Be The Aubergine

When I was at University a mate of mine used to wear a t-shirt that bore a picture of an aubergine and the slogan “An aubergine having fun.”  It was just a picture of a plain old, inanimate aubergine. So my advice to aspirant advocates is: Be The Aubergine. 

I am not counselling against fun. I am not suggesting adopting a purple hue. It is the inanimate, inscrutable appearance of the egg plant (as an American advocate would have it) that I commend. Lady Gaga would say Poker Face. Lord VFTN says “Be The Aubergine.”

Advocates should rarely interrupt or interject. Nothing is gained by reacting to what your oppenent is saying until such time as you get to say it in a cogent manner to the Judge. One should sit there and keep one’s own counsel. Like an aubergine. 

The rhythm of submissions is fairly easy to discern. The party making the application goes first. The Respondent (the clue is in the name) then responds. The party making the first submissions gets to respond to the response (making them the Re-Respondent, but only if they say “Bo Selecta”). The point is that everyone gets to have their say. There is no need to interrupt with heckles from the floor. This is a courtroom, not the Comedy Club. 

There may be occasions when it is necessary to interrupt. Usually if a misunderstanding is taking the submissions in a direction which is unhelpful to everyone. And the interruption should usually be prefaced by a gentle rising to the feet and a “I hesitate to interrupt but…” Very occasionally a sotto voce prompt might be necessary to your opponent. So recently I was making submissions about a defendant being sentenced for all matters at the same time. My oppenent whispered “in the event he is convicted” to me and I corrected myself. On occasion I have whispered “don’t lead” to my oppenent as a warning before the objection or something similar to head off inadmissible evidence. Like all rules, there are exceptions. 

The interruptions that I am advising against are those that either arise from intemperance or are designed for show. The latter of these two sins is by far the greater, the former the more dangerous. 

Learning the art of controlling one’s reactions is invaluable for the advocate. The tribunal should never be able to discern that you have just received the most damaging or unexpected answer in cross-examination by the look on your face. The only way to maintain this is through a calm demeanour. Never let triumph or dismay speak. Always let control speak. 

The staged interjection for the purpose of showing off to your client is the stuff of sixth form debating. You would have to be the sharpest of wit to even remotely get away with it. But cries of “outrageous” when your oppenent is making their submissions may make great pantomime but have no place in the courtroom. Even if your opponent is being outrageous do not match them by being outrageous yourself. Demonstrate your outrage with measured words, not fiery interjections.

Maintaining the dignity of the courtroom is one of the tasks of the professional advocate. Even when provoked, even when your heart is thudding in your chest at the injustice of it all. This is not the free for all of Speakers’ Corner but the precision of the courtroom. 

At all times Be The Aubergine.   

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