The Gazette 1975

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. 167