Windbags beware

By Legal Eagle

In a speech to mark the 25th anniversary of the creation of the office of Victorian Director of Public Prosecutions, the present incumbent, Jeremy Rapke QC, has suggested that windbag barristers should be prevented from making overly lengthy submissions:

Judicial control of, and intervention in, criminal proceedings ought to extend to all pre-trial procedures and that pattern of intervention ought to be replicated in the conduct of the proceedings themselves. The days of counsel being permitted to run their cases with minimal intervention by the presiding judicial officer must surely have long passed. I long to hear counsel being asked – “Why? Why are you doing that? Why are you asking that question? Why are you calling that witness?” Unrestrained cross-examination must be stopped. Inordinately lengthy opening and closing addresses should be interrupted and halted. Interminable and pointless legal submissions should be curtailed. Trials must remain focused and be conducted in a manner that aids the jury’s comprehension and ability to recall the evidence and addresses. If we don’t solve this problem, we will see more sudoku-distracted juries, and more verdicts open to challenge because of the length and complexity of the cases.

I wonder if time limits should be imposed (rather like Special Leave applications to appeal to the High Court). It might force lawyers to discipline themselves and get to the essence of the case. As I have previously explained, I am a great fan of keeping things simple if possible, because the whole point of being a lawyer is not to complicate but to communicate.

Sometimes, I think that some lawyers reason that if they throw everything at the judge, surely something has to stick. I have seen examples of pointless cross-examination which went on for days. Judges do try to restrain such practices, but they are generally assured that the relevant point is about to come, and are reluctant to ban counsel from continuing altogether in case they prevent counsel from raising a relevant point which results in an appeal. But throwing everything at the judge is generally counterproductive, because the wheat has to be sorted from the chaff by the judge, resulting in a longer time waiting for judgment. Or, if you are trying to persuade a jury, the jury totally loses interest and drifts off.

All too often, I don’t think lawyers sort the relevant from the irrelevant before going to court. I have fallen into this trap myself because of the way in which legal practice operates – you don’t have time to sit back and think about what your central arguments are. I know that many barristers get briefs at the last minute and sometimes barely have time to familiarise themselves with what has happened, let alone what is important about a case. Perhaps if the way in which lawyers were required to present a case were changed, then we would change our case preparation practices.

I was amusing myself with visions of how a time limit procedure might work. I had a little fantasy of three warnings, and then a giant trapdoor opening up in the court room floor… Or maybe a giant roc which transported counsel away. Cruel, I know, but if you had to sit through three days of utterly pointless cross-examination, you’d start to indulge in such fantasies as well…


Maybe windbag barristers need to face more witnesses like the coathanger thief cited over at A Roll of the Dice. Go have a look. Classic.


  1. Posted October 28, 2008 at 8:03 pm | Permalink

    Food for legal thought, as usual.

    “and then a giant trapdoor opening up” or a shepherd’s crook, which they actually DID use in old vaudeville for acts that overstayed their welcome, not just in cartoons.

  2. Posted October 28, 2008 at 10:37 pm | Permalink

    Agree with cutting windbaggery- doubly so for the commercial list.

    Also think his suggestion of moving away from juries in complex trials will, eventually, be implemented.

  3. Posted October 28, 2008 at 11:17 pm | Permalink

    In my uni days as an intercollegiate debater, most of the competitors from other colleges were law students. Anyone who has ever been in a debating team is used to a bell rung once by the moderator when it’s coming up for time, a few times when time is up, and again when over time by a certain amount.

    Bugger the bell: give the beak a taser!

  4. Nanu
    Posted October 29, 2008 at 2:16 pm | Permalink

    C’mon, what else can you do when you have no case except resort to a little obfuscation.?

  5. Posted October 29, 2008 at 4:36 pm | Permalink

    Or, if you are trying to persuade a jury, the jury totally loses interest and drifts off.
    This is an excellent technique if you’re trying to persuade the jury that some vital bit of evidence or issue is actually irrelevant. Why not bore them to death with it producing sleep mode when opposing counsel breaches it.

    Never underestimate the power of obfuscation. Long the staple of technocratic mediocrities everywhere.

    My favourite bit of litigant irrelevancy from the movies is:

    Could you tell us then the amount of bat guano accumulated monthly by the flatwing Chilean fruit bat?

    From The Hip. Hilarious example of the Ruthlessly Careerist Hot Shot Gen-X Yuppie Finds A Soul genre. Tom Cruise being the avatar.

  6. Posted October 29, 2008 at 4:38 pm | Permalink

    Of course we’re making Rapke’s point for him. If they have to cut down on the bollocks then we’ll be, um, cutting down on the bollocks. All good.

  7. Posted October 29, 2008 at 6:04 pm | Permalink

    another ruthless yuppie finds a soul movie
    It is the Ruthless Yuppie Finds A Soul movie. Personally I think it over-rated and this on the contrary:

    We may not get what we need, just so’s long as we don’t get what we deserve..

    So far ,so good. 🙂

  8. Posted October 30, 2008 at 7:46 am | Permalink

    There are, of course, very serious problems with any kind of mandatory time limit. What if your case really is that complex? What if the judge isn’t getting it and you need to repeat yourself to get through to him or her? What if your professional view is that the level of detail which best puts forward your client’s case is a very high one?

    I would strongly oppose time limits, myself. However, there are other options.

    One would be to increase the extent to which submissions are on the papers. Other than actual examination of witnesses, I see a diminished role for oral advocacy in our system anyway. Why not increase the permissible length of written submissions and require them to be filed well ahead of time, and then limit the content of oral submissions to additional or particularly significant matters?

    Another, more practical option, is to let judges have more discretion to cut counsel off. Many judges are hesitant to do this, either because they were barristers themselves, because they think it might lead to an appeal point, or because they simply believe that counsel should have ‘as long as is needed’. If it were made clear to them that they can – and should – cut counsel off where appropriate, then this alone would help, and counsel would know that they always had that hanging over them.

  9. Posted October 30, 2008 at 9:15 am | Permalink

    The shepherd’s crook idea is funny, but I’d also suggest the 10 ton weight a la Bugs Bunny. Or maybe the anvil ditto (or was it Coyote and Roadrunner?)

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