Musings of a Litigator


It never ceases to amaze me how cases, and Court timetables, can change in an instant. I’ve been at Court where the Judge has said they have another appointment and must finish the current matter by a certain time. I’ve also been in Court in a Civil matter which started late because the trial Judge was over in the Criminal Court ‘doing a bit of sentencing’ according to the usher who added of the Judge in question, ‘he enjoys that!’.

But what happens in Court? Judges make findings of fact and findings as to the law. An error of finding of law is appealable, such a finding of fact is not. Judges form opinions of whose evidence they prefer and every case will turn on that opinion.

At a final hearing there is evidence from both sides and however well you prepare a witness to be cross examined, you are never quite sure what they will say until they do. Early in my career, when God was a boy and the year date started with a 1, I sat in Court for a trial. These were the days when trials were allowed to run on, pre April 1999. The trial was due to start at 10am Monday and we didn’t get into Court until nearly 12 on the Tuesday because Friday’s trial ran over.

My client gave robust evidence and would not be contradicted by the Defence Barrister. His opponent then climbed into the witness box. Imagine my surprise when the client, sitting next to me behind his Barrister, began shouting at the witness who was giving evidence, telling him to get his lies straight.

He made several similar outbursts until the Judge threatened find him in contempt and lock him up. My colleague sat with him the following day and resorted to kicking him under the table to shut him up. Needless to say, he did not get what he asked the Court for.

In another matter, the Judge asked my client a simple question about how much fuel the lorry he was driving carried – he had just filled up prior to the accident and the Judge was trying to work out how long it had taken him. The client’s forceful insistence that he did not know how much fuel the lorry held clearly annoyed the Judge. We settled the case at lunchtime and when our Barrister reported this to the Judge after the break, she replied, “Very sensible”. I have no doubt if the trial had gone full length, my client would have lost on the finding of fact exercise.

So, if you are ever in Court, the golden rules are:

1. Listen to what is said to you

2. Only answer the question posed

3. NEVER upset the Judge – they can have a far greater effect on your life than you can on theirs!

Wishing you a very Merry Christmas and a Happy New Year from all at Fraser Dawbarns!

by Neil John from the Wisbech office