Brief 26: Grapple with bad points

(upbeat music) Welcome to the Advocacy Podcast, journeys to excellence. We speak with Queen's Council, trial lawyers and judges from around the world about how they excel in the courtroom. Please subscribe on your favourite podcast platform and visit us for additional resources at theadvocacypodcast.com. - I'm your host, BB Bidejo. And in today's brief episode, we're focusing on confronting challenges. Join us as Professor Joe Delahanti Casey and Sarah Clark Casey discuss the critical importance of dealing with the less favourable aspects of our case head on. They're collective wisdom promises to coach you with strategies to face the complexities of the courtroom with courage and finesse. (upbeat music) - As Joe Delahanti Casey, how do you deal with bad facts? I run out of them, grab them, say hello, come to me. And work out how I can cottonwall them. I don't ignore them. They become my first best friend. Yeah, they're the bully in the classroom. You've got to go and make your best mate. You can't ignore bad points. If someone's done their prep and God knows we should all be doing it, then they're spotted. And if they haven't, I mean, what a lottery is there. There's a bad fact in your case. There's bound to be God knows how many are mine. And you're telling me that amongst the whole row, someone's not picked it up and the judge hasn't picked it up. Of course, it's going to be picked up. You can't avoid it. So what you do, it's the first issues you go to. My little text, you know, when I went to my juniors is the good points will look after themselves. You just need to give them a little bit of polish. The bad points, you positively run up and embrace and work out to cottonwall them. So they're no longer as damaging. You might not be able to get rid of them completely, but you can give a little bit of cottonwall, you can polish them up a bit. It's, you know, you can put little roasts into specs around different comments. But you're left and fine. If you look at bad facts, they're not nearly as bad. Come back to the idea about an omission by a client, for example, a slam dunk omission. And what you do is you take apart the sequence or your client had learning disabilities. And that wasn't identified at the time. You know, or there's a contrary note or you've got video camp footage. But in particular with clients with learning disabilities, it's really important to unpick the circumstances in which they both understood what was being asked, how they were able to marshal the words to give an answer, and how their answer was understood. And so if you think about a recording as having those three elements where there can be the means for a failure to understand what's being asked, what's being said, and what's been understood, then you can unpick a bad fact without needing to be anything other than very curious. [MUSIC PLAYING] When you make the list of areas that are not so good for your case or areas that need more work, how much time do you spend-- I can phrase it as bad facts, for example-- but how much do you spend on dealing with those particular weaknesses of your case? Those are the crucial issues. So often you'll find, let's say, that you're defending in a fraud or representing a client in a disciplinary case of something like that. Often the clients that I represent are highly intelligent and professional people. So you've never got a shortage of instructions. But often what you'll find is that you've got reams of instructions on the easy bits and virtually nothing on the difficult bits because the client can't engage with those because he or she doesn't know what to say about them. And of course, you know that those are the key issues that are going to be focused on in the tribunal or in the Crown Court or by the FCA or whoever it is. And so what you have to do-- and it's difficult-- the timing can be tricky because you don't want to literally the first time you meet the client, sit down, put them under the spotlight and cross-examine them for hours because it's not a good way to build up trust. But there has to come a point where the client needs to understand that these are the key points that actually could sink him or her. And therefore, we've got to find a way through them. And I'm afraid it is then gently forcing them to confront what those issues are and going through all the documents, et cetera, that relate to those issues. And what I will do is I will try and see if there are any holes in them. And think for myself, where that all fits into the bigger case. And then at least to sort of show the client what the landscape is and what all the documents are and make them actually look at stuff. So sometimes clients, they get so worried about a particular point. They just can't face it. They can't deal with it. And so part of it is you've got to actually say to them, right, let's look at this document together. All right, now you have a read of that, all right. Now you can see that that says x, but the difficulty is we're saying y. So we need to think about why that was. Let's take you back to where you were then and then do it that way. And sort of gently force them to confront the issues that are problematic. Because in the end-- and I say this to them, look, in the end, this is what this case is going to come down to. It doesn't matter about all this paper and all this noise. In the end, these big cases will come down to two or three issues. And if we don't have an answer to those issues, then we've got a problem. That's how it is. You an experienced trial lawyer who feels like you've hit a plateau. If you want to take your advocacy skills to the next level, feedback is key. And I have just the thing for you. I'm BB, the voice of the advocacy podcast and founder of the advocacy coach. Every month, I host the advocacy clinic. It's a free and unique online platform for lawyers to practice or arguments or witness handling with seasoned actors. Then receive real time personalized feedback. Whether you actively engage or simply observe, it's an unmatched opportunity to hone your advocacy skills. To join, just sign up at theadvocacycoach.com/clinic. Become unstoppable at court with the advocacy coach. You're partner in your journey to advocacy excellence. Thank you for listening to the advocacy podcast, Journey's Excellence. If you enjoyed the episode, please subscribe and visit us at theadvocacypodcast.com for reading lists and other resources. Until next time.