My Imaginary Friend

Part of my pupillage was conducted by catchphrase. My pupilmaster would throw out the question and I gave the refrain. So, with regard to money received he would say “What do we know about each cheque we get?” and I would reply “You only get half”. “What is the first thing you do when you finish in court?” he would ask, “Ring the clerks” I would chime back (this was before mobile phones were widely used, much to my aged embarrassment). On the importance of developing a prosecution practice he would say “Who has half the criminal work in Manchester?” and I would dutiful reply “the CPS”. Then “What is Thursday?” would produce the response “AutoSport day”. (That was less relevant to pupillage, and it may have been Monday and Thursday was AutoTrader day…..not that this matters now….)

I had a cracking pupillage. Months of observing and discussing the anatomy of a criminal case with my pupilmaster and the other members of chambers. Witnessing differing styles, differing approaches and receiving a wealth of advice along the way. Fantastic training in advocacy. 

One of the headline catchphrases was “What is the secret to good advocacy?” to which the response was, and still is, “Judgement”. I refer to this in my other blog on advocacy The Good, The Bad and The Competent.

There is, however, a further ingredient that I worked out for myself. It took me a long time to work it out. All advocates who aspire to excellence need to have imagination. I will explain why in a moment. Before we move to the why let me just say there is no need to panic. Everyone is possessed of an imagination (sadly the same cannot be said for good judgement). As a child you played, as an adult you read. Exercises one and all for the imagination. 

It is not a question of having the imagination of Roald Dahl or J.K. Rowling. If your imagination is similar to their imagination I would advise you to stop reading about advocacy and start writing Harry Potter and The Chocolate Factory or James and the Giant Goblet of Fire. And give me a credit and maybe a share of the film rights. 

Why is imagination important? Let us begin with empathy. Empathy involves, in part, the imagining of life and situations different to your own and then appropriate understanding of that situation. If you have never walked a mile in another man’s shoes then the next best thing is imagining what it would be like. You cannot get the necessary rapport with some clients unless you can go some way to understanding the context of their life. And in some instances you can only obtain meaningful instructions with that rapport established. The same, of course, can be said of witnesses. An insight into their life may only be possible through the use of your imagination. 

It is probably in this regard, in relation to witnesses, where imagination becomes key. So often you will see advocates cross-examining simply on the basis of their instructions. Some times endlessly. Repetitively. Often a cross-examination that leads to no more information being before the jury than a flat and repeated denial by the witness. But oh, what a little imagination could achieve. 

Only through the use of your imagination may you begin to develop lines of inquiry that unearth important information that will assist your case. It is by thinking about what could have happened or what another piece of evidence could mean that may lead to a line of vital questioning. I say may because you certainly do not embark upon your every imagining. Let your thoughts run wild with imagination, let your questions be tamed by your good judgement. 

Much of a prosecution case is made of pieces of evidence. There are, inevitably, gaps. It is your imagination that can peer into these gaps and sometimes see the way they fit together that is different to the prosecution’s case theory. This can inform the way you look into that evidence, explore it before the jury and shape the route to the verdict. Look at the evidence and ask yourself “what could this mean?” Do not be hidebound by the theories of the other side or your client. Be inquisitive and let your imagination provide the answers. 

Now the word of caution. Never fall into the trap of imagining there is only one way of behaving or reacting. When considering the evidence of a witness do not imagine that they will react in the same way you would act. You have to imagine the way someone in their situation may react and this will cater for a number of different scenarios. All of which you then need to examine. 

You will have heard the warning “never ask a question to which you do not know the answer.” Well, it is rubbish. This narrows the field of cross-examination to the impossibly small. The correct formulation is “never ask a question about which you have not thought through the potential answers”. This is in part a question of judgement, you are weighing up risk versus reward. However the potential answers can only be reached through a thought process that requires ….. you guessed it ….. imagination. 

We do not make up the accounts of our clients and witnesses. When it comes to juries we are not the author but we are the storyteller. It is not about creating a fiction, it is about making the facts live. Take the evidence, add a little bit of imagination, season with a little bit of judgment and combine with your own abilities as an advocate. 

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