free throw percentage is currently 73.9% which means he misses roughly 1 out of every 4 free throws he takes.  LeBron is one of the highest paid professional basketball players in the world - he has just signed a 4-year deal with the LA Lakersworth around US$135 million - yet compared to the late Dr Amberry he sucks at taking free throws.  
 
Now Dr Amberry freely admitted that he was no athlete. So why then was he so much better than “King James” at taking free throws?
 
The answer is simple.  He had cultivated a great technique.
 
And that is really what The Articulate Advocateis all about.  Its stated goal is to give its readers the tools to develop, explore and expand their own “distinctly individual style adaptable to any advocacy challenge”.  In other words, it aims to provide strategies to cultivate effective courtroom communication techniques. 
 
At the time of writing, the paperback edition of The Articulate Advocatewas available from Amazonfor US$16.99, while the Kindleedition only costs US$9.99.  
 
It is a short book, being around 230 pages long.  This means it can be read quickly but its content is such that there is significant value in revisiting the material time and time again.
 
There are 5 chapters in Johnson and Hunter’s work.
 
Chapter 1 is called Your Body and provides advice in relation to how an advocate should stand, move, breathe, gesture and use the adrenaline inevitably triggered by having to “perform” in court.
 
Chapter 2 is entitled Your Brain and focuses on strategies for taking control of your thought processes and directing those of the court.  
 
Along with the obvious advice not to speak too quickly, the authors recommend pausing briefly between phrases and sentences and listening to the silence to integrate it into your presentation. This is said to allow the court time to think about what has just been said and to be influenced by it.  In other words, it is argued that “persuasion happens in the silence” and therefore it should be used to give judges, juries or arbitrators time to process your words.
 
The importance of echo memory (the phenomenon of a listener’s brain echoing back what has just been said to the listener) and primacy and regency (listeners pay close attention to the beginnings and endings of presentations) as persuasive techniques are also stressed.  The authors therefore recommend utilising these moments by saying something that you really want the listener to remember.
 
Chapter 3 relates to Your Voice.  
 
The take out from this chapter is that in order to use your voice persuasively you need to take the time necessary to make choices about which words to place emphasis on. Again, silence is said to be the secret ingredient of persuasive speech.  Accordingly, it is recommended to “speak in phrases, rather than whole sentences”. But, variation of pace is also required if you are to avoid monotony.  
 
This chapter also contains excellent advice on how to avoid saying “um” or “ah”.  These “thinking noises” occur when you know it’s your turn to speak but you need a moment to think of what to say.  The proffered solution is to use the phrase “Mind the gap” as a reminder to insert a gap of silence between phrases.  As the authors say: 
 
“It is much easier to break a habit when you can give your brain a positive instruction, such as “Mind the gap”, rather than a negative one: “Don’t say um!”.  The negative instruction doesn’t work because it keeps you focused on the problem not the solution.”
 
Chapter 4 is all about How to Practice.  This chapter provides guidance on how to practice advocacy skills with a view to improvement.  It also contains specific exercises to solve particular problems, such as: speaking too softly; the inability to stand still; speaking too quickly; saying “okay” after the witness answers; beginning questions on cross-examination with “And”; and being boring.  
 
Given that opportunities for advocacy are not as plentiful as they once were, the guidance on how to practice the techniques outlined in the work will be particularly useful for new practitioners.
 
Chapter 5 is entitled Applying Your Skills at Trial. This chapter places the skills and techniques discussed in the earlier chapters in the context of particular aspects of the adversarial process.  It attempts to “integrate the delivery skills” previously discussed with the unique requirements of each phase of a trial.  
 
In essence, The Articulate Advocateis a great place for an aspiring advocate to start if they want to master the presentation skills required for court work.  
 
A good indication of the value of the work is that it now forms the basis of a 2-day programme called The Articulate Advocate run in the United States by Ms Hunter for theNational Institute for Trial Advocacy (NITA).  
 
In my view, younger advocates will gain much from studying it, while more experienced barristers will find sufficient in its pages to improve or polish the skills they already possess.
 
If only LeBron would take the same approach to free throws …

This is a short article I wrote for the September 2018 edition of LawTalk on Durie v Gardiner [2018] NZCA 278 which will be a landmark case in New Zealand defamation law as it recognised a new defence to the tort.

Defamation: The new defence of responsible communication on a matter of public interest – Durie v Gardiner [2018] NZCA 278
 
by Garry Williams, Barrister, Richmond Chambers
 
The background
 
Last month, the Court of Appeal delivered its judgment in Durie v Gardiner.  The judgment has caused quite a stir in media circles, as, in it, the Court (comprised of French, Winkelmann and Brown JJ) recognised a new defence to the tort of defamation. 
 
The factual background of the case can be quickly stated.  
 
Sir Edward Durie and Ms Donna Hall had issued defamation proceedings in the High Court against Māori TV and one of its reporters, Mr Gardiner.  
 
In their statement of defence, Māori TV and Mr Gardiner contended that the words alleged to be defamatory did not bear the meanings pleaded, but also that if they did they had a defence which they described as a “Qualified Privilege/Public interest defence”.  This was pleaded in this way:
 
Qualified Privilege/Public interest defence
 
To the extent that the words complained of … were published, those publications were protected by qualified privilege in that they were neutral reportage, and/or subject to the Lange v Atkinson privilege; or an extension thereto; and/or were responsible journalism/communications on matters of public interest; or protected by a sui generis public interest defence.
 
Sir Edward and Ms Hall applied to strike out this defence and, in the High Court, Mallon J refused to do so on the basis that it could not be said that it would inevitably fail on the facts. 
 
Sir Edward and Ms Hall then appealed to the Court of Appeal.
 
The elements of the new defence
 
The appeal afforded the Court of Appeal its first opportunity to consider significant landmark defamation decisions of the UK and Canadian Courts which had recognised that the responsible publication of matters of public interest to the world at large could give rise to a defence.
 
The Court concluded that it was:
 
… time to strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement.
 
It is immediately apparent that the new defence is not limited to responsible journalism but is available to anyone who publishes material of public interest in or on any medium.
 
The Court said that the elements of the new defence are:
 

• the subject matter of the publication was of public interest; and

 

• the communication was responsible.

 
Guidance has also been provided as to the respective roles of judge and jury in relation to the new defence.  In a case tried by jury in New Zealand, it will be for the trial judge to determine whether the two elements of the defence are established based on the primary facts as found by the jury.
 
What will be a “matter of public interest”?
 
So how will a judge determine whether the subject matter of a publication was of public interest?  Defining what is a matter of public interest in the abstract is notoriously difficult but the Court has suggested that:
 
… to be of public interest the subject matter should be one inviting public attention, or about which the public or a segment of the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.
 
It is clear that a story will not relate to a matter of public interest simply because it will be of interest to the public.  A story that merely feeds curiosity or prurient interest in the private lives of public figure or celebrities will not be sufficient.
 
Further, when considering this issue, the Court indicated that the trial judge “should step back and look at the thrust of the publication as a whole” and that it will not be “necessary to find a separate public interest justification for each item of information” contained in a story.
 
How will the element of “responsible communication” be determined?
 
Determining whether the communication was responsible is to be assessed by the trial judge having regard to all the relevant circumstances of the publication. These may include:
 

• the seriousness of the allegation – the more serious the allegation, the greater degree of diligence needed to verify it;

 

• the degree of public importance;

 

• the urgency of the matter – did the public’s need to know require the defendant to publish when it did;

 

• the reliability of any source;

 

• whether comment was sought from the plaintiff and accurately reported – in most cases it will be inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond.

 

• the tone of the publication

 

• the inclusion of defamatory statements which were not necessary to communicate on the matter of public interest.

 
The Court also indicated that this is not an exhaustive list and that these and other such factors:
 
… must be applied in a practical and flexible manner with regard to the practical realities and with some deference to the editorial judgement of the publisher, particularly in cases involving professional editors and journalists.
 
What about neutral reportage?
 
Interestingly, the Court was not able to agree whether “neutral reportage” (i.e. the neutral reporting of attributed allegations) should be regarded as a separate defence, distinct from the new public interest defence.  
 
Brown J considered it to be conceptually different and that it should not be recognised as a defence in New Zealand. 
 
However, French and Winkelmann JJ agreed with the English and Canadian authorities that have held that neutral reportage should not be regarded as a separate defence and, in doing so, said that it rests on both public interest and responsible communication.  In other words, they found that the “fact that it has its own label does not make it in substance a separate defence”.  
 
While, the judgment is therefore authority for the proposition that neutral reportage can amount to the defence of responsible communication of a matter of public interest, the Court of Appeal did sound a warning for those who may engage in it:
 
The stakes for publishers – mainstream or otherwise – who do not attempt to verify the truth of the defamatory allegation are high. They are likely to do so at their peril and accordingly the incentive to make the attempt remains high.
 
There is a spectrum
 
The majority (French and Winkelmann JJ) summarised their view by saying the new defence “thus involves a spectrum” and:
 
At one end is reportage where the mere fact of the statement being made is itself of public interest and is reported as being of public interest. Further along the spectrum is a situation as in Flood which involved the publication not only of the fact of the plaintiff’s investigation for corruption, but the nature of the alleged corruption.  There the House of Lords said the press could not disclaim all responsibilities for checking their sources as far as practical, but provided the article was of real and unmistakable public interest and was fairly presented, the press were not required to produce primary evidence of the information given by sources.  Further still along the spectrum that may however be necessary.
 
The distinction between the new defence and qualified privilege, and what about Lange v Atkinson
 
Finally, the Court clarified two points.  
 
First, the new defence is a standalone one and not part of the rubric of qualified privilege. This is due to the fact that it arises primarily because of the subject matter of the publication – a matter of public interest – and not the occasion on which it is published.
 
Second, that the form of qualified privilege recognised in Lange v Atkinson (mass publications concerning MPs, or those wanting to be elected to Parliament) should no longer be available as a defence, being effectively subsumed in the new defence of public interest.
 
Conclusion
 
The new defence is to be welcomed.  While it will not give journalists or others cart blanche to tarnish someone’s reputation, it will lessen the chilling effect that defamation law has had on the media.  In essence, it will reward responsible and ethical reporting so that if, despite a journalist’s best efforts, the media gets it wrong, they will be able to rely on the defence to defeat a defamation claim.  But the media and others will need to be mindful that there is a quid pro quo – they are now on notice of the high standards of conduct that will be required to establish the defence.

 Here is the book review I wrote for the September 2018 edition of LawTalk on Goodman's How Judges Decide Cases - Reading, Writing and Analysing Judgments.

How Judges Decide Cases – Reading, Writing and Analysing Judgments
 
2nd Edition, Andrew Goodman, Wildy, Simmonds & Hill Publishing, 2018
 
Reviewed by Garry Williams
 
When I was 8 years old I had to stay home from school for a week because of an ear infection.  
 
As I had an irresponsible parent (and only one at that), I was allowed to watch day time television, which in those days consisted largely of soap operas like The Days of Our Lives and The Young and the Restless.  But there was another show I watched that week.  It was called Crown Court.  
 
Crown Court was produced by Granada TV for the ITV Network.  It ran from 1972 to 1984.  
 
The conceit of the show was that it depicted an entire court case taking place in the Crown Court of the fictional town of Fulchester.  Each case progressed over 3 episodes with the prosecution or plaintiff’s case presented in the first 2 episodes and the defence and result in the third. 
 
An interesting aspect of the show was that if there was a jury for the case it was made up of members of the public who were eligible for real jury service. The “verdict” would then be delivered as if in a real court case without the actors portraying the accused, barristers or judge knowing the outcome in advance.  This often required the writers to produce two endings for the show, each reflecting the potential outcome reached by the jury. 
 
Years later when I was deciding what to do when I went to university, I am quite sure that my memories of the show influenced my choice to study law.  
 
Now you may be wondering, what all this has to do with a book called How Judges Decide Cases. 
 
Well, another aspect of Crown Court that caught my notice was that when the case portrayed did not involve a criminal charge, the judge would give a short judgment immediately at the conclusion of the barristers’ closing addresses and usually without the aid of any notes (or, at least, he or she would appear to do so). Back then I thought that this would be much too hard to do in real life and that this must just have been a bit of dramatic licence enabling the script writers to move the action on for the purposes of the show.  Surely, in reality, a judge would take time to reflect and carefully consider a case before deciding the litigants’ fates?
 
It wasn’t until I was older that I realised that sometimes judges give judgment immediately and sometimes they reserve their decisions. 
 
And it wasn’t until I was older still that I realised that the writing of judgments is really a highly individual exercise governed by very few absolute rules.  
 
In fact, remarkably little has been written about the nuts and bolts of writing judgments or, for that matter, how one should go about analysing them.  
 
This is why Mr Goodman’s work How Judges Decide Cases is so valuable.  
 
It looks at how cases are decided and judgments are written (or should be written) and as Lord Faulks QC says in the Forward to the work, it:
 
“… admirably takes apart the engine of a judgment.  It gives advice on how to write one.  It analyses what processes are used consciously or unconsciously in arriving at a decision, and explains the various levels at which a judgment can be read. There is a particularly valuable insight in how to decide whether a judgment should be the subject of an appeal.”
 
How Judges Decide Casesis not an expensive work; it only costs £45. It is only 234 pages long and can be read cover to cover in just a few hours. 
 
It is divided into 8 sections.
 
Section 1 is entitled How Judges Decide Casesand deals with such topics as the mechanics of fact finding, how judges really approach questions of weight and how impression actually influences a judge when deciding factual conflicts.  
 
What comes out clearly in this section of the work is that while most judges adopt the approach of first seeking out agreed facts as an anchor or base from which to build up a picture of what they can safely find is the more likely thing to have happened when forced to choose between conflicting events, many judges do admit (at least privately) to a fairly strong intuitive approach – they will fit the facts to a gut feeling of whether someone is lying, or of where the justice of the case rests.  The reluctance of judges to admit to the use of such an intuitive approach is possibly best captured in the following passage from Sir John Donaldson MR’s paper entitled Judicial Techniques in Arbitration and Litigation (1988) which is referenced in the work:
 
It was always said of Lord Denning that he claimed to decide intuitively what should be the outcome of a case and then to go on to analyse the law in such a way as to justify his intuitive decision.  Of course he was wrong to say that.  Quite wrong.  Most of us do exactly that, but we would not dream of saying so.
 
This section of the work also sets out a checklist that Lord Bingham is said to have used for judicial fact finding.  It is enlightening and is to be recommended. It can be summarised as follows:
 

• Identify any common ground between the parties;

 

• Resolve the issues of primary fact:

 

• Consider the unchallenged material;

 

• Weigh the force of contemporary documents, particularly those coming into existence prior to the dispute emerging, or any matters independent of human recollection.

 

• Consider what happened against the background of independent material; against the same background consider what could not have happened.

 

• Consider what must have happened irrespective of whether one or both parties say it did not.

 

• Weigh dispassionately the merits of the opposing arguments.

 
The material relating to unconscious bias in this part of the work is also fascinating.  It is now well-known that our thought processes involve the use of cognitive “short cuts” to decision making, known as intuitive heuristics.  Daniel Kahnman received a Nobel Prize for his work in this area and his internationally best-selling work Thinking Fast and Slow which relates to the use of intuitive heuristics in the context of human judgment and decision-making under uncertainty is discussed in some detail. This is because the use of such cognitive “short cuts” often leads to very wrong conclusions being drawn.  Put simply, the brain uses such short cuts to speed up decision-making and unconscious biases are a by-product.  There are, of course, times when this sort of quick decision-making is useful (e.g. when we are faced with danger); however, it is not a good way to make decisions when dealing with difficult questions where the outcome may have a serious impact on people’s lives.  
 
Mr Goodman points out that judges would do well to familiarise themselves with Kahnman’s work in order to be able to recognise and mitigate the effects of such unconscious biases.
 
Section 2 relates to Appellate Judgments and strongly suggests that in the UK at least in the vast majority of cases an appellate court will have formed a preliminary view prior to the hearing.  In other words, it appears that the occasions when appellate judges in that jurisdiction have an open mind on an issue to the extent that prior to the hearing they genuinely don’t know theiranswer to a particular problem are rare.  
 
Mr Goodman suggests that this usually renders an appeal hearing “an exercise in the reality testing of a pre-existing view”. 
 
Section 3 is entitled Writing Judgments, Decisions and Awards.  This is the part of the work which offers practical guidance as to how to produce a judgment that is cogent, well-reasoned and most importantly will satisfy even the loser that he or she has been given a fair, albeit disappointing decision.
 
The most important part of this section is the abridgement of Lord Neuberger’s paper entitled First Instance Judgments: Some Suggestionsset out by Mr Goodman.  It contains indispensable guidance on this aspect of judge-craft.
 
Sections 4 and 5 are entitled Reading Judgments and The Use of Language in Judgments respectively. They are focused on techniques for identifying the words, sentences or propositions in a judgment that really matter for the purposes of analysing it with a view to an appeal.
 
Sections 6and 7 are the most interesting parts of the work for an advocate as they relate to the topic of Analysing Judgments.  
 
Section 6 focuses on deconstructing a judgment by having regard to the judge’s reasoning and legal logic. 
 
Section 7 outlines suggested techniques for criticising a judgment.  
 
These topics stress that in order to persuade an appellate tribunal that the judge below was wrong, it is necessary for the advocate to clearly understand why the judge was wrong, be able to demonstrate that fact with clarity, and withstand a rigorous testing of that contention.
 
It is the material in section 7 that I found the most useful in the work.  This was because it explained very clearly the mechanics of fairly criticising a judgment.  In essence, Mr Goodman’s thesis is that there are principally four ways in which a judgment can be adversely but fairly criticised, namely that the: 
 
Judge was uninformed 
Here the judge lacked some piece of knowledge that was relevant to the problem he or she was trying to solve.  To fairly criticise the judgment on this basis you must be able to state the missing piece of knowledge or information (whether factual or legal), show its relevance and show how the conclusion reached would have been different.
 
Judge was misinformed 
Here the judge has asserted that which is not the case, that is, the judge made findings or assertions contrary to fact.  The judgment proposes as true or more probable that which is in fact false or less probable; it is based on a claim to have knowledge the judge does not possess.
 
Judge’s approach was illogical in the sense that the reasoning was not cogent 
Here the judge has committed a fallacy in reasoning.  Mr Goodman says: “This problem generally stems from two sources. Either the judge has fallen into the trap of non sequitur, where what is drawn as a conclusion simply does not follow from the reasons offered, or that of inconsistency, where two things he has tried to say are incompatible.”.
 
Judge’s analysis of either the facts or the law was not complete 
The basis of this critique is to say the judge:
                  

• has not solved all the problems he or she started with; or

               

• has not made use of all the available material; or

 

• did not see all the ramifications and implications; or

               

• has failed to make all the distinctions relevant to his task.

 
It struck me that structuring a critique of a judgment using this method is a relatively simply but ingenious way to identify those findings in a judgment that can be the subject of complaint on appeal.
 
Section 8 is about Using Law Reports.  It is a very short section and is to be honest the part I found least useful in the work.  In essence, it contains the prudent warning that headnotes are editorialised material and therefore cannot always be relied upon as accurate or as capturing all the truly important points in a judgment.  The solution proffered to these potential pitfalls is the obvious one: Read a judgment carefully before consulting or relying on its headnote.
 
How Judges Decide Cases has been meticulously researched – Mr Goodman interviewed judges at every level, from deputy district judges to justices of the United Kingdom Supreme Court. The list of judges thanked in the Preface amounts to a veritable Who’s Whoof the UK Judiciary and includes, Lords Neuberger, Bingham and Sumption, to name but a few.  
 
In summary, newly appointed judges and arbitrators will find How Judges Decide Casesto be invaluable, while experienced practitioners will find it indispensable as a guide to the deconstruction of judgments for the purpose of appeal.
 
Incidentally, I tried to find an episode of Crown Court recently to see whether it was as good as I remember.  It was quite hard to track down but eventually I found some old episodes on YouTube. It has dated quite a bit and the production values aren’t a patch on those of Downtown Abbey, but it’s still reasonably enthralling.  But courtroom dramas always are, aren’t they.
 

Here is the book review I wrote for the June edition of LawTalk in relation to Pozner & Dodd's Cross-Examination: Science and Techniques.

Cross-Examination: Science and Techniques by Larry S. Pozner & Roger J Dodd, 3rd Edition, LexisNexis
 
Reviewed by Garry Williams, Richmond Chambers
  
I think I first saw Irving Younger’s The Ten Commandments of Cross-Examination when I was a summer clerk.  That was at the end of 1991. By then, it had been around for over 15 years and the copy I saw was grainy and not in the best condition.  The video would jump and parts of it were difficult to hear due to the poor sound quality.  Nevertheless, it was a superb and entertaining lecture which sought to define the principles that underlie successful cross-examinations. 
 
Younger’s Ten Commandments were:
 
1.         Be brief.
2.         Short questions, plain words.
3.         Always ask leading questions.
4.         Don't ask a question to which you do not know the answer.
5.         Listen to the witness' answers.
6.         Don't quarrel with the witness.
7.         Don't allow the witness to repeat his direct testimony.
8.         Don't permit the witness to explain his answers.
9.         Don't ask the "one question too many".
10.      Save the ultimate point of your cross for summation.
 
The lecture itself is still worth a watch and can be found on YouTube®at:
https://www.youtube.com/watch?v=dBP2if0l-a8.  
 
However, even back then, I thought that some of Younger’s Ten Commandments had severe limitations.  
 
For instance, often it is simply not possible during a cross-examination to ask only questions to which you know the answer. Sometimes it is necessary to probe to get what might be there.
 
Nor is it always possible or desirable to ask only leading questions.   
 
And, the admonition not to ask the “one question too many” is all very well but is rather dependent on counsel recognising that the next question is apt to produce, at best, an unhelpful response or, at worst, a disastrous retort.  The problem is that the importance of this particular Commandment is often only recognised seconds after it has been breached.
 
But despite their limitations, Younger’s Ten Commandments made it clear to me that cross-examination was not a mystical art closed to all but those special few who could somehow just perform it – a myth that some members of the profession are not inclined to debunk - but a science and that the relevant techniques could be learned.  
 
But there was a problem. While there were numerous books on cross-examination or which dealt with the topic, not many of them covered the subject in a particularly helpful way. Many of the older volumes on the subject read more like a collection of famous courtroom incidents or “war stories”. The oft-mentioned The Art of Cross-Examination by Francis L. Wellman ((1908) The Macmillan Company) and Notable Cross-Examinations by E W Fordham ((1951) Constable & Company) fall into this category. While interesting, these older volumes just don’t approach the subject as if it is a teachable or learnable skill-set.  
 
That is why when Daisy found Pozner and Dodd’s Cross-Examination: Science and Techniques and suggested that I should have a look at it, I was intrigued. 
 
Here was a book which its authors expressly indicated was intended to ”pass along to the trial bar … the many techniques of cross-examination that have been used by skilful advocates for many generations”. 
 
It was clear from the work’s table of contents that the authors had approached their subject on the basis that cross-examination is a science with firmly established rules, guidelines, identifiable techniques and definable methods, and that these can be described, practised and learned. 
 
We bought a copy. I won’t lie, it wasn’t inexpensive. It comes in a hardback volume or you can buy the eBook version. The eBook is the better option as it has 8 bonus chapters which are not in the hardcopy version.  Either will set you back a cool US$309. However, it’s worth the investment.  Why? Well, Pozner and Dodd’s work is the definitive guide to preparing and delivering predictably successful cross-examinations.
 
So, what’s in the book?  Well, a lot more than can be described in a short book review like this. But the names of some of the chapters and a short description of them will give you an idea. 
 
The chapter method of cross-examination (Chapter 2)
 
Pozner and Dodd advocate that a lawyer must think of the cross-examination of any witness as a series of small discussions (“chapters”) on individual topics of importance to the theory of the case and not as a flowing discussion with a single unifying purpose.  They explain the benefits of approaching a cross-examination in this way and how to break topics (or more precisely, the facts sought) down into appropriate “chapters” for cross-examination.
 
Developing a theory of the case (Chapter 3)
 
This contains the now familiar guidance about the need to develop a theory of the case and how it must be consistent with the “facts and inferences beyond change”.
 
Cross-examination preparation systems (Chapters 6-9)
 
These chapters provide guidance on a number of different cross-examination systems that can be used.  One system involves the use of topic charts in which all relevant material is grouped together by topic in a systematic way.  An alternative system proposed is that described as “sequence of events charts”.  In this preparation system, the cross-examiner evaluates and breaks down each relevant event chronologically in substantial detail, but the cross-examination itself is performed in the most favourable sequence.  The third system outlined is that called “witness statements charts”.  This system is said to allow the cross-examiner to devise safe leading questions in advance and to identify impeachable inconsistencies with ease.
 
Destroying safe havens (Chapter 13)
 
A safe haven is, as its name suggests, an excuse that is likely to be used by a witness to avoid arriving at the factual destination the lawyer will seek to establish.  This chapter offers techniques to block off such safe havens before they are used.
 
Controlling the runaway witness (Chapter 15)
 
A chapter on strategies for dealing with unresponsive witnesses.  Importantly, not only do Pozner and Dodd provide such strategies, they emphasise that an unresponsive witness is not something to be feared but rather a source of opportunity.  Unresponsiveness speaks to the character of a witness and the techniques suggested can highlight this and thus undermine the credibility of such witnesses.
 
Dealing with “I don’t know” or “I can’t remember” (Chapter 16)
 
This chapter outlines techniques that take advantage of such evasive answers and which punish the witness, at least, in terms of their credibility. It also outlines techniques to take advantage of such answers even when it is true that the witness can’t remember or doesn’t know.
 
Impeachment by inconsistent statement or omission (Chapters 19-20)
 
These two chapters contain useful guidance on the steps that should (and which can) be taken when impeaching on these grounds.  Some of the techniques outlined will leave particularly powerful impressions on the fact-finder (whether that be a Judge or a jury).   
 
Juxtaposition; Trilogies; and Loops, double loops, and spontaneous loops (Chapters 24-26)
 
These are the chapters which contain some of the most interesting material.  They relate to questioning techniques that can and should be adopted in most cross-examinations. 
 
Juxtaposition is a technique that contrasts different sets of behaviour in order to demonstrate parallels between them. Trilogies are a literary device designed to cause a fact finder to better hear the facts referred to in the trilogy, and to instantly recognise that they are facts of real significance in relation to the contrasting theories of the case.  Looping is a questioning technique that enables important facts to be highlighted by repetition in a legitimate way.
 
As I have said, there is much, much more in this text, and a studious reader will find it and use it to dramatically improve their abilities as a cross-examiner.
​
One word of warning though, this is an American text and, as a consequence, not all of the suggestions can or should be taken up in this jurisdiction.  The rules of the game are different here and there are some quite important rules in play here which have no equivalents in the US.
 
So, with that caveat, I’ll sign off this review by giving you a Commandment of my own: Get your hands on a copy of Pozner and Dodd’s Cross-Examination: Science and Techniques and spend the time required to make your way through its 744 pages.   

Here is an article I wrote for the February 2018 edition of LawTalk reviewing the UK Bar Manual on Advocacy.

Advocacy: The tools of the trade – The UK Bar Manual on Advocacy.
 
Garry Williams, Barrister, Richmond Chambers
 
One of the first things I did when I arrived in London in late 1997 was to search out the antiquarian legal bookshop Wildy & Son.
 
Given the rich pickings of things to see and do in London this might seem an odd thing for someone in their mid-twenties to do, but I wanted (or rather needed) to for two reasons.  
 
First, I desperately wanted to see Lincoln’s Inn and Wildy & Son was (and remains) located in Lincoln’s Inn Archway just off Carey Street.  But more importantly, I wanted to lay my hands on a second-hand copy of Bullen & Leake’s Precedents of Pleadings.  I had found this volume so useful in my formative years at Russell McVeagh that I wanted my own copy to hand as I started out in London.  
 
Going to Wildy & Son would mean that I could achieve both these things in a single afternoon, so I set off.  
 
Arriving at Wildy & Sons, I went upstairs where an extensive range of second-hand books lined the walls.  It was an impressive sight.  In the middle of the room was an old-fashioned card catalogue system which listed, so I was told, every title that that had passed through the store since 1930.  I now understand that this self-same card catalogue system has been extremely useful to the Bodleian Law Library in Oxford in assisting it to catalogue early works on English law.
 
I approached a member of the staff whose name was John and enquired whether they currently had a copy of Bullen & Leake, adding that I only wanted to pay around £60 for it.  
 
I still remember his exact response: “Sir will not be able to acquire that title at that price”.
 
He then checked the card catalogue system and informed me that, in any event, they currently did not have a copy.  Before I left, he helpfully asked if I would like to put my name down “in case they were able to find one”.  I gave him my details and went downstairs to leave.
 
Downstairs was where the new legal titles were on display.  Amongst the new titles in the window of the shop was a book simply entitled Advocacy.  However, it was clearly part of a set, as it was surrounded by similarly formatted volumes with titles like Evidence, Remedies, Case Preparation and Drafting.  In all, there were 14 volumes in the set.[1]
 
What were these?  
 
On closer inspection, it became apparent that these were the Inns of Court School of Law Bar Manuals – in essence, these were the course materials used by those undertaking the Bar Vocational course; the year long course those training to be a barrister had to pass before being able to undertake a pupillage. 
 
I flicked through the volume entitled Advocacy.  It contained pure gold.  Its price was staggeringly low – a mere £19.99. I bought it.  In fact, I purchased most of the volumes in the set there and then.  I have never regretted doing so and have referred to them frequently during the last 20 years.  
 
So why are they so good?  
 
The answer is simple: they provide an extremely useful resource to assist acquiring the skills and knowledge that practising barristers need.
 
Given how useful I have found these manuals over the years, I was pleased to recently see the ADLS Bookshop in Auckland advertise for sale the 18th edition of the Advocacy volume I bought so long ago.   
 
Its price is still staggeringly low given the value of its content, a mere NZ $95.23 + GST for non-ADLS members and NZ $85.71 + GST for ADLS members.  
 
When I saw it on the ADLS’s shelves I thought to myself that I should probably write a brief review of it to draw attention to the “pure gold” that resides between its covers.  So I have.  
 
This is how the Advocacy volume is described by Oxford University Press:
 
Written by experienced advocates and advocacy trainers, Advocacy provides an excellent introduction to the skills and techniques required to be an advocate. Coverage includes guidance on making opening and closing speeches, planning and delivering examination-in-chief and cross-examination, questioning witnesses; as well as examples of specific questioning techniques which may be employed in practice.  Additionally, the authors highlight the ethical boundaries and rules within which an advocate must work.
 
This pithy description belies the breadth and usefulness of the content of the 18th edition of Advocacy.  
 
A quick perusal of the contents page reveals that the volume is broken down into six parts. 
 
Part I is introductory in nature and focusses on the qualities of the advocate; and ethics, etiquette, and cross-cultural communication in the courtroom.
 
Part II outlines the basic components required for successful applications and submissions. It addresses topics such as preparing for court and the actual content necessary to produce persuasive applications and submissions.  The importance of structure is emphasised.  Tips for an engaging delivery are detailed.  The chapter in this Part entitled “Persuasion” is particularly enlightening.  

Part III is entitled “Preparing for advocacy” and includes very helpful material relating to voice and speech, memory and recall, note-taking and modes of address.  This Part ends with chapters on “storytelling” and which explain the sequencing of criminal and civil trials.
 
Part IV contains two chapters.  These are entitled “Opening speeches” and “Closing speeches”.  These chapters outline in detail the basic purpose of such speeches, the elements they should contain and tips on how to structure them. The suggested “Do’s and Don’ts” are a must read and the checklists provided are also very useful.
 
Part V relates to witness handling.  Basic questioning skills are outlined, together with techniques designed to ensure witness control.  This Part ends with chapters dedicated to examination in chief, cross examination and re-examination.
 
Part VI is particularly useful as it consists of “how-to-do-it guides”.  Amongst these are ones relating to:
 

1. Skeleton arguments;

 

1. Default judgments;

 

1. Summary judgments;

 

1. Applying for an injunction;

 

1. Applying for costs in a civil case;

 

1. Remands/adjournments;

 

1. Bail applications;

 

1. Conducting a voir direor ‘trial within a trial’;

 

1. Making a submission of no case to answer in a criminal case; and

 

1. Prosecuting a plea in mitigation.

 
This brief description of the content of Advocacy does not do it justice, but you get the idea.  Advocacy contains within its 392 pages an extensive range of tools and features that those intending to practice at the Bar need.
 
Quite simply, if you want to be a competent advocate or to improve on the skills in this area that you may already have, buy and read Advocacy edited by Robert McPeake, Oxford University Press, © 2017.  Then re-read it. You won’t regret it.
 
Oh, by the way, a few days after I first went to Wildy & Son, I received a call from John.  He had found me a copy of Bullen & Leake.  He was right however – I wasn’t going to get it for less than £60; he charged me twice that. 
 
For those interested, the Wildy & Sons website may be found at www.wildy.com. 


[1]    If you are interested, the 14 volumes in the set were: Advocacy; Civil Litigation; Conference Skills; Negotiation; Criminal Litigation and Sentencing; Drafting; Opinion Writing; Employment Law in Practice; Company Law in Practice; Evidence; Family Law in Practice; Case Preparation; Professional Ethics; and Remedies.  

In one of the first trade mark opposition decisions of the year, the Assistant Commissioner of Trade Marks has upheld International Consolidated Business Pty Ltd's opposition to S C Johnson's application for the mark ZIPLOC.  The Assistant Commissioner did so on the basis that S C Johnson was not the owner of the mark.  See a copy of the decision here: