Silence is Golden

I am trained in the Hampel Method. This is not a type of breathing designed to allay my fear of flying, heights and unfeasibly cheery Scotsmen. It is not a method of yoghurt weaving favoured by certain sections of Chorlton society (that is a joke for only the Mancunians amongst you…) The Hampel Method is a method of training advocacy. I must confess I scoffed at the idea of advocacy being taught but the Hampel Method is actually pretty darn good at laying down the basics and improving certain areas of an individual’s advocacy.

The first thing they tell you when you are schooled in the Hampel Method is that you should leave the war stories behind. Nobody wants to know how great you once were in a case, nothing is learnt by you telling the student of advocacy of how you once demolished a witness and the tale of the set piece flourish of producing the answer the witness has just given on a piece of paper from your pocket with a “how could I have known that unless my client is telling the truth” line to the jury is the stuff of Magician School, not Advocacy School. 

So let me break the rule immediately. Let me tell you one of my favourite war stories. And I do so because it perfectly encapsulates the little bit of advice that I want to get across in this blog. It is a totally true story. I am not one of the advocates involved but I was in court and witnessed it first hand. 

There was once a PCMH, that is the hearing at which the defendant enters his plea and the advoactes tell the Judge a little bit about the case (such as which witnesses are going to be called, how long the trial will last, what matters of law can be anticipated). In fact, this was so long ago it may have been a PDH. The modern amongst you will now know it as a PTPH. But let us get over that initial detail and get on with the story. 

The case that was before the court involved a man who objected to his neighbours. He particularly objected to the children, a boy and a girl. He took the greatest offence at the boy and the girl repeatedly kicking their ball into his garden. This much, I discovered, was agreed between the Prosecution and the Defence as I listened to the PCMH meandering onwards. The issue in the case was simply this – the defendant said he had intended to shoot the ball with his air rifle and that it was an accident that he had in fact shot a child….or two. They were only flesh wounds, you will be glad to know. But the Prosecution said that he had intended that which had happened, a pellet in a buttock of each transgressing child. 

The trial was fixed for the following September and the necessary orders were made. A PCMH that had proved a brief distraction from the usual diet of burglaries and tenner bags of heroin was about to conclude. With everything done and dusted the defence barrister (who shall remain nameless and is no longer an advocate in this jurisdiction) got to his feet and addressed the Judge;

“Your Honour, with them being neighbours and all that, it is within my client’s certain knowledge that the complainant family, his neighbours, as it were, are due to emigrate to Australia in June, and that being the case, may I invite my learned friend to consider at an early opportunity the viability of the prosecution that is going to be without a single witness to events come September and that the prosecution take an early view of this matter so as not to prolong the suffering and anxiety of my lay client….”

Which goes down in history as the greatest own goal in advocacy I have ever witnessed. Prosecution counsel immediately got to his feet, thanked his learned friend for that piece of information and invited the court to bring the case forward to before the anticipated departure to Australia. Which the Judge duly did. 

This truly snatched a defeat from the jaws of a certain victory. This hearing took place so long ago that, not only is the defence barrister now overseas, the Judge has passed away and the prosecution barrister is no longer practising, but this was the days before video links and easy admissibility of hearsay evidence in criminal trials. You can tell how long ago it was by the fact that both sides were represented by barristers in independent practice.

The absence of videolinks to foreign climes and trials in the absence of witnesses means that, had the defence barrister kept his powder dry there was a prospect that his client would be acquitted in the September. As it was, he was tried in the May. Sadly I do not know the outcome. 

This war story illustrates one of my advocacy bugbears and the reason why I am right to condemn it. Just because you are an advocate it does not mean you have to go about advocating all the time. There are many instances when the greatest advocacy you undertake is what you do not say. Many of my finest hours in court have been the times when I have got what I wanted by saying very little. 

The enemy of good advocacy is the advocate who likes the sound of their own voice. There are times when it is just tiresome, the advocate who has nothing to add to the hearing but wants the client or the solicitor to see them doing their bit. Tiresome can, however, also be troublesome. Pointless advocacy can often turn the mind of the listener, the Judge or the Jury, against the advocate who drones on. If you say twenty pointless things, it is difficult to spot the one pearl of wisdom that you hit upon. This is where Ronan Keating and I have something in common, you say it best when you say nothing at all.

It is also a case of “loose talk costs lives”. The advocate who feels the need to add their two penneth when the victory has already been secured does nothing but risk undoing that victory. Whether it be the question too far in cross-examination or further submissions to a Judge who is with you, all you are doing is risking that which you have gained. You can have no idea, until it happens to you, how frustrating it is for your co-accused counsel to let the other side back in because they feel the need to have their say. 

If you have nothing to add, then keep your bum firmly on the seat. 

And the story of the over sharing advocate that I have just told you shows the value of patience. The value of not saying something until you have thought it through. The value of keeping your powder dry. A brilliant point can be the worst point, dependent upon when the point is made. Trying to keep your advocacy concise and economical is not only good advice for advocacy that is easy to listen to, it is also a good discipline to ensure that your advocacy is the result of proper judgement, not just a desire to be heard. 

All advocates should, in reality, like the sound of our own voice. But only when you are hitting the right notes. And never, never, just for the sake of it. 

3 thoughts on “Silence is Golden

  1. heleblundell

    Excellent blog. My training principal used to say something similar – ‘never gild the lily’ – advice I used to my advantage many times!

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  2. Defence Brief

    I completely agree. I also think that many DJs in the magistrates know this too and so do their best to force out as much information at the pre-trial stage as possible to pin a defendant’s colours to the mast early on. For example, before one DJ last week I was repeatedly asked who said what, who did what, when they did it, etc etc. This was at a first appearance in court – the only reason the judge wanted so much detail was so he could write it on the case management form to use against my client at trial should anything said there be different from what was said at the first appearance – and yes, I have seen magistrates rely on the case management form as their reason for disbelieving a defendant.

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