Camberwell Green Magistrates’ Court. Circa 1989. The eager young pupil is trying to find the girlfriend of his client to ask about bail addresses. He shouts out (in the faux posh accent he is putting on because he is still trying to be ‘a barrister’):
‘Is AB’s girlfriend here, please?’
Four women all shout ‘Yes.’ Each looks at the other, shocked. A fight breaks out. The pupil slips quietly away and goes to the cells to see his client. He tells him what has happened. The client uses a single word as an expletive, noun and verb. Despite the pupil’s best efforts, the client doesn’t get bail. The pupil telephones the solicitor to tell him what happened. He already knows. Girlfriend 2 has rung him and described the incident to him. He then asks ‘Did you at least get the legal aid forms signed?’ The pupil has committed the cardinal sin. In the mayhem, he has forgotten to get the forms signed.
A small, defeated ‘errrr’ emanates from the pupil’s mouth.
The solicitor utters, calmly, ‘Don’t worry, I’ll sort it. Not your best day at the office, mate.’ The pupil knows, however, that the solicitor is silently thinking of the same word as the client used, probably in the same three ways. The solicitor plainly despises him and will never speak to him again.
The pupil decides that he will never again be briefed by anyone, that his clerks hate him, his chambers hate him and that he should go and join a monastic order dedicated to silence and the pursuit of nice handwriting.
I still wince when I think about that day. Indeed, there are a number of episodes in my pupillage where I did things which still make me cringe a little. The learning curve during pupillage really is a steep one. For every cringe-worthy moment, however, there are others of which I am proud or at least remember fondly. People were kind, supportive, helpful and (sometimes) very forgiving.
I am not alone. In May, I posted a tweet inviting my colleagues to share their disaster stories; plainly, from the number of responses I received, we all found the sharing process highly therapeutic.
So, as we enter the period when the new pupils begin their journey into practice, the team at Counsel thought it would be helpful to them if some of those who have ‘made it’ and who now seem so in control of everything, shared their early disaster stories.
All mistakes are to be avoided, if possible. The reality is, however, that we all make mistakes; particularly when we are starting out. What matters is that one learns from mistakes and strives not to repeat them. Indeed, the process of identifying strategies for avoiding mistakes (or, at least their repetition) is part of what makes for an effective advocate.
If you are about to start pupillage, don’t think for a moment that you are the only one feeling paranoid, unworthy and incapable of walking in a straight line without tripping up over your own laces. Many of us felt (and still feel) the same way but we kept on walking, some of us changing into rather shiny patent shoes with buckles along the way.
Let the therapeutic sharing commence…
A miscellany of mistakes
Damian Woodward-Carlton QC
Apparently Farnham and Fareham are different places – this is not something to which I paid sufficient attention in one of my early briefs. I was so focused on understanding the law relating to unfair dismissal and the facts of my case that the fundamental facts of geography eluded me. Little approaches the lurch from confusion to horror when you realise that your case is listed in a different town. In this case a rather expensive taxi journey solved the problem. I would like to say this was the last time that I made such a mistake – it was nearly the last time…
I was asked to represent a child in seeking criminal injuries compensation for multiple abuse. Whilst I knew the facts backwards and the new recently introduced procedure adopted by the panel to decide such compensation, I had not noted the date of the claim meaning that this would be decided under the previous, much more demanding procedure – requiring detailed analysis of similar type cases and awards (using Kemp and Kemp) to argue for the quantum of award. Sitting in a waiting room and being informed that the panel would like to know which cases you are relying on and of course not having Kemp and Kemp to hand (the days before laptops/iPads), is not dissimilar to finding you have arrived in the wrong town. Another advocate waiting had one volume (not necessarily the most appropriate one) and kindly lent it me for a few minutes – it certainly tested the ability to argue from rather strained analogy. I decided that a firm grasp of procedure was probably a good thing.
If your pupil supervisor asks you to buy them a sandwich at lunchtime and it subsequently collapses all down their front minutes before they are due to start cross-examining – that is not your fault.
One I’ll take to my grave
Richard Atkins QC
Most barristers have a case that they ‘take to their grave’ and I am no exception. I was about three years’ call representing a man charged with assault. He was arrested as he fled the scene. A doorman who had witnessed what had happened and had given chase to the man he saw committing the assault was mistakenly arrested by the police before they caught the perpetrator. When the police later realised what had really happened the doorman became a witness. The doorman had not attended an identification parade but gave evidence of what he had seen. Just before I was due to cross-examine him, it became apparent to me that there had only been one police van at the scene and that after the doorman had been arrested and placed in it, my client must have been placed in the same van. The doorman had made no mention of ever having seen the perpetrator again and certainly made no mention of them having been in the police van together. What I could, and should, have done, was asked the doorman no questions about the police van. I could have established from the police that only one van attended the scene and that both the doorman and my client had been placed it. I could then have made the comment to the jury that both men had travelled in the same van and that the doorman had never once suggested that they were in there together. Sadly, what I did was to ask a question that I did not know the answer to: ‘Having been put in the police van did you ever see the man you witnessed committing the assault again?’ The answer is as painful today as it was 27 years ago: ‘Yes, he sat next to me in the police van.’
The moral of the story is never ask a question to which you do not know the answer and always avoid asking that unnecessary extra question.
Rookie errors and what I learned
Chris Daw QC
For the first few months of my second six, in the mid-1990s, I was very busy indeed.
In just one calendar month I defended in no fewer than 20 full summary trials, all effective; a blur of stolen cars, loitering, shoplifting, threatening behaviour and common assault. A blizzard of charge sheets, hastily assembled files of handwritten (unreadable!) witness statements, scraps of instructions on the back of envelopes, or whatever other stationery came to hand.
It was a thrilling and exhilarating time. I believe I even won a couple of them, but don’t bet your life savings on it. But one thing kept happening to me, day after day, time after time. As soon as I stood up, whether to examine or cross-examine, I just could not remember the name of any witness, standing in the box in front of me. The problem got worse the more important the witness and (the irony!) the more brilliant my questions became, at least in my own mind.
‘And so, how do you explain why your note is timed at 22:42 but these events took place a full 11 hours earlier, PC errr… [urgent scrabble on the bench for witness statement /looking through notes/asking for ‘a moment, Your Worships’]… errr… Officer?’
Reply: ‘It’s PC Morrison, sir, it’s on the front of the notebook… the one in your hand.’
Lesson: write things down and have them to hand, right in front of you. For at least six months after this I used scraps of paper; the homemade legal equivalent of flashcards, with the name of the witness in the box in big bold capital letters – ‘PC MORRISON’.
It did the trick. I also started to ensure that every document I needed was right at my fingertips, every time I stood up in court. Trust me, it will make you look well clever. You might even get silk one day. My top tip, then = flashcards.
Right time/wrong place
Julia Smart QC
It was April 1994 and I was in the first month of my second six pupillage at a mixed common law set. This meant I could be sent to any court or tribunal in any area of law and usually at extremely short notice. There was no internet, no email, no laptops and no mobile phones. My court diary was an entry in a large red book which sat on the senior clerk’s desk.
I was in my second week and in Chambers at 8.30am when my clerk rang: a brief was coming in by fax for me to attend the county court representing a firm re-possessing a hire purchase car. I had represented this firm the week before making a similar application – I knew how to do this. The hearing had been missed in the list. I hovered over the spluttering fax machine as my brief arrived slowly page by page. I glanced at the backsheet. Brentwood County Court – what luck this was the same court I had attended at the hearing the week before – I was a seasoned pro. I even knew exactly how to get there. While the brief came through I rang the National Rail Enquiries – the only way then to find out train times. I could just still make it to court with ten minutes to spare.
I ran out the door of Chambers and straight to Chancery Lane Station, frantically reading my brief on the train, calculator in hand. I sailed through the doors of Brentwood County Court at 9.50am feeling very pleased with my logistical prowess.
There was the same usher I had seen the week before. I was now practically a regular. There was just one problem; my case was not on his list. I checked my brief and showed him the case name on my backsheet.
‘Oh dear Miss,’ he said pointing a stubby forefinger at the top line. ‘You’re not the first. Your case is listed at Brentford County Court.’
The colour drained from my face. ‘Are you on public transport?’ I nodded meekly – ‘You’ll be lucky to get there before lunchtime.’
Bernard Richmond QC is Head of Chambers at Lamb Building and practises in criminal and inquest law. He sits as a Recorder and Assistant Coroner. He is a Bencher at Middle Temple.