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proofs in order when the advice comes back. The
Solicitor of this calibre will gain great advantages when
the presentation stage arrives. Similarly the Solicitor
should not need Counsel to settle proceedings. I am not
however suggesting that there is no need for barristers
and that the two professions should be merged because
not all solicitors are brilliant and consequently do
require the services of counsel. Similarly not all
barristers have such expertise as to be able to almost
look at the blank file cover and immediately pour forth
the
required
opinion.
Such
barristers
require
a detailed brief, stating in very simple
terms
what the facts are and what legal principles are
involved. But there is a more powerful argument
against such merger. Here I draw on the analogy of the
medical profession, seen in the general practitioner and
specialist. 1 agree that there is a need for specialists in
the legal profession. Even the best solicitor will meet
cases in which there is in his mind a sufficient doubt
that would render it unsafe to proceed. Indeed from
my limited experience of practice, I have come to
appreciate that certainty in a case is practically un-
obainable. Only in the field of debt collecting and of
hire purchase does one find real certainty in liability
and quantum.
In referring to presentation, in presenting the case in
Court, be it the District Court or High Court it is vital
to consider the following points: (1) Clarity; (2)
Simplicity; (3) Putting points succinctly; (4) Developing
them in an interesting way; (5) Presenting them with
integrity; (6) Doing so without any trace of pomposity.
It is not that the members of the tribunal are
stupid, dense or simple minded, but it is a cardinal
rule in practice and procedure that simplicity and
clarity of pleadings are both essential in order to avoid
undue confusion. The notion is that it is better to be
long winded, simple and clear than to be brief and
confusing. To be confusing would invite disaster in
choking the Court with colateral side issues and clog up
the trial. If there are any dangers of complications, they
will be more easily dealt with if one pursues the simple
line. Similarly submissions made by an advocate in a
case made with simplicity and clarity, will attract the ad-
miration and appreciation of the tribunal more readily.
To develop points in an interesting way is not as
easy as one might think. It requires a good speaking
voice and the ability to think ahead as one speaks. It
is this area which highlights the vital importance of pre-
paration.
Integrity in presentation of points is also vital. This
too is linked with the presentation of points without
pomposity. It is a psychological fact, particularly in
Ireland, that no one likes an aggressor. Thus if the
advocate appears agrressive or appears to be trying
to convince the tribunal of a point which does not
appear to the tribunal to be genuine, it may incur the
conscious or unconscious displeasure of the tribunal.
David
Napley
has
observations
on
human
psychology. How
many lawyers pause to con-
sider the simple fact that dislike of an individual will
often extend to dislike of his opinions? Yet there are
still fools who believe it clever to behave in an
Aggressive and even offensive fashion towards the
opposing party, witnesses under cross-examination, and
even the opposing lawyer. Some even have the brazen
effrontery to adopt the same attitude with the Court
which they are addressing. This involves more than lack
of courtesy, it reflects on an absence of appreciation
of the first essentials of simple psychology. Man, we
are told includes amongst his basic wants and needs
the desire to be appreciated and applauded by his
fellows; he is gratified by the recognition of his own
skill and ability, and judges are still human. Thus
most experienced advocates arc mindful of
the
advantages to be gained by insinuating into the
mind of a judge some point which assists their case,
under conditions which he satisfies his own ego in the
belief that the point was one which he had alone dis-
covered, which is decisive and which everyone else had
overlooked.
I witnessed recently such a classic example of this
lack of appreciation of the first essentials of simple
psychology in the Circuit Ciurt. Counsel A for the
plaintiff adhered rigidly to the rules of advocacy,
attempting to present the facts with such integrity,
efficiency
and
expertise
that he
seemed
to
have been surrounded by an aura of justice. Counsel B
on the other hand, badgered witnesses under cross-
examination, particularly a poor innocent book-keeper
who clearly had no interest in distorting the facts: yet
Counsel B treated him as if he were a notorious
perjurer. The Judge did his best to keep an open mind
but the very fact that he had to make a conscious effort
to keep such an open mind was a huge disadvantage
for Counsel B. Clearly Counsel A was engaging in a
battle of wits with an unarmed man.
Similarly in Rathfarnham District Court 1 witnessed
a display of a prosecuting Garda Superintendent who
would not take no for an answer. The Superintendent
tried to make the decisions on behalf of the District
Justice. Whenever an argument arose between the
defence counsel and himself, he would foolishly end the
exchange by sayng "the situation is this and that's
that!" He did not have a very good day prosecuting.
Some advocates do not know where to stop
when extracting an apology f r om a Judge. In the
Paudrigh Hi ughey trial, I was fortunate to hear the
most interesting conversation between Senior Defence
Counsel and a member of the panel of Judges. A point
in dispute was being discussed, concerning the purchase
of certain airline tickets. The learned Judge failed to
grasp one point, but the aforementioned Senior Counsel
rectified this. In the process of clarifying the point, the
Judge was, what one might best describe as gruff with
the learned Senior. He then apologised for not seeing
the point, but did Senior leave it at this: No ! He asked
the Judge "Does his Lordship now see this point?"
Judge: "Yes". Counsel: "And your lordship was
wrong?" Judge: "Yes". Counsel: "That is to say, my
Lord, you were wrong, and I was right?" Judge:
"Yes".
Contempt is not an uncommon feature of Court life:
In a certain District Court, Plaintiff was being cross-
examined by an extremely persistent barrister. The
barrister seemed to forget some of the answers given
previously, and kept asking the same questions again.
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