Briefs 28: Listen at court

(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 favorite podcast platform and visit us for additional resources at theadvocacypodcast.com. - I'm your host, BB Videjo. And today's brief episode dives into the new on start of really listening in court. With insights from Joe Delahunti Casey on the diverse skills required in trial advocacy. Lucy Cornell's wisdom on the power of silence and James Perreira Casey's vivid examples of recognizing and utilizing more than mere words. This episode is a fitting conclusion to the brief series. (upbeat music) - If you can use words, and you can use words both to communicate with people and to communicate on their behalf, then that's a skill which we should really learn to value because so many people don't have the ability to articulate what their innermost feelings are. So for me, it's the ability to make a communication linked between my clients and then between me and the other advocates and me and the courts. All of those types of communication are very different. So I think we should be more frank about the different styles we have in different ways of getting that relationship established because you've got different goals as a result. But all of it requires you to be prepared to listen as well as speak and to read the rooms of the room and the client or the environment. So I think it's a really sophisticated process that we go through when we're a barrister. Very easily, we sort of take for granted the skill base we're using, but it's a really sophisticated skill set that you eventually hone as a barrister. (upbeat music) Can I talk on pause for a moment because I rarely use the word pause because modern world has interpreted it as something that is waiting for five seconds. Holoness, and actually in the pause, there is so much going on if we think about the subtext and the emotional and primal layers underneath. So when you give a moment for an idea to land and you sit in it, don't sit vacantly. Observe what's happened in the room because of what you've done. And that's where the real truth lived. There's a really interesting information in that silence. I mean, people talk about being scared of the silence. I think silence is rich with information. And I think people get scared of silence because they're thinking that people are looking at them. So it's suddenly about it becomes subjective. But actually, if you think of the pause a time when you can look outwards from yourself to investigate what's happening now for everyone else, it's the pressures off. That's where some really good work can be done in the silence. How do we pick up on the subtext? What should we be looking for? Oh, baby, this is my favorite, most delicious part of speaking. Subtext is delicious. That sounds so theatrical, but I mean it deliberately because so much happens in the subtext. So let's define subtext. And what I mean by subtext is, what else is going on in the room other than the words? This is a trap for lawyers as well because that's the world you are educated in is in the words. Is that we become so reliant on the truth in the words. And a lot of the time that's what you're investigating is that what you mean by that word or phrase. So you're investigating the truth in the words. But because we as a culture and a generation are so text dominant and we use words too much, too many words that we become so reliant on them that we forget to read what else is going on. So what else is going on? It could be when someone says something, but we know they mean something else. So we have an instinct that they mean something else. Sometimes the meaning is totally different from the words that are being said. And barristers are quite good at going in and investigating when there's a dissonance between the meaning of what someone's saying and what they are actually saying and investigating and saying, well, when you say that, did you mean XYZ? Then the other layers below the subtext, there's the emotional energy that's going on. So you might see a witness, when you will see it, a witness might tear up or get stern or reluctant, they might push back or they get stuttery. Often we see that happening, but good advocates will go in and investigate that. A lot of the time advocates, because they're so stuck to their notes and they're reading their questions, they're not even looking at the witness to read all of that rich information about what is going on for that human being. Why is their jaw flicking? Why are the muscles in the back of their jaw flicking? Why are they holding their breath? Are you even aware that your witness might be holding their breath? Can you feel your opposing counsel getting prickly without actually turning around and seeing that? If you're aware of all that stuff, that is really useful, truthful information. What are the behaviors going on in the room? And why is that happening? Why is the witness over talking? Why is the judge falling asleep? Why is the judge holding his or her breath? Why is my opponent's opposing counsel sending me barbs? All of this, we kind of read it, but we try and ignore it and clutch to the intellect, clutch to the words we've prepared earlier. But actually all of this stuff that's going on underneath the words is food for truthfully what's going on. And if you have the space, and that's why you want to be arriving and breathing and dealing with moments, if you have the space, we intuit it. And I use that word deliberately, we intuit it. We haven't instincted it's happening. But if you have the space to firstly read it, the stuff underneath, then secondly, acknowledge it. And then thirdly, take time to work out how you're going to deal with it. Then I think you get into the truth of it faster. And dealing with it doesn't mean you have to step in and say, I see you're crying, they're witness. But it might be that you navigate that moment. And maybe you decide, this is too much. I'm going to go somewhere else so that she has time to breathe. So it helps you navigate. And that's why we need to go right back to simple arriving, breathing and choosing the moments and creating space. Because it's this so much going on below the text. One thing I do now, which I've never would have had the courage to do in the past. And it's come from coaching is cross examine based on body language, right? I would never have done that. What one learns from coaching and therapy is that the body sends out signals which the person can't control or often isn't aware of. And of course, you can't always read body language accurately. And it would be arrogant to suggest that one could always do that. But one can use it. So I'll give you an example. I was cross-examining in an expert a few years back. He was a traffic transportation expert. And he'd made some reach some conclusions about traffic impact and capacity and so on from a development. My client was promoting. And it looked like there was some kind of basis for it, but it wasn't very clear. So I said, well, you know, what's the basis for what you've said? And he said, well, you know, that's my judgment. And I said, yeah, sure, but what's-- I appreciate it's your judgment. But what's your judgment based on? And he more or less gave the same answer. And then the last time I asked it, he put his hands on his heart. And he said, I know that that's the way it's going to be. And he pressed his hands on his heart. And so I paused. And I said to him, just show the inspector. So we have planning inspectors in our planning inquiry. Just show the inspector what you just did. And of course, he didn't realize what he'd just done. So I said to him, do you mind if I show the inspector what you just did? And this is another thing I like doing, which is to get permission from the witness to kind of take their power away. Let me show you what you just did. And once the witness says, yes, the witness has surrendered, you know, some of their authority, right? Which has given me another example, which I'll tell you in a second. And I said, I've put my hands on my heart. And I went, sir, the witness just did this. So I said, you know, Mr. Smith, what does this mean to you? Oh, no. What part of your body were you touching in my heart? He said, so what's that mean to you when you put your hand on your heart and you answered that question. And in the end, he said, well, I just feel that that's the way it's going to be. And of course, if you're an expert and you based your opinion on feeling, you're finished. So not only did that finish him then, but then anything I didn't like that he gave in his evidence later on, I would then put my hand on my heart. So Mr. Smith, is that another of your feelings? So if I'm sitting down planning a cross examination, I think to myself, what do I need to bring to the relationship with this witness to further my client's ends? And that's a different question to thinking about, you know, what do I want or what do they want? It moves beyond the kind of me and the you to a kind of us space, if you like. And the reason it's powerful is because it helps develop intentionality, you know, because it leads on to the question of, how do I need to be in order to create this relationship? So it helps you not just show up, but actually decide how you're going to be. And I'm going to expand on this in a moment. But it also works in the realm of the hidden, the space between me and a witness, or you and a witness, or you and an opponent, or you and a judge, is an unspoken space, right? And if you can create it, it can work for you without you having to make it obvious. So I'm going to say you've got someone else on your side because the relationship is working for you. So let me give an example, right? I might think to myself, you know, what do I need to bring to this relationship? It might be trust, or it might be excitement, or it might be acknowledgement, or it might be authority, or it might be humour, it might be intimacy, it might be vulnerability, right? These are all qualities that we can kind of put into the relationship space. They might change in the course of cross-examination, you know, because depending on the theme that one's cross-examining on, you might want to change the flavour of the relationship to make it conducive to that theme. But once you've got these ideas, you can then ask yourself, okay, if I need to bring authority, how do I need to be? And that will affect your obvious things, like your voice, your tone, your stance, your presence, your pace, the words that you choose to ask the questions, all of those things. So these are like little lenses, or organising principles that you can then. When you talk cross-examination, what you're really taught conventionally is, what information do you need to get out? How do you ask a leading question to get the information? This is all the other stuff that packs around that, that influences that, and for me, it's a far more resourceful way of looking at things, because you're making sure that from the foundations to the very heart of the question, everything is kind of aligned with what you want. And let me just give a very simple, practical example. So I was doing a case, a few years back, a compulsory purchase case, a compulsory purchase where you take someone's property, government takes the property by compulsion, and you have to show a compelling case in the public interest to do this. One of the areas that we were acquiring was two properties that were owned by a family, and they had come to this country in the '60s as immigrants from South India and bought a shop. And then they had worked hard, and got the income from the shop and bought the flat above them, and then they'd rented that out and bought the property next door. And all they wanted to do was pass it on to their children. And it was going to be taken away, and they'd get some compensation for it, but the compensation never quite reflects value. And also there's this sentimental, emotional element of what they had achieved and done when they came here that they wanted to pass on. And so the lady who was the kind of head of the family turned up with her council and her expert witnesses, and she was absolutely quite understandably angry and furious. Wouldn't agree with anything we had to say. So when I started cross-examining her, I'd gone through this press. I thought what's really needed here in this relationship? What I thought was what's needed is acknowledgement. No one is actually, has actually called out the fact that this is a terribly distressing thing that's happening. So I started cross-examining her and I said, you know, this is whatever. I just want to start, I say, this must be really, really upsetting for you to face the threat of having everything you've worked for taken away from you. And she said, yes, it's awful, and she started crying. And I said to her, well, I just want to take a few moments in this inquiry room to acknowledge what you're going through and how challenging it is for you. And I sat there quietly for about, it's probably only 30 seconds. It seemed like a lifetime, it's probably only about half a minute. And everyone just sat there quietly. No one said anything. And she cried and she was allowed to cry and after she'd done that, I said, you know, I do have to ask you some questions. So are you okay to move on? And she said, yes, thank you. And we moved on and everything from then on was fine. Now, did I need to technically, in order to get evidence out of her, do any of that? Absolutely not. But did I need to do that to get the evidence out of her? Yeah, absolutely, because this was the thing in the relationship between my client and her that was getting in the way. Nobody had said to it, yeah, it's not really nice this is what you're going through. And so it's that element that I'm talking about that enables interactions to be so much more resourceful, whether it's cross examination or it's submissions with the judge, you know, whatever it might be. I don't want to give you another example that came to me before we came online. I remember one of the great former members of our chambers is Keith Limblom, who's now a Justice Limblom in the Court of Appeal, who's a fantastic advocate. He would just charm people, he'd be like sitting in the living room, he would charm them. And towards the end of the cross examination, if I was taking notes, I was lucky to be led by him a few times. He'd be asking questions. And you think, first of all, you think, how did you ever imagine that you could ask that question? And how on earth is the witness answering it favorably? And it would be like, you'd already thought he got 100% and there'd be like another 15% that would come out. And it would just come from nowhere. And literally my pen would be shaking because I would know how on earth is this happening, how on earth is this happening? But he was really smart at figuring out how to influence the witness. And I remember one thing he did when it was a landscape witness who was being cross examined. We'd found a proof of evidence from another case they'd done that was quite damaging. And we produced this document and at the start of the cross examination, he said, "So missone, so you can confirm your name is so-and-so, yes." And you used to work for this firm, yes. And I'm just going to show you this document. Is this a proof of evidence signed by you, yes, expert report, yes. And can you confirm it's on landscape matters, yes. And if we turn to this page, you know, and he did just enough to remind her of what she'd said about something in the pub, but didn't ask her any questions about it. And then he said, "Okay, well, we'll come back to that later." And it was like lighting a fuse under the witness, the influence, the whole of the rest of the cross examination, because she never knew at what moment the thing she didn't want to face that was inconsistent with everything she said was going to come back to her. And it created this tension in the relationship between Keith and the witness. And it meant that she was never relaxed. She was always on guard. She could never quite commit to what she wanted to say, because she knew there was something there that was going to undermine it later. And it was absolute genius. And it's things like that that I'm talking about. How do we create a relationship that furthers our clients ends? And that's what that exercise was really about. 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 Baby, 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, your partner in your journey to advocacy excellence. [MUSIC]