A week has passed

I have been busy at work. Hence no posts.

The high point of the week, or low point really, was when I was having a conference with a client in order to settle his affidavit. I asked him the difficult question which the barrister on the other side will ask him if the matter came to trial, and he beat his head with his fists, stood up, clutched his chest and looked like he was about to drop dead with a heart attack before collapsing into tears which took a good 15 minutes to subside. And that was just the conference! Imagine what things would be like if he were asked that question in court.

In fact, I can imagine what it would be like. The judge would give him some time to compose himself, and then the question would, one way or another, simply be asked again.

If so, this would be a bit better than MacKinnon v Bluescope Steel, where cross examination of the plaintiff was halted when he had something like a nervous breakdown from which he never really recovered in the course of the trial. It was some weeks before he was fit enough to take the stand again.

The conference had to end there for the day. I was glad that the solicitor was there as well. But it was surprisingly stressful, even if my main feeling, after the initial alarm, was acute embarrassment. Obviously, I also wondered about the client’s case, but there can be a lot of reasons why someone finds answering a question difficult. It is not for me to judge, but in order to advocate, advise and anticipate difficulties, you do need to consider things from the judge’s perspective.

I also wasted a lot of time drafting a reply to a letter from an opposing solicitor who has one trick which he plays over and over again. Basically, this is to seize and magnify any ambiguity, and to profess never to understand anything which he could possibly misconstrue. Unfortunately, in this case an error had been made in some previous correspondence, and he seized on this with gusto. Did you mean [a] or did you mean [b]? Needless to say, neither [a] nor [b] was what had been meant. Thi solicitor would never think of simply ringing up and asking if an error had been made. I am hoping that, in an upcoming interlocutory battle, there will be enough instances of this sort of thing in his correspondence for the judicial officer to notice a pattern.

I try to sleep on any reply, and cut out anything which seems even the slightest bit combative, but this is all very tiresome. The problem is that this sort of thing is even more tiresome for a judge, who is likely to blame both parties, but it is extremely difficult to avoid being drawn into it. “Unedifying” is the word that comes to mind.

So when Friday came and a colleague’s wife came in to take him off to hear the Sydney Philharmonia do Bach’s B Minor Mass, I was tempted, but simply too tired to do it justice.

Today D and I went for a bike ride in the afternoon and I went to E and R’s place for dinner. M and D, parents of boys whom I knew as schoolboys in my former teacherly life, were also there. There was a lot of gossip. M, in particular, is always keen to know about the relationships which people are in, and mentioned that Dv, a contemporary of one of her sons, had now come out and seemed much more happy in himself. Good for him.

2 Responses to “A week has passed”

  1. Legal Eagle Says:

    When I was a court clerk, I used to keep a big box of tissues on hand. People often ended up in tears (particularly if there was some kind of family element to the dispute). They were usually embarrassed, but I’d tell them not to worry about that.

    I have seen a woman collapse in the witness box while cross examined. She had to be taken to hospital, and had some kind of stress-induced paralysis when the trial resumed some days later. And I’ve heard tell of others fainting in the witness box.

    I think I’d be a terrible witness because I do tend to exaggerate – “ALL the girls in my class have their ears pierced, Mum, so I have to get it done too” (actually, upon cross-examination, my mother ascertained that 3 girls in my class had pierced ears but, importantly, one of them was my Best Friend…)

  2. Colin Says:

    Another lawyer blogger! I seem to attract crying clients/defendants crying on the phone, crying in court, crying in conference….crying, crying, crying. Am constantly astonished how little reaction I have to tears.

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