A guide to court proceedings and how to avoid them, if you can
There is nothing like a trial for sharpening you up. Popular perception would have barristers in court every day, plying their trade indiscriminately up and down the country in the High Court, crown courts and county courts alike.
In fact, for those of us who do not do crime, trials are relatively rare these days. A trial is a labour-intensive, and therefore costly, way to resolve a dispute. The following factors need to be present for a claim to end in a trial: the sums of money at stake are so enormous that the cost of the trial is a drop in the ocean by comparison; the dispute involves a point of law upon which there is no legal authority, or upon which authorities conflict, so neither party has a clear idea of the likely outcome; one of the parties is funded by a (solvent) insurance company which has a very clear idea of the likely outcome, but has resolved to make a stand to deter future claims; one of the parties has been advised, in no uncertain terms, as to the likely outcome but is determined to persevere, on 'a point of principle'; one of the parties has been badly advised that they are 'bound to win' and will recover sums out of all proportion to their likely entitlement. Litigation veterans know only too well that even a cast-iron case has no more than a 70 per cent chance of success; and one of the parties is bonkers.
Of course, more than one of the above factors can, and often do, coexist. Thus, a trial is guaranteed when principled claimants, supported by their no-nonsense insurers, sue a fabulously wealthy defendant advised by a mad solicitor.
As I said, trials are relatively rare, and in the intervening months or years, one's memories of these cases can become a little hazy.
I have just returned from a two-week trial involving numerous witnesses of fact, all ranked against each other, to support a five-figure claim and a counterclaim for not much more.The case required expert evidence from six experts covering eight disciplines. My recollections are razor sharp, so I thought I would share them with you:
A trial is hard work. The court usually sits from 10.30am to 4.15 in the afternoon for, say, five hours. But every hour of court time involves at least the same amount of time in preparation.
And then, of course, you have to discuss unexpected points with the clients or the experts after court, and with the solicitor over the telephone beforehand.
So when you add on the palaver of getting to and from court, with countless files, books and a bag of robes, it is not surprising that you are still up at midnight most evenings.
The clobber is inconvenient. As an unreconstructed traditionalist, I have always been in favour of wigs and gowns. But having carted mine the length of the country and worn a wool gown and horse hair wig in the hottest city in the land, in the most airless courtroom with the most defunct air-conditioning system, I am now open to persuasion. Mercifully, after one day of melting heat the judge ordered no wigs, and we did without them for the duration.
The duties of experts, enshrined in Part 35 of the Civil Procedure Rules, are important. If a judge is looking for reasons to prefer the evidence of one perfectly competent architect over another, the fact that one has not signed a declaration to the effect that they believe the facts stated in their report are true, and the opinions correct, is one very good reason. The fact that one not only knows their instructing party, but is still working for them, is another.
It is easy to score cross-examination points against a careless expert. The introduction section of most reports merely sets out the background to the dispute. If those facts contain obvious errors, the expert's integrity can be readily undermined. Remember, barristers have nothing else to do in their hotel rooms at midnight but to pick holes in experts' reports.
Finally, if you take a hole-punch, you will be the most popular person in the courtroom.